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Slew Of New Employer Laws Hit The Books In California
By Jorge Alexandria - January 24, 2013

The Earth didn’t shake, the clouds didn’t part and a choir of angels didn’t sing on January 1, 2013 when Senate Bill (SB) 863, the most comprehensive workers compensation reform bill in many, many years, went into effect. Workers’ compensation and employment laws in general are by their very nature the most highly regulated relationships of any business in California (where employee rights are expansive and complying with them critical).   Along with SB 863 employers should pay attention to the following new laws that went into effect January 1, 2013:
 
Wage & Hour- 
SB 1255 requires an employer to furnish wage statements semi-monthly. This obligation applies even if the employee has authorized payment by automatic direct deposit to a bank account. ; Assembly Bill (AB) 1744 amends Labor Code Sections 226 and 2810.5. The bill requires temporary employers/ agencies to include in the itemized wage statements the rate of pay and total number of hours worked for each assignment a temporary employee worked at; AB 2103 amends the Labor Code to state that payment of a fixed salary to a nonexempt employee will be deemed to be payment only for the employee’s regular non-overtime hours, notwithstanding any private agreement or “explicit mutual wage agreement” to the contrary.
 
In other words, a fixed salary to a non-exempt employee may not include any overtime pay to which the employee might be entitled. Still confused? .... An employer may not hire a non-exempt employee based on a fixed salary and later claim that the salary included overtime worked and paid. The overtime rate and pay should be listed separately on the employee’s pay statement. AB 2675- amends the written commission agreement law to exempt certain types of wage payments from the written agreement requirement. Existing law requires that employment contracts contemplate commission payments setting forth in writing the method by which commissions are to be calculated and paid. The new law exempts from this requirement any variable incentive payments that increase but do not decrease, payment under the written contract. AB 2396 prohibits employment of infants of less than a month on a motion picture set unless a board certified pediatric and a surgeon certify that certain health requirements have been met.
 
EEO Compliance- 
AB 1964 clarifies that Fair Employment and Housing Act (FEHA) discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices unless the accommodation would be an undue hardship on the conduct of the business of the employer.  It also specifies that segregating an individual from other employees or the public is not a reasonable accommodation of religious beliefs or observances absent undue hardship. 
 
AB 2386 requires employers to provide reasonable accommodation for breast-feeding mothers. Previous law allowed mothers a reasonable amount of break time to pump breast milk. Now additionally, employers must make a reasonable effort to provide a private place other than a toilet, in close proximity to the employee’s work area, for lactating women. AB 2386 also changes the definition of “sex” under FEHA for purposes of discrimination protections to include breastfeeding and related medical conditions. Thus lactating employees are a protected class and can not be harassed, discriminated against or retaliated against or help you God.

Social Media-
AB 1844 prohibits employers from requiring or requesting employees or job applicants to provide user names or passwords for personal social media accounts and from requesting an employee or job applicant to access a personal social media site in the employer’s presence. There are limited exceptions, including an exception relating to employer investigations.
 
Personnel Records-
AB 2674 amends the Labor Code and now requires an employer to maintain personnel records for up to  three years following an employee’s separation from employment. It also allows current and former employees to inspect and receive copies of their personnel records within 30 days of submitting their request. An employer is not required to comply with more than one request per year by a former employee or with more than 50 requests per month by employees’ representatives (like in a class action scenario).   Previously, employers were not required to provide an employee with copies of his or her personnel file. All they were required to provide were copies of any document that the employee signed relating to his or her employment. Employees still had the right to inspection of their personnel file but had to take notes regarding any document in the personnel file. The new law is an improvement over the old.
 
No doubt that California employment laws have multiplied. In fact each passing year brings in new laws and layers of additional protections for employees. Are they needed?  Absolutely. A few bad apples of employers ruin it for the rest that are already paying their employees a higher living wage, offering them bigger perks, and giving their employees more respect. However, these laws, however well intended, put additional burdens, and frustration, on employers at a time when the economy and job market remain weak.
 
But no matter--ready or not--employers need to saddle up and become proficient in the law and give their employees that million dollar smile and not blow it.
 
Jorge Alexandría is a U.S. Army veteran who received his B.A. in Political Science from Cal State Los Angeles, and graduated from Cal Poly Pomona with a Master’s in Public Administration. He holds both a California Workers Compensation Claims Professional (WCCP) designation and the State of California’s Self-Insured Administrator’s License. With more than 20 years industry experience, including various leadership positions, he is a leading expert in the field of risk management. He currently practices federal workers’ compensation of maritime interest. He can be reached at Riskletter@mail.com. The views and knowledge expressed in this article are Jorge Alexandría’s alone.   
 
 

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