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Issue 3 - 2012 Newsletter

    In This Issue:
  • What’s New for Employers in 2013: California Legislation Update

What’s New for Employers in 2013: California Legislation Update

As in all other years, 2012 brought new laws from the legislators that will affect California employers. Here are some of the new employment laws to expect in 2013:

Breastfeeding Now Included in Definition of "Sex": The Fair Employment and Housing Act ("FEHA"), California's anti-discrimination law, has been amended to make it clear that breastfeeding and conditions related to breastfeeding are included in the definition of sex (i.e., discriminating against an employee because of breastfeeding is discrimination because of sex).

Tip: Consider amending your policies to reflect rights regarding breast feeding.

Religious Grooming and Dress Practices: FEHA states that employers are required to reasonably accommodate the "religious beliefs or observances" of an individual unless the accommodation would be an undue hardship on the employer's business. FEHA has been amended to make it clear that a person's "religious beliefs or observances" includes his or her religious dress practices (such as wearing particular religious clothing, head or face coverings, religious jewelry, etc.) and grooming practices (including all forms of head, facial, and body hair that are part of the person's observance of his or her religious creed).

Tip: It is important that managers and supervisors are trained on this new law and that they are aware of the employer's obligations to reasonably accommodate religious beliefs or observances, including dress and grooming practices.

Additional Pay Stub Requirements for Temporary Services Employers: Beginning July 1, 2013, temporary services employers must include information regarding the rate of pay and the total hours worked for each temporary services assignment on employee pay stubs (in addition to the other required information). Security services companies are not covered by this requirement.

Additional Information For Wage Information Form Required for Temporary Services Employers: Beginning July 1, 2013, temporary services employers must include the name, physical address of the main office (and mailing address, if different), and the telephone number of the legal entity for whom the employer will perform work on the written notice (notifying employees of certain wage-related information) that must be provided to new hires. Security services companies are not covered by this requirement.

Labor Code Section 515 Amended to Prohibit Certain Salary Agreements: Effective January 1, 2013, any agreement that provides that the payment of a salary to a non-exempt employee is intended to cover both regular and overtime hours will be invalid. In other words, payment of a fixed salary to a non-exempt employee will be considered to be payment for an employee's regular hours only, regardless of any agreement stating otherwise.

Social Media Passwords: Under a new Labor Code provision, Labor Code Section 980, effective January 1, 2013, employers may not require or request an employee or job applicant to provide them with a username or password so that the employer can access his or her personal social media (such as a blog, instant or text messages, or website), or require the person to access his or her personal social media in front of the employer, or require him or her to disclose any personal social media to the employer. The new statute is not intended to affect any existing rights to require an employee to provide personal social media information reasonably believed to be relevant to an investigation into employee misconduct or unlawful conduct, and does not prevent an employer from requiring employees to disclose any password or username for an employer-issued electronic device. Employers are prohibited from firing, disciplining or otherwise retaliating against an employee or applicant for refusing to comply with a request that would violate the new Labor Code provision.

Tip: Train your managers, supervisors, recruiters and anyone else conducting interviews or managing employees regarding requesting a social media password or access to private social media.

"Injury" Defined for Purposes of Pay Stub Violations: Under the current Labor Code Section 226, an employee is entitled to damages for an employer's failure to provide accurate, itemized wage statements, if the employee can show that they have suffered an injury. Labor Code Section 226 has been amended to state that an employee is "injured" when: (1) the employer does not provide him/her with a pay stub; or, (2) the pay stub does not include all the information required by Section 226 and the employee cannot "promptly and easily" determine from their pay stub one or more of the following: (a) the amount of the gross or net wages paid to the employee during the pay period, (b) the deductions the employer made from the gross wages to determine the net wages paid to the employee during the pay period, (c) the name and address of the employer or legal entity that secured the services of the employer, and/or (d) the name of the employee and the last 4 digits of his or her social security number or an employee identification number as specified. These new requirements will go into effect on January 1, 2013.

Tip: Make sure that your pay stubs have all the information required by Labor Code Section 226. Do not assume that if you are using a payroll company that the information is correct. For example, if you provide non-discretionary bonuses to non-exempt employees, make sure your rate of pay for overtime is accurately reflected on the pay stub.

Personnel Record Inspection Rights: Labor Code section 1198.5 was amended to make it clear that both current and former employees or their representatives have a right to inspect their personnel records, and that employers must permit them to inspect the records or provide them with a copy of them within 30 days of receiving a written request. The amended statute places some limits on employee requests to inspect personnel records-for example, if a former employee has a lawsuit pending, then the employer is not required to make his/her personnel records available for inspection. The statute was also amended to require employers to maintain personnel records for at least three years after the employee's termination. Employers who fail to comply with the requirements may be subject to a penalty of $750.00. These new requirements also go into effect on January 1, 2013.

Commission Agreements-Reminder: By January 1, 2013, whenever an employee enters into an employment contract for services to be rendered in California and the payment involves commissions, the employer must: (1) put the agreement in writing; (2) describe the method that will be used to calculate commissions and pay them; and (3) get a signed receipt for the written contract from the employee.

For more information about any of these new laws and their implications for employers, please contact the shareholders at Simpson, Garrity, Innes & Jacuzzi, P.C. - Paul V. Simpson, Ronald F. Garrity, and Marc L. Jacuzzi.

Issue 1 - 2013 Newsletter
Issue 2 - 2012 Newsletter

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