Hill, Farrer & Burrill LLP

News & Updates

New Employment Laws For 2013 – Are You Ready?

Each New Year brings more than resolutions; for employers, it means complying with a raft of new employment laws. Below is a brief synopsis of some important new laws taking effect on January 1, if not sooner. If you have any questions regarding any of these new laws, or others that may affect your Company, please contact us for advice or assistance.
Personnel Files
Employees have long had the right to inspect their personnel files, and they could obtain copies of certain records they had signed. But California Labor Code Section 1198.5 has been amended to impose new requirements on employers.
Now, any current and former employee not only has the right to inspect but to receive copies of any records, “relating to the employee’s performance or to any grievance concerning the employee.” Certain records, however, are excluded from the law and need not be produced to an employee. Also, employers may redact the names of non-supervisory employees from the records.
With current employees, the records must be made available at the location where the employee works unless another location is otherwise agreed upon. If another location is agreed upon, the employee cannot be made to lose compensation as a result.
For former employees, the records must be available where they are stored unless another location is agreed upon in writing. If a former employee was terminated for violating the law or an employer’s policy against workplace harassment or violence, records can be made available for inspection at a location other than the workplace, assuming it is a reasonable driving distance from the former employee’s residence. As an alternative to providing the file for review, an employer can mail copies of the records to a former employee.
A request to inspect a file or receive copies may be made by the employee’s “representative.” A representative is defined as someone with written authorization from the employee. That means the employee’s attorney, spouse, or conceivably even grandma can, with proper written authorization, inspect and obtain copies of employee records.
Employers must make files available for inspection or provide copies not later than 30 calendar days from the date the employer received a written request. The employer and employee can agree to extend that deadline, but not more than five calendar days. If copies of the records are provided, the copying charge may not exceed the actual cost of reproduction.
If an employer fails to timely comply with a request, the employee or the Labor Commissioner may recover a penalty of $750.00 from the employer. The employee may also bring an action for injunctive relief and may recover cost and reasonable attorney’ s fees.
All employers must maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment. An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her records.
Notably, Section 1198.5 does not apply to employees covered by a valid collecting bargaining agreement, if the agreement expressly provides for the wages, hours of work, and working conditions of employees; a procedure for inspection and copying of personnel records; premium wage rates for all overtime hours worked; and a regular rate of pay of not less than 30 percent more than the state minimum wage.
Social Media
Are your employees using Facebook at work? Are you curious to know what an employee or applicant has been doing online? Although social media sites could be a trove of useful information, employers should be very careful. Social media use by employees can be a tricky minefield for employers for a number of reasons, not the least of which are new protections under California law.
California Labor Code Section 980 prohibits employers from requiring or requesting employees or applicants to disclose a user name or password for the purpose of accessing personal social media. Nor may an employer require or request an employee or applicant to access personal social media in the presence of the employer or divulge any personal social media, unless otherwise allowed by law.
An employer is also prohibited from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request for user name and password information.
Section 980 does permit an employer to request an employee to divulge personal social media “reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations . . . .” However, the social media may only be used for the purposes of that investigation or a related proceeding.
It should be noted that Section 980 does not prevent employers from requiring an employee to disclose user name and password information for employer-issued electronic devices.
Religious Dress And Grooming
As many employers are well aware, the California Fair Employment and Housing Act (“FEHA”) prohibits employers from discriminating against employees on the basis of religion. But the FEHA has been amended to expressly include “religious dress and grooming practices” as protected by law.
“Religious dress practice” is broadly construed and defined to include “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.”
“Religious grooming practice” is likewise broadly construed, and it is defined to include all forms of “head, face, and body hair that are part of the observance by an individual of his or her religious creed.”
In addition to prohibiting discrimination, the FEHA requires employers to reasonably accommodate employee religious beliefs or observances unless such accommodation would impose an “undue hardship.”   But when accommodating such beliefs or observances, an employer may not segregate the employee from customers, the public, or co-workers.
Most employers are well aware that they may not discriminate against or permit employees to be harassed based on sex. But now the definition of what constitutes sex discrimination or harassment has been broadened to include protections for breastfeeding or related medical conditions. Breastfeeding is, therefore, subject to the same level of protection as gender, gender identity, gender expression, and pregnancy, childbirth, or related medical conditions.
Written Commission Agreements
If you pay your employees by commission, you need to know those commission arrangements are subject to important new requirements. California Labor Code Section 2751 states that when employees are paid commissions, there must be a written agreement setting forth the method by which all commissions will be computed and paid.
And don’t stick that agreement in a drawer somewhere and forget about it. Employees are entitled to a signed copy of the agreement, and the employer must obtain a signed receipt for the contract from the employee.
In cases where an employee continues working after a contract expires, the contract is presumed to remain in effect unless it is superseded or the employment relationship is terminated.
Criminal Background Checks
It’s understandable if an employer wants to know about an employee or applicant’s criminal history. You probably don’t want to find out that your new accounting manager was twice convicted of felony larceny, after she empties the corporate bank account and flees the country.
But criminal background checks are subject to a litany of strict requirements. Employers that conduct criminal background checks need to make sure they understand all of those requirements. And there’s a new one to add to the list.    The California Penal Code has been amended to require an employee or applicant to be promptly provided with a copy of any criminal history information where it results in an adverse employment action.
Wage Statements
California Labor Code Section 226 requires employers to furnish employees with itemized wage statements when they are paid. The law also provides for penalties to be paid to employees who have suffered harm as a result of a knowing and intentional failure to provide an itemized wage statement.
In the past, employers had a defense to claims for penalties if it could not be shown that an employee suffered actual harm as a result of not being provided with an itemized wage statement. But now, the law has been amended so that an employee is deemed to have suffered harm if he or she cannot easily figure out the information that is required to be disclosed on a wage statement. Naturally, that makes it much easier for an employee to claim the harm necessary to recover the penalties under the statute.