News, Articles & Updates

2013 Employment Law Updates

Pregnancy Notices and Clarifications:

(1)    Employers are required to post and distribute certain notices to pregnant employees.

(2)    Further, employers are required to notify an employee in writing of any medical certification requirement each time a certification is required and provide employee with a form for the employee’s health care provider to complete.

(3)    Also, the regulations clarify the term “four months” of leave as the number of days the employee would normally work within four calendar months if leave is taken continuously following the date of pregnancy disability. If the leave is intermittent, then there are other methods of calculating the number of days.

Recommendation:  Compliance with medical leave laws is extremely important.  Failure to do so will result in significant penalties and exposure.  Please contact your Mitzel Group, LLP attorney if pregnancy leave (or any medical leave) issues arise in your company so we may devise a strategy to avoid liability.

Commission Pay Agreements (AB 1396):

All in-state and out-of-state employers paying commissions to employees, working in California, must provide employees with written commission agreements which set forth both the formula for calculating commissions, as well as the method of payment.

  • This “contract” can come in the form of a commission plan, offer letter, or other written document that outlines the required information.
  • A copy of the signed agreement must be provided to the employee and a signed receipt for the agreement must be obtained from the employee.
  • If the commission agreement expires and the parties continue to perform without change, the terms of the contract will remain in effect.

Exemptions:  AB 2675 creates three exemptions in the written contractual requirement for employees paid by through commissions. AB 2675 clarifies that commissions do not include:

  • Short-term productivity bonuses, similar to those paid to a retail clerk;
  • Temporary incentives that increase commissions already stated in written contract; and
  • Bonuses and profit-sharing plans, as long as they are not a fixed percentage of sales or profits.

Recommendation:  Please contact us to determine how best to memorialize any commission plans utilized by your company.

Wage Statement Violation Penalties (SB 1255):

Employers are required to provide at least nine categories of specified information to employees on every wage statement, as specified in Labor code §226.  Failure to do so will result in significant penalties.  Please ensure that all wage statements that are sent to employees include the following information:

(1) Gross wages earned; (2) Total hours worked (except for exempt employees, assuming they are properly classified as exempt); (3) Applicable piece rate units and piece rates; (4) All deductions (may be aggregated); (5) Net wages earned; (6) Inclusive pay period; (7) Employee name and last four digits of social security number or employee ID; (8) Name and address of the legal entity serving as employer; AND (9) All applicable hourly rates in effect during the pay period and corresponding number of hours worked.

Recommendation:  Take five minutes to review your wage statements.  If your wage statements do not include all of the above information, contact your payroll company immediately to remedy the error.

Wage Statement & Personnel Record Copies (AB 2674):

Labor Code §226(a) currently requires an employer to keep a “copy” of itemized employee wage statements containing specified information for a minimum of three years.

  • AB 2674 amends the law to provide that the term “copy” means a duplicate of the itemized wage statement or a computer generated record that accurately shows all required information

AB 2674 also amends Cal. Lab. Code §1198.5 to establish “minimum standards” for inspection and receipt of a copy of personnel records.

  • The inspection rights apply to former and current employees.
  • Current employees are permitted to inspect records at their place of work and former employees may inspect at the location where records are stored.
  • Employers have 30 days to comply with a written request.

Recommendation:  Be sure that your wage records are saved in the proper format for a minimum of three year and personnel files should also be preserved for at least one year after an employee separates from the company.   If you receive a request for an employees pay records or personnel file, know that such requests typically mean a dispute or lawsuit may be coming your way.  Prior to submitting the requested information to the employee or their representative, please contact your Mitzel Group, LLP attorney ASAP so we may assist you in responding to the request and, hopefully, avoid litigation.

Employee Social Media Privacy (AB 1844):

AB 1844 prohibits employers from requesting that current employees or applicants to disclose user names or passwords related to their social media account or to access personal “social media” in front of employer.  It also prevents an employer from asking the current employee or applicant to divulge any information regarding their “social media” to employers.

