Employment Law Newsletter: February 2013

by Low, Ball & Lynch

In this edition of our newsletter, we review recently enacted employment statutes and significant amendments to existing employment law. There are new requirements relating to employee personnel files, wage statements and public postings. Amendments have been made to discrimination statutes relating to pregnancy, breastfeeding, and religious dress. Wage and hour statutes regarding commissions and overtime have been enacted. An employer is now prohibited from requiring or requesting an employee’s or applicant’s username or password in order to access social media such as Facebook and Twitter. If you have any questions regarding the new legislation and/or the impact it may have on your business, please feel free to contact our office.


Laura Flynn
415.981.6630 x255


Employees and former employees have always had the right to inspect their personnel files.  These rights have been expanded and clarified by recent legislation.

 • Upon request for review, current and former employees, or their representatives are entitled to inspect and receive a copy of their personnel records.  “Representatives” making the request must be authorized to do so in writing by the current or former employee. (California Labor Code §1198.5(a))
• Personnel records must be made available and a copy provided no later than 30 days from the date the employer receives a written request unless the employee and employer agree to extend the deadline to 35 days. (California Labor Code §1198.5(b))
• All requests to inspect or receive personnel records must now be in writing. (Californa Labor Code §1198.5(b)(2)(A))
• Employers are required to maintain a copy of each employee’s personnel records for no less than three years after termination.
• Access to personnel records is now restricted in certain ways: 1) a former employee may only make one §1198.5 request per year; 2) an employer must only comply with 50 requests per month; and 3) employers may redact the names of any nonsupervisory employees contained in the records prior to inspection or copying.
• The penalty for noncompliance is $750. An employee may also seek injunctive relief and request attorney’s fees and costs in connection with any noncompliance action. (California Labor Code §1198.5(k)(l))


California Labor Code §§226 and 226.1 require certain information be included on itemized wage statements.

• Section 226(a)(9) now requires that wage statements issued by temporary service employers include the rate of pay and total hours worked for each temporary service assignment. (Security services companies that are licensed by the Department of Consumer Affairs and solely provide security services are not bound by the new requirement.)
• An employer may satisfy the record retention requirements by maintaining a copy of the itemized statement provided to an employee or a computer-generated record that accurately shows all of the information required by §226.
• An employee suffers an injury under the Section if the employer fails to provide a wage statement; or fails to provide accurate and complete information as required by §226(a)(1)-(9) and the employee cannot “promptly and easily” ascertain the information without reference to other documents.


California Labor Code §980 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 to divulge any personal social media.  The Section 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 demand by the employer that violates California Labor Code §980.  The Section 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. In addition, an employer can require or request an employee to disclose a username, password, or other method for purpose of accessing an employer-issued electronic device.


AB 2343 requires any authorized entity or individual that receives "[s]tate summary criminal history information" or subsequent arrest notification information from the California Department of Justice to expeditiously provide a copy of the information to the person to whom the information relates if the information is a basis for an adverse employment, licensing or certification decision. "State summary criminal information" is a master record summary of information gathered by California's attorney general pertaining to the identification and criminal history of any person (such as the name, physical description, fingerprints, dates of arrests and charges against that person).


Pursuant to newly enacted Civil Code §52.6, by April 1, 2013, specified businesses and other establishments, including adult or sexually oriented businesses, airports, bus stations, truck stops, urgent care centers and roadside rest areas, must post a notice that contains information related to slavery and human trafficking, including information regarding toll-free hotlines that provide access to help and services.  A model notice will be prepared by the Department of Justice.  The notice is to be in English, Spanish, and in one other language that is the most widely spoken language in the county where the establishment is located.  A business establishment that fails to comply will be liable for a civil penalty of $500 for a first offense and $1,000 for each subsequent offense.


