The California Legislature has passed and Governor Brown has signed the following significant employment laws that will become effective on January 1, 2013:
AB 2674 (Swanson) - This law amends Labor Code §§ 226 and 1198.5 to require employers to provide employees with a copy of their personnel records and provides that an employer may provide a duplicate or a computer-generated record in response to a request for a copy of an employee’s itemized wage statements.
Wage Statements - Current law requires employers to keep a copy of itemized wage statements for three years. AB 2674 amends Labor Code § 226 to provide that a copy includes a duplicate of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information required to be included in the wage statement.
Under current law, an employee suffering injury resulting from an employer’s knowing and intentional failure to provide accurate wage statements is entitled to recover the greater of actual damages or fifty dollars ($50) for the initial pay period in which a violation occurs and one hundred dollars ($100) per employee for each violation in a subsequent pay period, not exceeding an aggregate penalty of four thousand dollars ($4,00) and is entitled to an award of costs and reasonable attorney’s fees. AB2674 amends Labor Code § 226 to state that an employee is deemed to suffer injury if the employer fails to provide a wage statement. In addition, an employee is deemed to suffer injury if the employer fails to provide accurate and complete information required in the wage statement and the employee cannot promptly and easily determine:
1) the amount of the gross or net wages paid to the employee during the pay period;
2) the total hours worked by a non-exempt employee;
3) the number of piece-rate units earned if the employee is paid on a piece rate basis;
4) all deductions;
5) the inclusive dates of the period for which the employee is paid;
6) all applicable hourly rates in effect during the pay period and the corresponding number of hours worked at each hourly rate;
7) which deductions the employer made from gross wages to determine the net wages paid to an employee during the period;
8) the name and address of the employer; or
9) the name of the employee and only the last four digits of a social security number or an employee identification number.
Personnel records: Under Labor Code § 1198.5, every employee has the right to inspect his or personnel records that employer maintains relating to the employee’s performance or to any grievance concerning the employee. AB2674 amends Labor Code § 1198.5 to provide that both current and former employees have a right to inspect and copy these records. AB 2674 further amends Labor Code § 1198.5 to provide that the employer is provided to make the personnel records available for inspection by the current or former employee or his or her representative or provide a copy of the documents within 30 calendar days from the date the employer receives a written request, unless the employer and the employee, former employee or his or her representative agree in writing to an extension of time, not to exceed 35 calendar days from the receipt of the request to inspect or receive a copy of the documents. The employer may charge a cost to provide a copy of the documents, not to exceed the actual cost of production of the documents.
AB 2674 amends Labor Code § 1198.5 to require employers to maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment. AB 2674 also amends Labor Code § 1198.5 to provide procedures for inspection of documents. In addition, AB 2674 amends Labor Code § 1198.5 to provide that an employer is required to comply with one request per year by a former employee to inspect or receive a copy of his or her personnel records. AB 2674 also amends Labor Code § 1198.5 to provide that the employer may take reasonable steps to verify the identity of a current or former employee or his or her authorized representative and may designate the person to whom the personnel records request must be made. Further, AB 2674 amends Labor Code § 1198.5 to provide that prior to making the personnel records available for inspection or copying, the employer may redact the name of any nonsupervisory employee from the records.
AB 2674 also amends Labor Code § 1198.5 by providing that if an employer fails to permit a current or former employee or his representative the right to inspect or copy personnel records, the current or former employee or the Labor Commissioner may recover a penalty of seven hundred fifty dollars ($750) for the employee. The employee may also bring an action for injunctive relief and may recover costs and reasonable attorney’s fees in such an action.
AB 2674 also amends Labor Code § 1198.5 to provide that if an employee or former employee files a lawsuit that relates to a personnel matter against his or her employer or former employer, the right of the employee, former employee, or his or her representative to inspect or copy personnel records under this ceases during the pendency of the lawsuit in the court with original jurisdiction. AB 2674 also amends Labor Code § 1198.5 to provide that an employer is not required to comply with more than 50 requests for inspection or copying of personnel records filed by a representative of employees in one calendar month.
AB 2675 (Swanson) - Employment contract requirements – commissions. Pursuant to Labor Code § 2751, whenever an employer enters into a contract of employment with an employee for services to be rendered within California and the contemplated method of payment of the employee involves commissions, the contract must be in writing and set forth the method by which the commissions are to be computed and paid. AB 2675 amends Labor Code § 2751 to exempt from this requirement temporary, variable incentive payments that increase, but do not decrease, payment under the written contract.
AB 2389 (Allen) - Employment and housing discrimination: sex: breastfeeding. Pursuant to Government Code § 12940, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations because of sex. Pursuant to Government Code § 12926, under existing law, “sex” is defined for the purposes of the act to include, gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. AB 2389 amends Government Code § 12926 to provide that for the purposes of the act, the term “sex” also includes breastfeeding or medical conditions related to breastfeeding. AB 2389 also amends Government Code § 12926 to state the changes made by AB 2389 are declaratory of existing law.
AB 1844 (Campos) - Employer use of social media. AB 1844 creates a new law codified at Labor Code § 980 that prohibits an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or divulge any personal social media. The law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or a demand by the employer to provide the employer with access to personal social media.
Labor Code § 980 provides that it does not affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
Labor Code § 980 also provides that it does not preclude an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
AB 1964 (Yamada) – Discrimination in employment: reasonable accommodations. Under existing law, the California Fair Employment and Housing Act (Government Code § 12900 et. seq.) protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. Under current law, an employer or other covered entity is required to provide a reasonable accommodation to the religious belief or observance of an individual unless the accommodation would be an undue hardship on the conduct of the business of the employer or entity. AB 1964 amends Government Code § 12926 to provide that “Religious creed” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. “Religious dress practice” shall be construed broadly to include the 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” shall be construed broadly to include all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed. AB 1964 amends Government Code § 12940 to provide that an accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public. AB 1964 also amends Government Code § 12940 to provide that an accommodation is not required if it would result in a violation of any other law prohibiting discrimination or protecting civil rights.