New HR Laws for 2013 – Part I of II: New California Laws

» Posted in News & Resources

As always, the new year means new laws and regulations kick into gear, and that impacts your business. If you are a business based in California or have employees working here in the Golden State, then you need to keep up to date with the many new employment laws effective January 1. California – known for its extreme pro-employee bias – has a host of new laws, more than one blog can tackle. But the following list, although by no means an exhaustive list, does address some of the more significant ones that are most likely to impact your employee practices.

Employees Paid Commissions Must Have a Written Contract
Employers with any commissioned sales personnel in California (regardless of where the company is based) must enter into a written contract with each such employee that describes the method by which commissions are computed and paid. The employer must also provide a copy of the signed contract to the employee and obtain a signed receipt from each employee. See our previous blog here on more information about the new commission law and tips for drafting a commission contract.

 Accommodation of Religious Dress and Grooming Now Expressly Protected
Existing laws protecting against discrimination on the basis of religion have been expanded specifically to provide that employers (with five or more employees) cannot discriminate against, and must accommodate, the “religious dress practice” and “religious grooming practice” of employees and applicants. Under the new law, “religious dress practice” includes the wearing or carrying of religious clothing, head or face coverings, jewelry and artifacts. “Religious grooming practice” includes all forms of head, facial, and body hair that are part of an employee’s or job applicant’s observance of his/her religion. Employers must (reasonably) accommodate such dress and grooming, unless such accommodation creates an undue hardship.

New Pregnancy Regulations Approved
The California Office of Administrative Law issued new Pregnancy Disability Leave regulations late in the year that will impact every employer in California with five or more employees. These regulations expand existing law in several significant ways. For example, the definition of “disabled by pregnancy” has been broadened to include several specific conditions such as severe morning sickness, bed rest and other common conditions. The definition of “reinstatement” has been clarified so that a woman must be returned to a position “virtually identical” to the position she held prior to any leave. There is a new notice provision employers are required to post and a new medical certification form that employers may use. These new regulations are extremely complex and businesses are encouraged to have their HR personnel study these in detail and amend policies, posters and forms accordingly.

Salaries For Nonexempt Employees Cannot Include Overtime
Employers may no longer pay their nonexempt (that is, entitled to overtime) employees a fixed salary which includes all overtime hours worked. For example, a written agreement that states the employee will be paid “x many dollars per week for all hours worked up to 50 hours a week” is now invalid. Under the new provision, fixed salaries paid to nonexempt employees are deemed to cover just the regular, non-overtime hours worked, up to eight in the day and 40 in the week. The employer is required to pay overtime regardless of any agreement stating otherwise.

Access to Personnel Records
This new law significantly expands the obligation of employers to permit inspection of personnel records in a number of ways: 1) rights under this law apply to former employees as well as current employees; 2) employees have the right to receive a copy of personnel records in addition to the right to inspect them; 3) employee representatives are now permitted to make the request on behalf of employees (unless there is an existing lawsuit); 4) the employer must fulfill the request for access and copying within 30 days (with some exceptions); and 5) the employer must retain employee records for at least three years after termination. Also, employers must create a form that current and former employees can use to request inspection or copying of their files.

Applicants’ and Employees’ Social Media Information Protected
Social media (Facebook, Twitter, Instagram, etc.) is all the rage and is no longer limited to just socializing: its use by, and impact on, businesses is well documented. This new law prohibits employers from requiring – or even requesting – that employees or applicants disclose usernames or passwords for purposes of accessing personal social media.  Moreover, “social media” is broadly defined to include electronic content containing videos, still photographs, blogs, podcasts, text messages, email, or internet website profiles. However, employers may still require current employees to reveal passwords or usernames if necessary to access an employer-provided electronic device, or if relevant to investigate misconduct and/or legal violations.

Employees’ use of social media has become a thorny issue for employers, and one that this blog will address next month in a two-part series, so check back with us.

The first of the year is a good time to review all of your company’s HR policies, handbooks, notices, forms and contracts. There is a lot to keep up with here in California and staying informed is the best defense to an expensive legal problem down the road. Stay tuned to our blog, as next week Part II will address the new federal employment laws also likely to impact your business.