Top New California Laws for 2013

There have been a significant number of new laws passed and signed into effect for 2013.    Here is an overview of the most important changes that take effect January 1, 2013, unless otherwise noted. Information courtesy of the California Chamber of Commerce.

AB1964 - Religion and reasonable accommodation. The Fair Employment and Housing Act's (FEHA) discrimination protections and reasonable accommodation requirements now cover:

• "Religious dress practice" including "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."
• "Religious grooming practice" including "all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed."

An accommodation is "not reasonable" if the accommodation requires segregation of the individual from other employees or the public.

AB2386 - Sex discrimination and breastfeeding. The definition of the term 'sex' under the FEHA now includes "breastfeeding and medical conditions related to breastfeeding." The FEHA prohibits discrimination based on sex.

AB1844 - Social media and personal passwords. Employers may not request or require employees or job applicants to:

• provide their user names or passwords for personal social media accounts
• access personal social media in the employer's presence
• divulge any personal social media

Additionally, employers may not discipline or discharge employees who refuse to provide this information.

AB1744 - Itemized wage statements. Currently, employers are required to provide specific information to employees on a wage statement each time wages are paid. Any employee who "suffers an injury" because their employer "knowingly or intentionally" fails to comply is entitled to recover damages. An employee suffers an injury if the employer fails to provide a wage statement or fails to provide an accurate and complete wage statement.

Additionally, beginning July 1, 2013, temporary services employers (except licensed security companies) must include the name, physical address of the main office, mailing address (if different from the physical address) of the main office, and the telephone number of the legal entity for whom an employee performs work. In addition, they must include rate of pay and total hours worked for each assignment on each temporary workers' itemized wage statement.

AB2674 - Inspection of personnel records. Employers must maintain a copy of every employee's personnel records for no less than three years after termination of employment. Current AND former employees have a right to inspect their records. The contents, including copies, must be available for inspection by a current employee, former employee or an authorized representative at reasonable intervals and times, but no later than 30 calendar days from a written request. Additionally, the law outlines where and how records must be available, what information can be redacted, and penalties for failure to comply.

AB2675 - Commission agreements. Amends prior requirement to have commission agreements in writing by January 1, 2013, by exempting certain types of wage payments. Currently excludes:

• short-term productivity bonuses
• bonus and profit-sharing plans, unless the employer pays a fixed percentage of sales or profits as compensation

This amendment will now also exempt:

• Temporary, variable incentive payments that increase, but do not decrease payment under the written contract

AB2103 amends section 515 of Labor Code - Fixed salaries and overtime. Specifically overturns the decision in Arechiga v. Dolores Press, in which the court held that a non-exempt employee can agree to a fixed weekly salary that includes payment of both regular hourly wages and overtime. Payment of a fixed salary to a non-exempt employee is deemed payment only for the employee's regular non-overtime hours, regardless of a private agreement or "explicit mutual wage agreement" to the contrary.

AB1755 - Wage garnishment. Effective July 1, 2013, the amount of wages exempt from garnishment increases. A withholding order cannot exceed the lesser of 25% of an employee's weekly disposable earnings or the amount by which the weekly disposable earnings exceeds 40X the current state minimum hourly wage.

SB1193 - Human trafficking posting. On or before April 1, 2013, specified businesses must post an 8 ½ x 11 notice containing information about organizations that provide services to eliminate slavery and human trafficking.

SB1186 - Accessibility. Limits frivolous litigation regarding technical violations concerning disability access. Reduces statutory damage, adds provisions to prevent "stacking" of multiple claims to increase statutory damages, and bans letters making demands for money prior to litigation.

AB1675 - Farm labor contractors. Changes the penalties for failing to license farm labor contractors.

AB1855 - Warehouse workers. Adds warehouse workers to the list of specified contractors - which includes construction, farm labor, garment, janitorial, and security guard - subject to sufficient funds requirements.

Additionally, many statues and regulations are now using the term "intellectual disability" in place of the outdated term "mental retardation."

Workers' Compensation Reform. The legislation offsets increases in permanent disability benefits and potentially lowers system costs for employers by:

• Reducing delays and litigation in the system
• Addressing the lien epidemic
• Shortening the medical-legal process
• Implementing an independent medical review system
• Streamlining the permanent disability schedule

In some instances, employers will need to alter or obtain new notices, postings, and/or employee handbook policies to reflect these changes. For assistance with developing appropriate policies, updating your employee handbook, or other human resources needs, contact JorgensenHR at (661) 600-2070.

Source: California Chamber of Commerce November 2012

Best Practices for Rounding Policies

In the See's Candy Shops, Inc. v. Superior Court case, See's utilized a timekeeping software system to track working hours. It required employees to "punch" in at the beginning and again at the end of their shift. Adjustments to the timecards were made in accordance with the company's two policies:

• Nearest-tenth rounding policy, which rounded up or down to the nearest tenth of an hour (every six minutes beginning with the hour mark), and
• Grace period policy, which allowed an employee with a pre-programmed schedule in the timekeeping system to voluntarily punch in up to 10 minutes prior to his/her scheduled start time and 10 minutes after his/her scheduled end time.

A former employee filed a class action lawsuit against See's challenging these two policies. The court upheld the policies. To protect your company against potential legal risks, be sure your rounding policies are:

• Clearly written and communicated to affected employees
• Fair and neutral and don't unfairly favor the company
• Reviewed by counsel prior to implementation

Additionally, audit your payroll regularly to ensure your rounding policy doesn't result in under-compensation for your employees.

Source:  HRWatchdog November 2012.

Other Regulatory Changes for 2013

Pregnancy disability leave (PDL). California employers with five or more employees must make PDL available to employees. Changes to the regulations include:

• A change to the definition of "four months" and how to calculate it
• An expanded definition of "disabled by pregnancy"
• Clarification of employer responsibilities for reasonable accommodation or transfer as it relates to pregnancy, childbirth or related medical conditions
• Clarification of medical certification and documentation process
• An expansion of protections to "perceived pregnancy"
• Mandatory changes to Notice A (PDL) and Notice B (CFRA)

Exempt classification rates. For 2013, the rates for the computer professional exemption are:

• Minimum hourly rate of pay: $39.90
• Minimum monthly salary: $6,927.75
• Minimum annual salary: $83,132.93

2013 REMINDERS

All-In-One-Poster

Mandatory Sexual Harassment Awareness Training

REMINDER - Don't forget that California employers with 50 or more employees, including temporary employees, contract employees, and employees outside the state, are required to provide supervisors within the state of California with two hours of sexual harassment training every two years.

Alternatively, if your company began training when it was first introduced in 2005, 2013 is a major re-training year and you will need to retrain your staff in 2013 to stay in compliance.

For your sexual harassment awareness training needs please call JorgensenHR at (661) 600-2070.