  • Social media includes text messages, emails, blogs, photo accounts and social media accounts on Facebook and Twitter.
  • The law does not prohibit an employer from inquiring into an employee’s use of social media in the context of an investigation into “employee misconduct or employee violation of applicable laws and regulations.”
  • This law appears to suggest that the employer can still access employer-owned equipment and accounts but tread lightly.

Discrimination Protection Now Covers Breastfeeding (AB 2386):

AB 2386 expands the Fair Employment and Housing Act’s definition of “sex” for the purposes of discrimination protections to include:

  • “breastfeeding or medical conditions related to breastfeeding.”
  • It is, therefore, unlawful to discriminate or retaliate against an employee because she breastfeeds or because she has a medical condition associated with breastfeeding.

Recommendation:  Ensure that all breastfeeding employees receive the proper accommodation as required by law.  Should you intend to make an adverse employment decision regarding an employee who recently returned from maternity leave (or any medical leave of absence), please contact your Mitzel Group, LLP attorney so we may discuss how best to achieve your desired result without getting sued.

Commuter Benefits (SB 1339):

Private-sector employers with operations in San Francisco and more than 20 employees anywhere in the country already must comply with a “commuter benefits” ordinance for their SF employees.  SB 1339 will require employers in the greater San Francisco Bay Area with a minimum of 50 employees to offer commuter benefits similar to those required in San Francisco.

Employers may comply by offering:

  • a pre-tax deduction of up to $125 each month to pay for covered commute expenses;
  • a monthly subsidy equivalent to the price of the San Francisco Muni Fast pass; OR
  • a company-funded bus or van between the employee’s home and business location.

Retirement Savings Plans (SB 1234):

Once the Investment Board conducts a feasibility study, The California Secure Choice Retirement Savings Trust Act will require private sector employers with at least 5 employees, who do not already offer a qualifying retirement program, to offer a payroll deposit retirement savings arrangement so eligible employees can contribute a portion of their salary or wages to a retirement savings account in the program.

  • Employees will be required to participate unless they affirmatively opt-out and the EDD will be drafting an opt-out form that is not yet available.
  • Penalties will be assessed for covered employers who fail to make the program available.
  • No updated expected until mid-2013.

UPDATES EFFECTIVE APRIL 2013

Human Trafficking Posting (SB 1193):

Specified businesses are required to post an 8.5”x11” notice that contains information about organizations that provide services to eliminate slavery and human trafficking by April 1, 2013.

  • The Department of Justice will develop and make available a model notice (it is not yet available).
  • The notice to be posted shall be printed in English, Spanish, and in one other language that is the most widely spoken language in the county where the establishment is located.

BAY AREA MINIMUM WAGE INCREASES AND NOTICES

San Francisco Minimum Wage:  San Francisco minimum wage increased to $10.55 per hour on Jan 1, 2013. Employers must post a notice of the current wage.  The most current notice is available at: http://sfgsa.org/modules/showdocument.aspx?documentid=9316

San Jose Minimum Wage:  San Jose minimum wage will be $10 per hour beginning March 11, 2013.  Any employer who maintains a facility in San Jose or has a business license from the City of San Jose is affected by this. Employers must post a notice of the current wage.  The most current notice is available at: http://ca-sanjose.civicplus.com/DocumentCenter/View/11397

UPDATED NOTICES AND FORMS

ALL CALIFORNIA EMPLOYERS:

Department of Labor Standards Enforcement—Notice to Employee

Since January 1, 2012, California requires employers to provide certain notice to newly hired non-exempt employees and also to current non-exempt employees.

ALL SAN FRANCISCO EMPLOYERS:

In addition to the minimum wage poster, above, San Francisco employers must post the following notices in a location conspicuous to employees:

Health Care Security Ordinance Notice: http://sfgsa.org/modules/showdocument.aspx?documentid=9322

San Francisco Paid Sick Leave Notice:

http://sfgsa.org/modules/ShowDocument.aspx?documentid=7401

To purchase all required California notice posters:

The California Chamber of Commerce offers employers an easy option to purchase the required local and state-wide notices.