Are You Ready for 2013? New Laws California Employers Should Keep - - PowerPoint PPT Presentation

37 Offices in 18 Countries

Are You Ready for 2013?

New Laws California Employers Should Keep in Mind Michael W. Kelly, Partner Squire Sanders (US) LLP michael.kelly@squiresanders.com

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• Explicitly expands Labor Code § 1198.5

rights to “former” employees

• Expands right to receive copies from just

documents employees signed to all personnel records maintained “relating to the employee’s performance or to any grievance concerning the employee..”

• Mandates employment records must be

maintained for three years after employment terminates

• Deadline for producing the copies is

generally 30 days

• Cap of 50 on number of responses per

month per employer

Employee Access to Records (AB 2674)

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• Review records retention policy to insure materials are

maintained for a sufficient period of time.

• Consider adopting a policy designating a specific person to

receive requests for records.

• Train managers regarding the consequences of keeping their
• wn files regarding employee performance.
• Adopt procedures to redact the names of non-manager

employees from documents placed in employee files when appropriate.

• Track the number of requests per month in large multi-office

employer.

Special Actions

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• Employers contemplating payments to

employees involving commissions must enter into written agreements setting forth the method of calculation

• Agreement must also specify how

commissions shall be paid

• Employer must sign the agreement and get

a signed receipt back from the employee

• Commission means: “compensation paid to

any person for services rendered in the sale

• f such employer’s property or services and

based proportionately upon the amount or value thereof.”

• Excludes short-term productivity bonuses,

temporary variable incentive payments that enhance but do not decrease payments and profit-sharing unless it is fixed percentage of sales or profits.

Written Commission Agreements (AB 2675)

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• Review pay plans and incentive compensation to determine

which plans qualify as commissions

• Convert commission plan documents to agreements
• Distribute signed versions
• Collect receipts
• Track expiration dates

Special Actions

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• Makes it substantially easier for employees

to win damages for failure to comply with Labor Code § 226’s requirements for pay stubs

• Up to $4,000 per employee
• Actual damages; or

– $50 for the initial pay period – $100 for each subsequent pay period

• Employee is deemed to have suffered an injury

in any pay period when the employee did not get pay statement or statement was not accurate and complete and the employee could not “promptly and easily” determine the information from the statement alone.

• Attorney’s fees and costs

Wage Statement Violations (SB 1255)

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• Review stubs to make sure all the required elements are present
• Inclusive dates of pay periods
• Hours and rates line up
• Indication of other periods if supplemental overtime recalculations are

included

• Maintain pay stubs for at least three years at place of

employment or “at a central location within the State of California”

• Temporary agencies must also break down hours worked and

rate of pay by individual assignment effective July 1, 2013.

Special Actions

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• Bars employers from requiring employees to

supply passwords and personal user id’s for social media sites

• Bars requiring employees to log in to

personal sites for manager to review

• Applies to candidates as well as employees
• Exception for situations where employer has

reasonable suspicion that accessing the site will provide relevant information for an investigation

Accessing Social Media (AB 1844)

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• Train managers to be sure they are not violating rules
• Weigh the seriousness of the infraction being investigated

versus the likelihood of finding evidence before deciding to demand log in information

• Consult with counsel because courts will likely weigh in

regarding privacy rights

Special Actions

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• Policies regulating religiously mandated

dress and grooming are covered by the fair Employment and Housing Act

• Employers barred from segregating

employees from the public on the basis of religiously-mandated dress

• Undue hardship exception
• Given remedial nature of statute, expect

standard for undue hardship to be very high

Religious Dress (AB 1964)

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• Definition of “sex” under FEHA is amended so that breastfeeding

and related medical conditions fall within FEHA’s anti- discrimination and anti-harassment umbrella

Breastfeeding Part of “Sex” (AB 2386)

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• Department of Justice ordered to prepare an 8.5” x 11”

regarding human trafficking:

• “If you or someone you know is being forced to engage in

any activity and cannot leave – whether it is commercial sex, housework, farm work, construction, factory, retail, or restaurant work, or any other activity – call . . .”

• Signs supposed to be ready by April 2013
• Posted in a “conspicuous place near the public

entrance” or “another conspicuous location in clear view of the public and employees where similar notices are customarily posted

• $500 for first offense and $1,000 for each subsequent
• ffense.
• 12 categories of places including emergency rooms,

urgent care centers and some businesses offering massages.

Human Trafficking Notices (SB 1193)

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• For those you who require CLE please note the

following states have been approved, California, Arizona, New York, and New Jersey through state reciprocity rules.

• Please complete the online affidavit included in the

webinar reminder sent to everyone yesterday. An additional copy of the affidavit will also be emailed in a follow up communication tomorrow.

• Don’t forget to include the affirmation code on the form.

PDF a copy of the signed form to Robin Hallagan at robin.hallagan@squiresanders.com. Remember to complete the webinar survey immediately following the end of this presentation. You are required to complete this evaluation before receiving a certificate of attendance.

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