new ca laws and regulations compliance overview

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California Legisla@ve Update 2013 Employment Law

Changes

Thursday, January 10, 2012

Presented by: Rebecca McDonough, SPHR-CA

Human Resources Account Manager

Simplifying business. Benefiting people.

• Introductions • Discussion • Q&A • Close

AGENDA


AB 1964—Religious dress and grooming prac;ces protected By FEHA

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•  Amends the California Fair Employment and Housing Act (FEHA) •  FEHA prohibits an employer from discriminating against an applicant

or employee based on his or her religious creed, including all aspects of religious belief, observance, or practice.

•  Clarifies the scope of the statute’s protections against religious discrimination.

•  Specifies that these protections extend to: w  “religious dress practices,” which include wearing or carrying

religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the person’s religious observance; and

w  “religious grooming practices,” which include all forms of head, facial, and body hair that are part of the person’s religious observance.


AB 2386—BreasCeeding protected under FEHA

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•  This bill amends the definition of “sex” under the FEHA, Government Code section 12926.

•  Existing law prohibits employment discrimination on the basis of “sex,” which included gender; gender identity and expression; and pregnancy, childbirth, or related medical conditions.

•  Clarifies that for all purposes under the FEHA, “sex” also includes breastfeeding and related medical conditions.

•  Amends existing law and therefore it may be applied retroactively and takes effect immediately.


SB 1255—Remedies for failure to provide accurate itemized wage statements

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•  Amends Labor Code section 226(e) •  Specifies the circumstances when employees may recover penalties for

failure to receive accurate itemized wage statements. •  Employers are generally required to provide employees with accurate wage

statements showing nine specific categories of information, (e.g., gross and net wages earned, deductions, and inclusive pay period dates).

•  If an employee suffers “injury” as a result of an employer’s “knowing and intentional” failure to comply with these requirements, the employee can recover certain penalties for each violation, plus costs and attorney’s fees.

•  An employee is “deemed to suffer injury” in two instances: w  if the employer fails to provide a wage statement; or w  if the employer fails to provide accurate and complete information for any

of the nine items required, and the employee cannot promptly and easily determine the information from the wage statement alone.

•  If an employee establishes a “knowing and intentional” violation of the wage statement requirements, the employee may now be presumptively entitled to collect penalties, even if he/she did not suffer any actual injury.


AB 1744—Hiring no;ce & wage statements for temporary services employers

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•  Amends Labor Code sections 226 and 2810.5, and adds new Labor Code section 226.1.

•  Under the existing Wage Theft Prevention Act of 2011, employers must provide their non-exempt employees a written notice at the time of hiring that contains specified information, such as the rate and basis of the employee’s wages, and the employer’s name, address, and telephone number.

•  Temporary services employers must provide notices that also must include the name, physical and/or mailing address, and telephone number of the legal entity for whom the employee will perform work.

•  Starting July 1, 2013, this bill further provides that temporary services employers must include on itemized wage statements (in addition to the other information required by existing Labor Code section 226(a)), the employee’s rate of pay and total hours worked for each temporary assignment. This requirement does not apply to licensed security services companies.


AB 2103—Over;me for non-‐exempt, full-‐;me salaried employees

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•  Amends Labor Code sec@on 515 -‐ prohibits private agreements that contravene the over@me regular rate calcula@on required for non-‐exempt full-‐@me salaried employees.

•  Under exis@ng Labor Code sec@on 515(d), to calculate over@me wages earned by such employees, the regular hourly rate used must be 1/40th of the employee’s weekly salary.

•  This bill specifies that payment of a fixed salary to a non-‐exempt employee must be deemed compensa@on only for regular, non-‐over@me hours worked, “notwithstanding any private agreement to the contrary.”

•  Intended to overturn Arechiga v. Dolores Press (2011). w  Employer and non-‐exempt employee made an agreement that the employee

would work 11 hours a day, six days a week, and would earn a weekly salary of $880.

w  the salary included base pay for the first 40 hours of work and 26 hours of regularly scheduled over@me at a higher hourly rate.

w  The employee argued this agreement violated the regular rate requirement of Labor Code sec@on 515(d), but the court of appeal enforced the agreement.


AB 1775 -‐ Garnishment Limita;ons

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•  Existing law limits the amount of employee earnings subject to an earnings withholding order to the amount specified by federal law, unless an exception applies.

•  Federal law prohibits the amount of earnings subject to garnishment from exceeding 25% of an individual's weekly "disposable earnings" or the amount by which the individual's disposable earnings for the week exceeds 30 times the federal minimum hourly wage in effect at the time the earnings are payable.

