Employment Law Changes for 2013 – Part 1

There are a number of important changes in the law for 2013 affecting California employers. Part 1 discusses new laws for issues ranging from religious dress to commission payments. Part 2 covers issues ranging from whistleblower protection to information that must be provided to all new hires. The items discussed here are not a full list of all changes to the law this year, nor are the points referred to comprehensive of each law, given the nature of this summary. Unless otherwise noted, these laws take effect on January 1, 2013.

Social Media – At the top of the list is a law affecting social media policies and practices. AB 1844 added Labor Code § 980 that prohibits employers from asking employees or job applicants for their social media passwords. There is an exception that allows employers to request passwords in conjunction with certain types of workplace investigations. The Labor Code does not prohibit employers from requiring employees to provide a password for access to an employer issued electronic device. 

Employers should be aware there is increased scrutiny on how employers draft and enforce social media policies. Employers should be careful not to draft overly broad policies that might restrict concerted activity or punish legitimate off-the-clock activity by employees. Many employers are unaware that the Labor Code prohibits employers from taking action against employees for lawful conduct occurring during nonworking hours away from the employer’s premises. This is an important consideration in drafting and enforcing social media policies.

Businesses should develop reasonable policies that ensure the content created by their employees for the business are clearly the property of the business. Contact this office for assistance in developing appropriate social media policies.

Commissions – AB 2675 and AB 1396 affect Labor Code § 2751 regarding commissions paid to employees in California. It requires that employers have a written commission plan setting forth the method by which commissions are computed and paid. Employees must receive the plan and sign an acknowledgement of its receipt. This change repeals Labor Code § 2752.

Paycheck Stubs – AB 1744 and SB 1255 both affect Labor Code § 226, known as the paycheck stub statute. Labor Code § 226 requires that employers provide nine categories of information on their employees’ paychecks. SB 1255 provides that failure to include the required information can result in an aggregate $4,000 penalty per employee, plus attorney’s fees and costs. The law now presumes an employee suffers an injury when the information on the paycheck stub does not allow the employee to promptly and easily determine: the amount of gross or net wages that are due, the deductions, the employer’s name and address, the employee’s name and last four digits of the employee’s social security number. 

AB 1744 adds a requirement to Labor Code § 2810.5 that temporary staffing agencies provide information on the paycheck stub identifying the legal entity for which the employee is working. The changes required by AB 1744 take effect July 1, 2013.

Religious Dress and Grooming – AB 1964 adds new items to the list of protected categories under Government Code § 12940. The meaning of “religion” has been expanded to include “religious dress” and “religious grooming practices” to the categories for which discrimination is prohibited and a reasonable accommodation is required. These amendments address religious clothing, including head and face coverings, religious artifacts and jewelry, and grooming practices such as the care or maintenance of hair in observance with one’s religious creed. 

Breastfeeding – AB 2386 expands Government Code § 12926 protections under the Fair Employment and Housing Act for discrimination based on sex. Specifically, this incorporates “breastfeeding” and “medical conditions related to breastfeeding” to the definition of “sex” under the law. California employers were already required to provide certain reasonable accommodations to pregnant and breastfeeding mothers under the Labor Code. This bill clarifies existing law.

This information is provided for informational purposes only and should not be construed as legal advice. It should not be acted upon without consulting a licensed California attorney about the facts, particular needs and questions of the person or entity considering these issues.