An employer is not required to allow employees to use medical marijuana as a reasonable accommodation under California’s Fair Employment Housing Act (FEHA). – Ross v. Ragingwire Telecommunications, Inc. (http://www.safeaccessnow.org/downloads/Ross_Ruling.pdf)
The U.S. Court of Appeals for the Fourth Circuit said that use of an employer’s email system (and computer) waived the marital privilege: (www.employmentandlaborinsider.com/Blog.1.2.13.US%20v%20Hamilton.pdf)
December 12, 2012: Many new laws protecting employee rights will come into effect starting January 1, 2013. They are as follows:
Employers Cannot Ask Applicants Or Employees For Social Media Passwords – AB 1844. This law created Labor Code section 980, which is effective 1/1/2013. The law prohibits employers from asking employees or applicants for passwords to their social media accounts, accessing their accounts in the presence of the employer, or divulging any personal social media. There are two exceptions to this: (1) if the request is made to a current employee as part of an investigation of allegations of employee misconduct or violation of law, and the request is based upon a reasonable belief that the information is relevant, and (2) to devices issued by the employer.
Commission Agreements Must Be In Writing – AB 1396 and 2675. Beginning 1/1/2013, when an employee is paid commissions, the employer must provide a written contract setting forth the method the commissions will be computed and paid. The written agreement must be signed by both the employer and employee. Commission wages are “compensation paid to any person for services rendered in the sale of such employer’s property or services and based proportionately upon the amount or value thereof.” Commissions do not include (1) short-term productivity bonuses, (2) temporary, variable incentive payment that increase, but do not decrease, payment under the written contract, and (3) 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.
Breastfeeding is added to definition of “sex” under the Fair Employment and Housing Act – AB 2386. The new law clarifies that the definition of sex under the FEHA includes breastfeeding and any medical conditions relating to breastfeeding. This amendment makes breastfeeding and the related medical conditions, a protected activity and therefore employers cannot discriminate or retaliate against employees on this basis under California law. While the amendment is effective 1/1/13, the law states that the amendment simply is a statement of existing law, and therefore employers should treat this amendment as existing law immediately.
New Religious and Dress Standards – AB 1964. The new law clarifies that religious dress and grooming practices are protected under FEHA. The law explains that “religious dress practice” is “shall be construed 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.” The law continues in defining religious grooming as: “Religious grooming practice shall be construed broadly to include 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 also states that it is not a reasonable accommodation it the action requires segregation of the individual from the public or other employees.
Changes in Calculating Employees’ Regular Rate of Pay – AB 2103. The new law revises Labor Code 515(d) to clarify that “payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, non overtime hours, notwithstanding any private agreement to the contrary.” Therefore, overtime must be paid above any non exempt employee’s agreed upon salary.
New Penalties For Violations On Itemized Wages Statements – SB 1255. The new law provides that employees are deemed to have suffered injury for purposes of assessing penalties pursuant to Labor Code 226(a), if the employer fails to provide accurate and complete information. Furthermore, a violation occurs if the employee cannot easily determine from the wage statement alone the amount of the gross or net wages earned, the deductions the employer made from the gross wages to determine the net wages paid, the name and address of the employer or legal entity employing the employee, and the name and only the last 4 digits of the employee.
New Requirements On Retention And Inspection of Itemized Wage Statements and Personnel Files– AB 2674. Under Labor Code 226, employers must keep copies of employees’ itemized pay statements for at least three years, at the site of employment or at a central location within the state of California. The new law, effective 1/1/13, clarifies that the term “copy” means either a duplicate of the statements provided to employees, or a computer generated record that shows all information required under Labor Code 226. In addition, the law sets a new deadline for employers to either provide a copy or permit the employee to inspect the personnel file within 30 days after the employer receives the request. The employer and employee may only agree to extend this time period out to 35 days. The employer may also redact the names of any non-supervisory employees in the file. It is important to note, this requirement does not change the 21 day time period to produce or make available for inspection an employee’s itemized wage statements under Labor Code 226(c).