•  The new law, effective July 1, 2013, defines "disposable earnings" as the portion of an individual's earnings that remains after deducting all amounts required to be withheld by law.

•  The bill limits the amount of an individual's weekly disposable earnings subject to garnishment to the lesser of 25% of the individual's weekly disposable earnings or the amount by which the individual's disposable earnings for the week exceeds 40 times the state minimum hourly wage (currently, $8.00 per hour).


AB 1396 -‐ WriTen Commission Contracts

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•  Labor Code section 2751 previously required that out-of-state employers with no permanent fixed place of business in California that use commission contracts for paying employees to put these contracts in writing.

•  Amendment: Jan. 1, 2013, all employers contemplating payment in commissions must:

w  put the contract in writing; w  identify the method by which commissions will be computed and paid; w  give a signed copy of the contract to every employee who is a party to it;

and w  obtain a signed receipt for the contract from each employee.

•  When the contract expires and the parties continue to work under the expired contract’s terms, the contract terms are presumed to remain in full force and effect until the contract is superseded or either party terminates the employment.

•  Definition of commissions - “compensation paid to any person in connection with the sale of the employer’s property or services and based proportionately on the amount or value thereof.”


AB 2675—WriTen contracts for commission pay: the excep;ons

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•  Amends Labor Code section 2751, which requires a written contract of employment for services rendered in the state and paid for by commissions.

•  The current statute excludes two types of compensation: (1)  short-term productivity bonuses such as are paid to retail clerks;

and (2)  bonus and profit-sharing plans, unless the employer offers to pay

a fixed percentage of sales or profits as compensation for work to be performed.

•  This bill adds a third exclusion category for “temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.”

•  Employers should consider providing employees with any form of variable compensation a written document that details the formulas, terms and conditions of the variable compensation plan.


AB 2674—Employees’ right to inspect personnel records; wage statement reten;on

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•  Amends Labor Code section 1198.5, employees right to inspect personnel records

•  Employer must make the employee’s personnel records available for inspection by any current or former employee or his/her representative, and provide a copy of the records, within 30 calendar days from receipt of a written request, or if the parties agree in writing, within no more than 35 calendar days.

•  Employers provide current and former employees with form that can be used to request the inspection.

•  Identifies specific requirements for time, place, and method obligations for inspection and delivery of the records.

•  Employers must keep a copy of the employee’s personnel records for at least three years after termination of employment.

•  If a current or former employee files a lawsuit against the employer regarding a personnel matter, his or her right to inspect or copy personnel records ceases during the pendency of the lawsuit.


AB 2674—Employees’ right to inspect personnel records; wage statement reten;on, con;nued

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An employer may: (1)  designate the person to whom records requests are made, (2)  take reasonable steps to verify the identity of the employee or representative

making the request, and (3)  redact the names of nonsupervisory employees contained in the records. •  If an employer fails to permit inspection or copying of records within the times

required, the employee or Labor Commissioner may recover a $750 penalty and the employee also may obtain injunctive relief, costs, and attorney fees.

•  Existing law requires employers to keep copies of wage statements for at least three years, either at the employment site or a central location within the state.

•  Clarifies that “copies” may include duplicates of the statements provided to the employee, or computer-generated records that accurately show all information required to be included on the wage statement.


AB 1844—E-‐mail and social media passwords

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Prohibits an employer from requiring or requesting an employee or applicant to: 1.  disclose a username or password for the purpose of accessing personal

social media; 2.  access personal social media in the presence of the employer, or 3.  otherwise “divulge” any personal social media to the employer. 4.  The bill also prohibits an employer from discharging, disciplining, threatening

to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a prohibited request.

2 exceptions: 1.  can require disclosure of usernames and passwords if relevant to an

investigation of employee misconduct or employee violations of laws or regulations.

2.  the bill does not preclude employers from requiring an employee to disclose a username or password for the purpose of accessing an employer-issued device.

Social Media Definition: videos, photographs, blogs, instance messages, text

messages, email, websites or online accounts, and other web-based profiles.”


A.B. 2492: Expanded Protec;ons for Whistleblowers

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•  Amends various provisions of California’s False Claim Act (“CFCA”) to conform to the federal False Claim Act.

•  The CFCA provides protection and financial incentives for employees who oppose or report fraudulent claims made by their employers in connection with work performed for the state and its political subdivisions.

•  The CFCA amendments include:

w  expands whistleblower protections to include contractors and agents who pursue false claims actions;

w  expands the definition of a false claim; w  amends the statute of limitations; w  authorizes courts to award attorneys’ fees in more cases; w  increases civil penalties by 10%, now ranging from $5,500 to

$11,000 per false claim.


