[authors: Esra A. Hudson and Joanna H. Sattler]
On September 30, 2012, Governor Jerry Brown signed into law several bills applicable to California employers that were passed by the Legislature during its 2011-2012 regular session. We are providing this brief summary to help employers understand the impact of these new laws, all of which will take effect on January 1, 2013, unless otherwise noted.
Social Media Access
AB 1844 prohibits employers from requiring, or even requesting, that an employee disclose her username or password for any "social media." The new law broadly defines "social media" as videos, photographs, blogs, instant messages, text messages, email, websites or online accounts, and any other web-based profiles. It also prohibits employers from requesting or requiring an employee to access such social media in front of the employer or to divulge any personal social media. There are two exceptions: (1) the employer may require the employee to disclose her password or username if it is relevant to an investigation of employee misconduct or violation of a law or regulation, and (2) the law does not prohibit the employer from requiring the employee to divulge usernames, passwords, or other information needed to access an electronic device provided by the employer.
Accommodation of Religious Dress and Grooming Practices
The Fair Employment and Housing Act ("FEHA") already requires employers to accommodate employees' expression of religious beliefs and religious practices, provided that doing so does not cause the employer undue hardship. AB 1964 expands this obligation to require employers to accommodate employees' "religious dress and grooming practices." The amendment states that "religious dress practice" should be "broadly construed," and defines it 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 her religious creed. "Religious grooming practices" include all forms of head, facial ,and body hair that are part of the observance by the employee of his religious creed.
The FEHA prohibits employers from discriminating on the basis of "sex," among other things. Prior to the passage of AB 2386, "sex" was defined under the Act as including gender, pregnancy, childbirth, and medical conditions relating to pregnancy or childbirth. AB 2386 expands the definition of "sex" to include breastfeeding and medical conditions relating to breastfeeding.
Employee Records Inspection
AB 2674 adds recordkeeping and copying requirements, as well as specific timelines for compliance with employee requests and penalty provisions, to California's existing provisions on employee inspection of personnel records. Specifically, the new law requires employers to:
maintain employee personnel records for a minimum of three years after the employee's separation;
make personnel records available for inspection within 30 days of a request from the employee or his representative, or within a maximum of 35 days if there is an agreement to an extension (previously the employer needed only to respond within "a reasonable period of time");
provide a copy of the personnel records at a charge not to exceed the cost of copying.
Employers may redact the names of any nonsupervisory employees before making the records available. Additionally, employers need only comply with one request per year to inspect or copy a former employee's records, and are not required to comply with more than 50 requests filed by employee representatives in a single month. Finally, the right to inspect and copy ceases if a lawsuit is pending.
Under the new law, employers will face a penalty of $750, to be recovered by the Labor Commissioner, for violations. Employees also may recover injunctive relief and attorneys' fees. Impossibility of performance is an affirmative defense to an alleged violation of the new law.
Elimination of the Fair Employment and Housing Commission
Passed in response to California's budget crisis, SB 1038 eliminates the Fair Employment and Housing Commission, the quasi-judicial administrative agency that previously enforced the FEHA. The new law puts an end to administrative adjudication of FEHA claims, replacing the Fair Employment and Housing Commission with a Fair Employment and Housing Council within the Department of Fair Employment and Housing ("DFEH"). The new Council will have seven Governor-appointed members, who will promulgate rules and hold public hearings.
The DFEH may now enforce the FEHA directly in court, although the DFEH will require all parties to undergo free dispute resolution through its Dispute Resolution Division prior to initiating any civil litigation. Courts may award reasonable attorneys' fees and costs to the DFEH under the new law.
Enhanced Protection for Whistleblowers
The California False Claims Act ("CFCA") protects employees who oppose or report false claims made by their employers in connection with goods or services provided to state or local governments. AB 2492 makes a number of changes to the CFCA designed to conform to the federal False Claims Act. Specifically, it expands the definition of a false claim, amends the statute of limitations, permits recovery of attorneys' fees in more cases, and adds contractors and agents to the list of individuals who may pursue such claims, all consistent with the federal statute. The new law also increases civil penalties by 10 percent, such that penalties for a single false claim now range from $5,500 to $11,000.
Employers are encouraged to review their employment policies and procedures to ensure that they are up to date in light of this new legislation. It is advisable to consult with counsel to make certain that any policy or procedural changes are consistent with the new laws.