Friday, December 28, 2012

New Laws Affecting Employers/Employees for 2013

Every year the California legislature adds a few wrinkles to the practice of employment law.  This year is no different.  While there are many others, the following are 3 new laws that affect areas that I deal with quite often.

     Mistakes on Wage Statements (SB 1255/Labor Code § 226):

It has been the law for some time that employers are required to provide nine categories of information on an employee's wage statement.  However, this new law makes clear that if an employer fails to provide that information, employees are deemed to suffer an "injury" for the purpose of recovering a penalty: $50 for the initial pay period; $100 for each subsequent pay period, with a maximum penalty of $4,000, as well as attorneys' fees.  To avoid costly mistakes, employers should ensure that the following nine pieces of information appear on each employee's wage statement:

1.    Name and address of the legal entity who is the employer; and
2.    Gross wages earned;
3.    Total hours worked (except for exempt employees);
4.    Piece rate units or piece rates (if applicable);
5.    All deductions;
6.    Net wages earned;
7.    The inclusive dates of the period for which the employee is paid;
8.    Employee name and last four digits of the social security number or employee ID;
9.    All applicable hourly rates in effect during the pay period and corresponding number of hours worked.

Employers Barred From Requesting Social Media Information. (AB 1844/Labor Code § 980)

This new law increases privacy protections for social media users in the state by prohibiting employers from asking employees or job applicants to disclose any information related to their personal social media accounts, which includes an employee's e-mail account and text messages.  This protection includes demanding usernames, passwords, and information related to social media accounts from employees and job applicants. The law also prohibits employers from retaliating against anyone who refuses to provide such information.

However, the law provides an exception where the employer reasonably believes that the employee has engaged in misconduct or has violated the law, and the social media information is used solely for the purpose of an investigation.  Further, nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.

Current and Former Employees Get Greater Access to their "Personnel Files." 

A new bit of legislation (AB 2674 ) modifies Labor Code §§ 226 and 1198.5.  Under these revised sections, Employers are required to provide current and former employees with access to and copies of their personnel records "relating to the employee's performance or to any grievance concerning the employee" within 30 days of the request.  (The law previously required only that they be made “available for inspection.”)

The new law does not clearly define "personnel records" but some examples of personnel records are: handbook acknowledgment forms; signed arbitration agreements; employment applications; payroll authorization forms; warnings, discipline and/or termination notices; notices of layoff, leave of absence, or vacation; garnishment notices; training notices; performance reviews; and attendance records.  Failure to comply with this new law may subject an employer to a penalty of $750 per violation, as well as attorneys' fees. With regard to all employees, employers are also required to maintain a copy of each employee's personnel records for a period of not less than three years after termination of employment.

Thursday, December 27, 2012

Federal employee receives a 5-page written warning for . . . passing gas!

Okay, so the year is winding down and we don't always want to hear/read stories that are "too legal."  So, we offer the following story from The Smoking Gun website about a Social Security Administration employee disciplined for being to gaseous.  

According to the Smoking Gun account, the federal employee was formally reprimanded this month for excessive workplace flatulence, a sanction that was delivered to him in a five-page letter that actually included a log of representative dates and times when he was recorded “releasing the awful and unpleasant odor” in his Baltimore office.  (To view the memo, click the following link, provided via the Smoking Gun, which provided content for this post.) 

The reprimand, which apparently came after at least three flatulence related meetings with his supervisors, accused the employee of “conduct unbecoming a federal officer,” and he  was informed that his “uncontrollable flatulence” had created an “intolerable” and “hostile” environment for coworkers, several of whom have lodged complaints with supervisors. 

I guess this will all make us think twice about overindulging at "Taco Tuesday."  

[Substantial content for this post derived from ]

'Price Is Right' Model Wins $7.7 Mil In Pregnancy Discrimination Lawsuit

Brandi Cochran, a former Price is Right model, was awarded $7.7 Million (including $7 Mil. in punitive damages) against the producers of the day-time TV game show, for allegedly discriminating against her based on her pregnancy. 

Under California law, employees who have been discriminated against can recover a wide range of damages, including compensatory damages (lost wages from the date of firing up through trial, future earnings, the costs of medical care, and interest on damages), emotional distress damages and, in many cases, attorney’s fees.  In some cases, such as this Price is Right case, employers may be vulnerable to punitive damages, designed to punish the employer and deter further discriminatory acts.

Ms. Cochran had worked on the show for seven years before getting pregnant.  Cochran alleged that, shortly after she told producers that she was pregnant, her executive producer asked about how long was she planning to work, and whether she would try to work if she got "really big." Then, after gaining weight, other show employees teased her about the weight gain and called her insulting names such as "wide load."  She also claimed that the producers pressured to announce her pregnancy on the air, and when she delivered the news that she was carrying twins, she was given less work. Ms. Cochran further alleged that, after taking maternity leave in 2010, the producers refused to call her back and then fired her after four months.  She filed suit.

The LA jury agreed with Ms. Cochran and awarded the former model $7,763,440 in damages, including $776,000 in compensatory damages and a substantial $7 million in punitive damages.  

The show’s producers, FremantleMedia, have stated that they would be appealing the ruling because they claim that the court refused to allow the jury to hear evidence that the show had allowed other models to appear on the show while pregnant.  (I would also expect the punitive damages award to be challenged, based on the Supreme Court case of State Farm Mut. Auto. Ins. Co. v. Campbell (2003) 538 US 408, 133 S.Ct. 1513, which held that punitive damages awards ordinarily should not exceed compensatory damages by more than a single-digit ratio.)