At the start of every new year, it is important for all California employers, no matter their size, to familiarize themselves with some of the changes and new developments in state and federal laws which may affect the workplace. While this summary is not exhaustive of all of the potential labor and employment changes in the past year, it outlines some of the areas of the law that have changed, and provides helpful links to obtain more detailed information.
Employee Handbooks - The Federal Motor Carrier Safety Administration (FMCSA) enacted a new rule banning commercial motor vehicle (CMV) operators from text messaging while driving. Specifically, the rule prohibits texting by CMV drivers while operating in interstate commerce and imposes sanctions, including civil penalties and disqualification from operating CMVs in interstate commerce, for drivers who fail to comply with this rule. For more information, read the entire content of the rule.
If you are a company that employs CMV drivers, you should update your Employee Handbook or provide an Addendum to include this new rule.
Also, this past year Kring & Chung, LLP helped numerous employers formulate new company policies pertaining to the use and restrictions of social media websites, such as Facebook and MySpace, especially when they are used for marketing and advertising purposes.
I-9 Update - Last year, regulations implementing the electronic Form I-9 were approved by the U.S. Department of Homeland Security. The new regulations allow employers to complete, sign and store the Form I-9 electronically, although there is no requirement that employers must keep I-9 information electronically. Whether filled out manually or electronically, an employer representative must still physically examine the required identification and work eligibility documentation. For more information, go to the U.S. Citizenship and Immigration Services (USCIS) website.
Drug Testing in the Workplace - For employers in the transportation industry, the Department of Transportation (DOT) issued a regulation in 2010 requiring employers to use an updated DOT Alcohol Testing Form beginning January 1, 2011. This form must be used for DOT alcohol tests.
Tip Pooling - In August 2010, the California Supreme Court in Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, ruled on a case that restricted employees' ability to sue employers for tip pooling issues.
A dealer sued his employer for its policy of requiring dealers to set aside 15 to 20 percent of the tips received each shift, which were deposited into a "tip pool bank account" and later distributed to designated employees. The policy expressly prohibited managers and supervisors from participating in the pool. The plaintiffs brought a class action against a casino and its general manager, alleging that the casino's tip pooling policy violated the employees' protections under Labor Code § 351, prohibiting employers from taking, collecting or receiving employees' gratuities.
The California Supreme Court held that Labor Code § 351 does not provide a private cause of action to sue in court, reasoning that there were other remedies that may be appropriate, such as a private lawsuit for "conversion." To be clear, California law does not specifically prohibit involuntary tip pooling, so long as the employer and any supervisor are not sharing in the tips.
Unemployment Insurance - Effective January 1, 2011, employers must file returns with the EDD regarding an employee's wages, taxes withheld and other required information quarterly instead of annually. The form is called New Quarterly Contribution Return and Report of Wages (DE 9). This form replaces the Annual Reconciliation Statement (DE 7).
Pregnancy Disability Issues - The federal Patient Protection and Affordable Care Act of 2010 amended the Fair Labor Standards Act to provide reasonable break time for an employee to express breast milk while nursing for up to one year after a child's birth. This rule applies to all California employers with more than 50 employees. Under the federal law, employers with fewer than 50 employees are not subject to this requirement if it would impose an undue hardship. Note however that because federal law does not preempt state law, California employers of all sizes must comply with the state law requirements set forth below.
Specifically, California law requires an employer to "reasonably accommodate" employees who wish to express milk at work. See Labor Code §§ 1030-1033. An employer can require that the nursing employee use the paid rest break time already being provided. If an employee needs more than the allotted 10 minutes, the time must be given. However, any time over 10 minutes may be unpaid. Lastly, the employer must provide a private place for a nursing employee to express milk, other than a toilet stall, that is shielded from view and free from intrusion.
Worker's Compensation: Construction - If you are a roofing contractor, a new law, AB 2305, extends the requirements that contractors with a C-39 roofing classification obtain and maintain worker's compensation insurance, even if they have no employees. This requirement was originally set to expire on January 1, 2011, however it has been extended to January 1, 2013.
Another important update affects licensed or unlicensed contractors who fail to procure worker's compensation coverage for employees. AB 1696 allows the registrar of contractors to issue a stop order, effective immediately, for failure of the contractor to procure worker's compensation insurance. Employees affected by the order must be paid by the contractor for lost time, up to ten days.
Should you have any questions about how some or all of these changes may affect your business, please do not hesitate to contact Allyson Thompson for more information.
Allyson K. Thompson is an associate attorney with Kring & Chung, LLP's Irvine office. She may be reached at (949) 261-7700 or athompson@kringandchung.com.
