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.

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