Employment Law Advisory for April 26, 2012: Update on Implementation of NLRB Posting Law and New California Payroll Notice Law

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In recent Advisories, we have reported on the National Labor Relations Board’s planned adoption of a new posting rule and California’s new Wage Theft Protection Act. New developments have arisen with respect to each law in the last two weeks, so we want to update our clients and friends on the current status of each issue.

Court Enjoins Adoption of NLRB Posting Rule Pending Resolution of Appeal

As described in previous Advisories, the National Labor Relations Board has proposed adopting a rule that would require most private employers to post a notice informing employees of their rights under the NLRA, including the right to form and join unions. The proposed rule was originally scheduled to become effective late last year, but several lawsuits challenging the proposed rule were filed, resulting in a postponement of its effective date to April 30, 2012. One of the lawsuits is now pending in the United States Court of Appeals for the District of Columbia, and the court issued an injunction on April 17, 2012 that bars implementation of the rule until the appeal is fully resolved. As a result, the posting rule will not become effective on April 30, 2012 and its status will be determined when the appellate court issues its final opinion in the coming months.

Department of Industrial Relations Revises Template for Wage Theft Protection Act Notice

In January, we reported on California’s new Wage Theft Protection Act, which became effective on January 1, 2012. As we explained, the new law requires most employers to provide a written notice to nonexempt employees at the time of hire and when the terms and conditions of employment change. The notice must consist of a single document that includes all of the following information:

  • rate or rates of pay, including any rates for overtime;
  • any allowances claimed as part of minimum wage (e.g., meals or lodging);
  • the regular payday designated by the employer;
  • the name of the employer, including any “doing business as” names used by the employer;
  • the physical address of the employer’s main office, or the principal place of business and a mailing address, if different;
  • the telephone number of the employer; and
  • the name address and telephone number of the employer’s workers compensation carrier. 

Late last year, the Division of Labor Standards Enforcement published its own model template that employers can utilize to comply with the law. The DLSE’s template contained several elements that were problematic and prompted numerous complaints from employers, however. 

In response to comments and complaints from employers, the DLSE has now issued a revised version of the model template and has modified its responses to some of the Frequently Asked Questions (FAQs) on its website relating to the required notice. Among other things, the revisions to the model notice and the FAQs clarify that an employer’s acknowledgement of a written agreement confirming an employee’s rate of pay will not transform an employment relationship that was terminable at will to one that is terminable only for cause (see FAQ 21) and that employers who provided the former model notice to newly hired employees need not issue the new notice to them unless information stated in the former notice has changed (See FAQ 27). The DLSE’s new model template is available at the DLSE website, www.dir.ca.gov/dlse. Employers remain able to utilize the model template or another template of their own creation, provided that the document they use complies with the law in all respects. 

If you have questions regarding the NLRB posting rule, the Wage Theft Protection Act, or any other issue related to employment law, please contact one of our attorneys:

Daniel F. Pyne III
Richard M. Noack
Ernest M. Malaspina
Karen Reinhold
Erik P. Khoobyarian
Shirley Jackson