Now that the end of the year is fast approaching, it’s time to review what new laws the Governor has signed into law from the 2012 legislative session. Some of these new laws have previously been addressed in prior newsletters, but they are worth mentioning again here.
Unless noted otherwise, all new legislation goes into effect on January 1, 2013.
Social Media and Personal Passwords
The issue of the use of social media by employees in the workplace has taken on an increased priority for employers. Employers should be monitoring their employees use of social media during working hours and use of the employer’s equipment.
Many employers are now accessing various social media sites to conduct background checks on applicants and also to monitor their employees conduct. Such is permissible within certain restrictions so that there is no claim of invasion of privacy, among other potential claims.
Specifically, under the recently passed law, an employer is prohibited from requiring or requesting employees or job applicants to provide user names or passwords for personal social media accounts so employers can gain access to those personal accounts. (AB 184). An employee may not be discharged or disciplined for refusing to disclose such information if improperly requested.
Employers may not require or request an employee or applicant to:
- Disclose a user name or password for the purpose of accessing personal social media.
- Access personal social media in the presence of the employer.
- Divulge any personal social media (except in relation to employer investigations, as discussed below).
The prohibitions do not apply when the request is made of a current employee as part of an investigation into allegations of employee misconduct or a violation of law, but the request must be based on a reasonable belief that the access will result in relevant information. The restrictions do not apply to electronic devices issued by an employer as there would be no privacy claim by an employee to such employer conduct.
Inspection of Personnel Records
Labor Code Section 1198.5 provides that employees have the right to request to inspect their personnel files and records. The Labor Code has now been amended with the following significant changes regarding the inspection of personnel files (AB 2674):
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Employers are required to maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment. (This conforms to what is required in Labor Code Section 226, which requires the retention of the itemized wage statement for three years) (This office recommends maintaining all personnel files for a four year period of time as the statute of limitation on filing certain claims is 4 years).
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Both current and former employees have a right to inspect their personnel files.
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An employer must make the contents of the personnel records available to a current or former employee (or an authorized representative) at reasonable intervals and at reasonable times but no later than 30 calendar days from the date the employer receives a written request.
Written Commission Agreements Now Required
As we reported previously, Labor Code Section 2751, passed last year, established a new requirement that whenever the contemplated method of paying an employee involves commissions, there must be a written contract that sets forth the method by which the commissions will be computed and paid (AB 1396).
Employee must be provided with a signed copy of the written commission contract and should obtain a signed receipt for the contract from the employees. If the contract expires but the employee continues to work under its terms, the terms will be presumed to remain in full force and effect until the contract is superseded by a new contract between the parties or either party terminates the employment relationship.
Now, this provision of the Labor Code has been amended to clarify which types of “wage payments” are not going to be considered a “commission” and therefore DO NOT have to be put into a written agreement (AB 2675).
Currently, the definition of “commissions” for purposes of this law, excludes:
- Short-term productivity bonuses;
- Bonus and profit-sharing plans, unless there is an offer by the employer to pay a fixed percentage of sales or profits as compensation for work;
- Temporary, variable incentive payments that increase, but do not decrease, under the written contract.
Sex Discrimination and Breast-Feeding
California law currently provides protection to pregnant female employees under the protected classification of “sex”. California law also provides that an employer must reasonably accommodate an employee for purposes of lactation. Now, under the Fair Employment and Housing Act (FEHA) the definition of”sex” has been amended to specifically include “breast-feeding” and “medical conditions related to breast-feeding” as protected classifications (AB 2386 ).
Under the law, a reasonable accommodation would be to provide:
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A reasonable amount of break time for employees to express breast milk, and
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The use of a private place to express breast milk, other than a toilet stall, in close proximity to the employee’s work area. The employee’s normal work area can be used if it allows the employee to express milk in private.
Employees can be required to use their paid rest break time for lactation purposes. If the employee needs a reasonable amount of additional time beyond the normal paid rest break, the time must be provided unless such would be seriously disruptive to operations. This additional time can be unpaid.
Employees may use their meal break time for lactation purposes, but this does not relieve an employer of the additional obligation to provide reasonable rest break time as explained above.
The Labor Commissioner may issue a citation if the Labor Code is violated, subjecting the employer to a civil penalty of $100 for each violation.
Religion, Religious Attire, Grooming and Reasonable Accommodation
FEHA provides protection to employees within certain “protected classifications” (such as religion) from discrimination in the workplace. FEHA also requires an employer to provide employees reasonable accommodation.
FEHA has been amended to clarify that religious dress practices and religious grooming practices are also protected activities. (AB 1964 amends Government Code Sections 12926 and 12940)
The following changes have been made to the Code:
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“Religious dress practice” is to be interpreted broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of the observance by an individual of his or her religious creed.
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“Religious grooming practice” is also to be interpreted broadly and includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed.
The law provides that segregation of the individual from customers, other employees or the public based on religious dress or grooming standards (e.g., head coverings, facial hair, or jewelry) is not a reasonable accommodation. Employers should monitor their dress code policies and their employee’s attire so that there is no potential claim of discrimination.
Minimum Pay Requirements Updated for Exempt Computer Software Employees , Physicians and Surgeons
Under the California Labor Code, to be classified as “exempt” and not subject to the overtime pay requirements, there is a base-line salary that must be paid. For most “exempt” employees it is $33,280 annually. Other provisions in the Labor Code (Sections 515.5 and 515.6) provide that certain computer software employees, licensed physicians and surgeons are exempt from state overtime requirements if they receive a minimum hourly, monthly, or yearly rate.
The California Division of Labor Standards Enforcement (DLSE) adjusted the rates these individuals must be paid to be considered overtime-exempt as follows:
Computer Software
Computer professionals must be paid at least $39.90 per hour (a increase of $1.01 in the hourly rate from $38.89). The monthly rate increases $175.56, from $6,752.19 to $6,927.75 per month. Finally, the annual salary increases $2,106.68, from $81,026.25 to $83,132.93 per year.
Licensed Physicians or Surgeons
Licensed Physicians and Surgeons must be paid at least $72.70 per hour to be considered exempt which is an increase of $1.84 per hour from $70.86.