All employers that pay “commissions” to employees working in California will be required to supply their employees with written contracts setting forth the formula for determining the commission as well as the method of payment.  Employers must also keep a signed receipt of the contract for each employee.  Under California’s Labor Code Private Attorney General Act, employers that violate the law may be fined $100 per employee per pay period for the first violation and $200 per employee per pay period for subsequent violations. (California Labor Code §2751)


Labor Code §515 was amended to clarify that payment of a fixed salary to a nonexempt employee shall be deemed to provide compensation only for the employee's regular, nonovertime hours, notwithstanding any private agreement to the contrary.  The amendment was enacted to overturn the decision of Arechiga v. Dolores Press (2011) 192 Cal.App.4th 567.  Arechiga determined that an explicit mutual wage agreement under which a nonexempt employee’s fixed salary compensated him for both regular and overtime worked was lawful.


The FEHC has been eliminated and its duties transferred to the Department of Fair Employment and Housing (DFEH). Previously, if the DFEH decided to pursue a charge of discrimination or harassment, the matter was referred to the FEHC, which had the power to conduct administrative hearings, including the ability to subpoena witnesses, publish opinions and conduct mediations at the request of the DFEH.  SB 1038 eliminates this administrative hearing process. In the future, the DFEH will be able to file civil actions on behalf of a complainant directly with the court. Mandatory dispute resolution is required prior to the DFEH bringing a civil action.  If the dispute resolution fails, the DFEH may file in civil court and will be entitled to recover reasonable attorney fees and costs when successful. The post-enactment analysis from the State indicates a prevalent focus on pre-litigation resolution.


California employers with five or more employees must make Pregnancy Disability Leave (“PDL”) available to employees.  Effective December 31, 2012, amended regulations clarify and, in some instances, expand the PDL protections afforded to employees.  Specific changes to the regulations include:

• A change in the definition of “four months.”  The amended regulations provide examples of how to calculate the four-month period if the employee works less than a full-time schedule or works a variable schedule.
•  An expanded definition of when a woman is “disabled by pregnancy.”  The revised definition includes such examples as post-partum depression and time off for “loss or end of pregnancy.”
• Clarification of an employer’s responsibilities regarding reasonable accommodation or transfer of employees affected by pregnancy, childbirth or related medical conditions.
• Clarification of the medical certification and documentation process.
•  An expansion of protections to include that it is unlawful to discriminate against or harass an applicant or employee based on “perceived pregnancy.”  Perceived pregnancy is defined as being regarded or treated by an employer as being pregnant or having a related medical condition.
• Mandatory changes to notices “A” and “B,” which provide information for employees about their rights and responsibilities under pregnancy disability leave (Notice “A”) and the California Family Rights Act (Notice “B”).


AB 2386 changes the definition of “sex” under FEHA to specifically include “breastfeeding and medical conditions related to breastfeeding.” FEHA prohibits specified discriminatory employment practices on the basis of sex. The current definition of “sex” under FEHA includes pregnancy, childbirth and medical conditions related to pregnancy and childbirth, as well as gender, gender identity and gender expression. In response to the recent change, employers will need to change notices, postings and employee handbook policies related to preventing discrimination to reflect the changes specified by AB 2386. (California Government Code §12926)


On December 26, 2012, the Office of Administrative Law approved the Fair Employment and Housing Commission’s disability regulations.  The regulations became effective on December 30, 2012. The changes to the disability regulations include:

• An expansion of the definitions of “mental” and “physical” disability.
• Clarification of what evidence might be used to show that a particular function is “essential” to a job.
• A description of the interactive process and obligations of both the employer and the employee or job applicant.
• A description of what constitutes a reasonable accommodation and specific examples, including a discussion of when a leave of absence might be an appropriate accommodation.


AB 1964 clarifies that FEHA’s discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices. AB 1964 amends Government Code sections 12926 and 12940 to provide the following definitions:
• “Religious dress practice” is 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” is also to be construed broadly and includes all forms of head, facial and body hair that are part of the observance by an individual of his or her religious creed. Although employees must be reasonably accommodated, the law specifies that an accommodation is “not reasonable” if the accommodation requires segregation of the individual from other employees or the public.  Employers do not have to accommodate an employee if it would create an “undue hardship” for the company.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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