Itemized Wage Statements And Wage Theft Notices For Temporary Service Employers – AB 1744. This new law requires temporary service employers to provide wage statements that list the rate of pay and total hours worked for each temporary assignment. A “temporary service employer” is defined in Labor Code 201.3(a)(1) as a company that contracts with customers to supply workers to perform services for the customer. This is effective 7/1/2013. Furthermore, the law requires temporary services employer to provide Wage Theft Notices required under 2810.5 and include additional information regarding the name, the physical address of the main office, the mailing address if different from the physical address of the main office, and the telephone number of the legal entity for whom the employee will perform work, and any other information the Labor Commissioner deems material and necessary. This requirement is effective on 1/1/2013.
November 14, 2012: Richey v. Autonation reaffirms an employees unwaivable statutory right to reinstatement under section 12945.2. Avery Richey, a sales manager at Power Toyota of Cerritos, was terminated from his job four weeks before the expiration of his approved medical leave under the Moore-Brown-Roberti Family Rights Act (CFRA) (Gov. Code, §§ 12945.1, 12945.2) because his employer believed Richey was misusing his leave by working part time in a restaurant he owned. The Appellate Court rejected the lower ruling stating that the honest belief or honest suspicion defense is incompatible with employees’ statutory rights to reinstatement. If you believe that you are not being retaliated against or were terminated for taking a leave of absence (FMLA/CFRA), please CONTACT US for a free consultation.
November 7, 2012: As of January 1, 2013, California will have new minimum pay requirements for computer software professionals, physicians, and surgeons. Employers will be required to pay the new amount for employees to continue to be considered to be exempt. Otherwise, the employees will be entitled to overtime compensation, meal and rest periods. If you believe that you are not being compensated for all hours worked, please CONTACT US for a free consultation.
October 22, 2012: A California Court of Appeal ruled that a human resources director who never signed the employer’s arbitration agreement, concealed that fact from her employer, and quit her job before doing so, could not be required to arbitrate her employment claims. Gorlach v. The Sports Club, No. B 233672 (Cal. Ct. App. Oct. 16, 2012). The Court rejected the employer’s equitable estoppel and implied contract theories and affirmed the denial of the employer’s motion to compel arbitration.
October 8, 2012: California legislature enacted A.B. 2103, which has been signed into law by Gov. Jerry Brown on September 30, 2012. The bill adds Section 515(d)(2) which states that “Payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee’s regular, non-overtime hours, notwithstanding any private agreement to the employer.” For the typical non-exempt employee, section 515(d)(2) will mean that any salary will not extend beyond providing compensation for five, eight-hour days per week. The amendments to the Labor Code will take effect January 1, 2013. If you believe that you are not being compensated for all hours worked, please CONTACT US for a free consultation.
October 4, 2012: Gov. Jerry Brown recently signed A.B. 1844 into law. The bill updates California’s Labor Code to significantly limit when employers could ask employees and job applicants for social media passwords and account information. However, the law permit employers to request an employee to divulge personal social media activity reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations. This exception applies so long as the social media is used solely for purposes of that investigation or a related proceeding.
September 21, 2012: On August 29, 2012, California passed AB1875. The Bill adds section 2025.290 to the California Code of Civil Procedure, which limits oral depositions in civil litigation to seven hours or less. However, the new law does not apply to cases brought by employees or applicants arising out of or relating to employment. The new law provides for exceptions where any circumstances or actions unfairly impede or delay the deposition. The law also makes exceptions for expert witness depositions, depositions in complex litigation, and depositions of “persons most qualified.”
September 6, 2012: A California District Court found that some financial advisers are “independent contractors” for purposes of California law. In a recent decision applying California law to a case in which several independent contractors asserted a variety of wage-hour claims based on their alleged status as “employees,” one judge upheld the propriety of the classification with respect to the defendant’s financial advisers. (Taylor v. Waddell & Reed, Inc., 2012 U.S. Dist. LEXIS 117258 (S.D. Cal. Aug. 20, 2012).) The finding is based on a fact intensive inquiry that may not be true for all financial advisers. Therefore, if you believe that you have been misclassified and as a result are owed overtime wages, as well as meal and rest period penalties please CONTACT US for a free consultation.