Range from Wage & Hour to Social Media Privacy
2013 ushered in numerous employment laws that will significantly affect California employers, with topics ranging from wage and hour to social media privacy. Employers should review their policies, practices, and employee handbooks to ensure compliance with these requirements, which, unless otherwise noted, went into effect January 1, 2013. Click here to read more about the changes.
Wage & Hour
Itemized Statements—Labor Code Section 226 requires employers to furnish employees with itemized wage statements semi-monthly or at the time of each wage payment. Section 226 outlines the categories of information that a wage statement must contain. The new law provides that an employee is deemed to suffer injury if the employer fails to issue compliant wage statements. As a result, employees who receive non-compliant wage statements (or do not receive a wage statement at all) can more easily collect substantial penalties from employers.
Itemized Statements—Labor Code Section 226 is further amended to define what an “injury” is for purposes of violating the itemized wage statement statute. It also clarifies that an itemized wage statement “copy,” which employers are required to keep on file for at least three years, can include a computer-generated record instead of an actual duplicate copy. Additionally, temporary services employers must include in the mandatory Wage Theft Notice provided to new employees the name, physical address of the main office, mailing address (if different from physical address) and phone number of the legal entity for which the employee will work. Also, beginning July 1, 2013, temporary services employers are required to include the rate of pay and total hours worked for each temporary services assignment.
Compensation Agreements—Labor Code Section 515 is amended to specify that payment of a fixed salary to a nonexempt employee provides compensation only for the employee’s “regular, non-overtime hours,” notwithstanding any “explicit mutual wage agreement” or other private agreement to the contrary.
Employment Contract Requirements—Labor Code Section 2751 is amended with regard to employment contract requirements for employees paid on a commission basis. The new law mandates that employment contracts involving commissions as a method of payment must:
- Be in writing;
- Set forth how commissions are required to be computed and paid;
- Contain a signed receipt for the contract from each employee.
Labor Code Section 2751 further clarifies that the following types of payments are not considered commissions for purposes of this requirement, including:
- Short-term productivity bonuses such as those paid to retail clerks.
- Temporary, variable incentive payments that increase, but do not decrease, payment under a written contract.
- Bonus and profit-sharing plans, unless there has been an offer by the employer to pay a fixed percentage of sales or profits as compensation for work to be performed.
Equal Employment Opportunity Compliance
Religious Discrimination—The California Fair Employment and Housing Act (FEHA) requires employers to reasonably accommodate the religious belief or observance of an individual unless the accommodation would be an undue hardship on the conduct of the business of the employer. The new law requires employers to provide a reasonable accommodation of an individual’s “religious dress practice” or “religious grooming practice” absent undue hardship. The bill specifically states that the terms “religious dress” and “grooming practices” should be broadly construed.
Breastfeeding—Under FEHA it is unlawful to engage in specified discriminatory practices in employment or housing accommodations on the basis of sex. The new law provides that, for purposes of the act, the term “sex” also includes breastfeeding or medical conditions related to breastfeeding. The new law insulates lactating employees as a protected class that cannot be harassed, retaliated against, or discriminated against.
Right to Inspect Personnel Records—Labor Code Section 226 is revised to permit former employees (or their authorized representatives) to inspect and receive copies of their personnel records within 30 days of submitting a records request, provided they pay the actual cost of copying. Employers must develop, and provide upon request, a written form employees may use to request access to, and a copy of, records in their personnel file. An employer is required to keep the personnel file records for a period of three years following the termination of an employee’s employment. In the event an employer violates these provisions, a current or former employee, or the Labor Commissioner, may recover a penalty of $750 from the employer. In addition, a current or former employee may obtain injunctive relief and attorneys’ fees necessary in asserting these rights.
Social Media Privacy
Employer Use of Social Media—California’s new social media privacy law prohibits an employer from requiring or requesting an employee or job applicant to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. The new law 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 request or demand by the employer that violates these provisions.