S.B. 863: Reform of Workers’ Compensa;on System

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•  Reforms the Workers’ Compensation system changing: w  medical provider networks; w  independent medical and bill reviews; w  lien reform; w  fee schedules; w  medical care reforms; w  permanent disability claims; w  return to work rules; w  eliminate permanent disability claims related to sleep disorders, sexual

dysfunction, and psychological “add-ons”; and w  adopts an independent medical review system in which independent medical

experts will issue final, binding decisions in coverage disputes, which can only be appealed on limited grounds, such as fraud, conflict of interest, discrimination, or clear mistakes of fact that do not involve medical expertise.


S.B. 1038: Eliminates Fair Employment & Housing Commission

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•  S.B. 1038 eliminates the Fair Employment and Housing Commission, the administrative adjudicatory agency created under the FEHA.

•  The Commission was the California agency that developed regulations and acted as the judicial body that heard claims of discrimination brought before the agency, instead of court.

•  Those duties will now be handled internally by the Fair Employment and Housing Counsel

•  The law establishes a Fair Employment and Housing Council, comprised of

7 members within the Department of Fair Employment and Housing (“DFEH”). •  The Council’s members are appointed by the governor, will conduct public

hearings, and will take regulatory action when necessary. •  The law allows the DFEH to file cases directly in court. •  Before filing any civil action in the courts, the DFEH will require all parties to

undergo free dispute resolution through its in-house Dispute Resolution Division. The law also authorizes the courts to award reasonable attorney’s fees and costs to the DFEH.


Civil Code s. 52.6 – No;ce Regarding Slavery and Human Trafficking

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•  Effective January 1, 2013, the law requires the following businesses and other establishments to conspicuously post a notice guiding the public to report suspected slavery and human trafficking: w  Restaurants w  Urgent care and emergency room facilities w  Privately operated job recruitment centers w  Commercial airports, rail stations, bus stations and truck stops w  “Adult or sexually oriented businesses” w  Businesses offering “massage or bodywork services” from uncertified

message therapists w  Farm labor contractors

•  The notice must be in English, Spanish and at least one other language that is “the most widely spoken” in the county where the establishment is located.

•  The California Department of Justice will develop and make a model notice available online by April 1, 2013.

•  The state is authorized to fine any business or other establishment that remains in non-compliance 30 days after a written warning ($500 first offense, $1,000 each subsequent offense).


Slavery and Human Trafficking No;ce Requirements

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The notice must be at least 8.5” x 11” with 16-point font and state:

If you or someone you know is being forced to engage in any activity and cannot leave—whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity—call:

w  the National Human Trafficking Resource Center at 1-888-373-7888 or w  the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373

to access help and services.

Victims of slavery and human trafficking are protected under United States and California law.

The hotlines are: w  Available 24 hours a day, 7 days a week w  Toll-free w  Operated by nonprofit, nongovernmental organizations w  Anonymous and confidential w  Accessible in more than 160 languages w  Able to provide help, referral to services, training, and general information


Other Noteworthy Changes



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SB 1140 - Provides that marriage is a personal relation arising out of a civil, and not religious, contract.

SB 1177 – When an employer is convicted of a crime against an employee, any payment to the employee or the employee's dependent that is made by the employer's workers' compensation insurance carrier may NOT being used to offset the restitution owed unless the court finds that the defendant substantially met the obligation to pay premiums for that insurance coverage.

SB 1186 - Reduces statutory damages and litigation protections for defendants who

correct physical access violations to buildings by disabled persons and provides other limitations for damages.

AB 2188 – Provides that second/subsequent convictions for texting while driving are

a serious traffic violation, and disqualifies a driver from operating a commercial motor vehicle for a specified time period.

AB 1536 – Permits drivers to verbally dictate, send or listen to text-based messages

while driving only if using voice-activated, hands-free devices.


Other Noteworthy Changes, con;nued

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2013 Meals & Lodging Cash Values For calendar year 2013, the cash value of meals and lodging for tax purposes: 3

meals per day: $10.90 (breakfast: $2.35; lunch: $3.30; dinner: $5.20—Note that these amounts add up to $10.85, not $10.90); a meal not identifiable as either breakfast, lunch or dinner: $3.80.

2013 Minimum Pay Requirements for Exempt Employees Computer Professionals: a $1.01 increase in the hourly rate from $38.89 to $39.90

per hour. Licensed Physicians and Surgeons: $1.84 increase in the hourly rate from $70.86 to

$72.70 per hour.


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