[authors: John R. Carrigan, Jr., Karen M. Clemes]
Governor Jerry Brown recently signed into law a number of employment-related bills that may have a significant impact on employers with employees based in California. The most notable, as well as two widely anticipated bills that were not signed into law, are discussed below. Unless otherwise specified, each of these news laws takes effect on January 1, 2013. Employers with employees in California should review their employee handbooks, policies, and practices to ensure compliance with these new requirements.
FEHA's Definition of “Sex” Expanded to Protect Breastfeeding
The California Legislature has taken another step to expand the definition of "sex" under the California Fair Employment and Housing Act (FEHA), which prohibits specified discriminatory practices in employment. Under existing law, “sex" includes gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. AB 2386 expands the definition of "sex" to include breastfeeding and medical conditions relating to breastfeeding.
Religious Accommodation under FEHA Enhanced
Under FEHA, employers must reasonably accommodate religious beliefs and observances of their employees unless the accommodation would create an undue hardship for the employer. AB 1964 clarifies that religious dress and grooming practices are covered "beliefs and observances." In addition, the new law states that FEHA's "significant difficulty or expense" definition of undue hardship, not the narrower federal Title VII standard, applies to the FEHA religious discrimination section. AB 1964 also specifies that segregation, such as assigning an employee to a stock room out of public view, will no longer be an acceptable religious accommodation.
Employee Social Media Privacy Interests Protected
AB 1844, an addition to the California Labor Code, will prohibit employers from requiring or requesting that employees or applicants disclose their user name or password information for any personal social media, or that they "divulge" any personal social media. "Social media" is broadly defined to include any "electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations." A limited exception will allow employers to ask employees to divulge their personal social media for the purpose of an investigation into alleged employee misconduct or violations of law.
Employee Rights To Inspect Personnel Files Clarified
While existing California law already provides employees with the right to inspect their personnel files, the law was previously unsettled on certain specifics of that process. AB 2674 eliminates some of that confusion by amending the Labor Code to specifically require that employers retain personnel files for at least 3 years following termination of employment, and to permit current and former employees (or their representatives) to inspect and receive a copy of their personnel records within 30 days of a request to do so.
The new law also specifies that an employer is not required to comply with more than 50 requests for copies of personnel records by "a representative or representatives of" employee(s) in one calendar month. In addition, the new law requires that employers develop, and provide upon request, a written form employees may use to request access to, and a copy of, records in their personnel file.
Temporary Services Employers Must Provide Extra Detail on Wage Statements
Beyond the extensive wage statement requirements already in place for California employers under the Labor Code, AB 1744 will amend the Code to require that temporary services employers (with the exception of certain security services companies) include additional information on employee wage statements. Specifically, temporary service employers will also have to include the rate of pay for each separate assignment, the name and address of each entity that secured the temporary employee's services, and the total hours worked for each such entity. These new requirements for temporary services employers will not take effect until July 1, 2013.
Governor Brown Vetoes "Unemployed Need Not Apply" Bill
In welcome news for California employers, Governor Brown vetoed AB 1450, which would have attempted to curb discrimination based on unemployment status by prohibiting job advertisements stating that current employment is a requirement for consideration for a job. Governor Brown wrote in his veto message that, "as this measure went through the legislative process it was changed in a way that could lead to unnecessary confusion." According to the office of the bill's author, there are no plans to attempt to override the veto.
Expansion of CFRA Held under Submission
AB 2039, another bill that has received attention due to its proposed significant expansion of the California Family Rights Act (CFRA), is being held under submission in the California Senate so that its fiscal impact may be studied. Under CFRA, an employer with 50 or more employees must permit an eligible employee to take up to 12 weeks of leave in a 12-month period to care for the serious medical condition of a child (under 18 years of age or adult dependent), spouse, or parent. The current definition of “parent” includes stepparents and individuals who act as a parent (“in loco parentis”) to the child.
AB 2039 would expand the circumstances under which CFRA leave may be taken by (1) eliminating current age and dependency requirements for children, thereby permitting an employee to take leave to care for an adult child; (2) expanding the definition of "parent" to include parents-in-law; and (3) permitting an employee to take leave to care for a grandparent, sibling, or grandchild. The bill also clarifies that employees have the same rights to care for a seriously ill domestic partner as they do for a seriously ill spouse. For now, however, the future of AB 2039 remains uncertain.
Ballard Spahr’s Labor and Employment attorneys routinely advise employers across the country on new and updated employment laws and regulations. If you have questions on the California laws, please contact John R. Carrigan, Jr., at 424.204.4338 or firstname.lastname@example.org, Karen M. Clemes at 801.517.6805 or email@example.com, or the member of the Labor and Employment Group with whom you work.