If you're a California employer, there are a number of recent changes in the law that you should know about. Most took effect on Jan. 1.
• PREGNANCY DISABILITY LEAVE
Employers of five or more employees must now continue health benefits for a pregnant employee on disability leave. For example, if she had health coverage while working, and you paid 50 percent of her premium, you have to continue to pay 50 percent of that premium while she's on pregnancy disability leave, up to four months. The new law is AB 592 and SB 299, both on the California legislature's website, www.leginfo.ca.gov.
• New union rights poster by Jan. 31
Make sure your standard posters are up to date. One new requirement is a poster informing employees of their unionization rights under the National Labor Relations Act. Don't think you're too small, almost all employers are required to post this.
• New employee wage notice
You now must give new employees written notice of their rate of pay and how it's calculated (by hour, week, shift, piece, etc.), the regular payday, the employer's official name, address, phone number and workers compensation carrier. It's called the "Employee Wage Theft Prevention Act" (feel accused?) and there should be more information on the Labor Commissioner's website: (www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html) Changes must be given in writing within 7 days of a change. Exempt employees are not included.
• Be carefulwith Facebook
The next big area for litigation may be "Facebook firings." Employees who complain about working conditions on Twitter, Facebook etc. may be protected by federal law. It's more important than ever that you get legal advice before firing anyone for cause. Also, check your employee handbook. If it says employees can be fired for bad-mouthing the company in public, the policy itself may be a problem.
• No credit checks
Up to now, most employers could check an employee's background, including credit. Not any more. Under AB 22, employers may not check the credit of an employee or candidate unless it is for a manager's position (must meet certain criteria), or the employee will handle personal financial information (except taking credit applications in a retail store), will be a signer on your bank account, or will have access to cash of $10,000 or more, or certain trade secrets. There are a few other limited exceptions, but be sure you get advice before you run another credit check on any employee!
• Independent contractor? better be right!
New Labor Code Section 226.8 makes it unlawful to "intentionally misclassify" an employee as an independent contractor. Before you agree to give any worker a 1099 instead of a W-2, better check the law. Otherwise, you risk fines of $5,000 to $25,000 per violation! Anyone who advises an employer to misclassify someone could also be fined! If all of this sounds fuzzy and dangerous, then you have read it correctly. Don't hire another independent contractor without getting solid advice on this one.
• Commission agreements in writing
Employers who pay on a commission basis have to have a written agreement specifying how commissions are calculated and paid. You must get a receipt from each employee subject to the agreement.
• Discrimination Law Changes
It is now illegal to discriminate in California on the basis of "gender expression", how someone dresses or appears, whether or not it fits gender stereotypes. Check your dress code, it may be way out of date.
Also, "genetic information" is protected and can't be used to make hiring/firing decisions. That includes information about an employee's health or diseases or those of his or her family members!
I'm also seeing more cases that involve disability discrimination claims. Be careful when an employee asks for a change in working conditions because of a physical or mental condition. The law requires you to engage in an "interactive process" to find solutions when an employee has a disability. And recent rules have broadened the definition of "disability." Make sure you have clear job descriptions that include physical requirements.
• Prevailing Wage Penalties
Penalties for Prevailing Wage violations have been quadrupled. Sorry, Sacramento needs the money.
• Overtime Rules
In the next few months, look for news about a major court decision on meal and rest periods.
Lou Storrow has been a Carlsbad lawyer for more than 20 years, and has been a chamber member for nearly all of that time. He can be reached at [email protected].
• PREGNANCY DISABILITY LEAVE
Employers of five or more employees must now continue health benefits for a pregnant employee on disability leave. For example, if she had health coverage while working, and you paid 50 percent of her premium, you have to continue to pay 50 percent of that premium while she's on pregnancy disability leave, up to four months. The new law is AB 592 and SB 299, both on the California legislature's website, www.leginfo.ca.gov.
• New union rights poster by Jan. 31
Make sure your standard posters are up to date. One new requirement is a poster informing employees of their unionization rights under the National Labor Relations Act. Don't think you're too small, almost all employers are required to post this.
• New employee wage notice
You now must give new employees written notice of their rate of pay and how it's calculated (by hour, week, shift, piece, etc.), the regular payday, the employer's official name, address, phone number and workers compensation carrier. It's called the "Employee Wage Theft Prevention Act" (feel accused?) and there should be more information on the Labor Commissioner's website: (www.dir.ca.gov/dlse/Governor_signs_Wage_Theft_Protection_Act_of_2011.html) Changes must be given in writing within 7 days of a change. Exempt employees are not included.
• Be carefulwith Facebook
The next big area for litigation may be "Facebook firings." Employees who complain about working conditions on Twitter, Facebook etc. may be protected by federal law. It's more important than ever that you get legal advice before firing anyone for cause. Also, check your employee handbook. If it says employees can be fired for bad-mouthing the company in public, the policy itself may be a problem.
• No credit checks
Up to now, most employers could check an employee's background, including credit. Not any more. Under AB 22, employers may not check the credit of an employee or candidate unless it is for a manager's position (must meet certain criteria), or the employee will handle personal financial information (except taking credit applications in a retail store), will be a signer on your bank account, or will have access to cash of $10,000 or more, or certain trade secrets. There are a few other limited exceptions, but be sure you get advice before you run another credit check on any employee!
• Independent contractor? better be right!
New Labor Code Section 226.8 makes it unlawful to "intentionally misclassify" an employee as an independent contractor. Before you agree to give any worker a 1099 instead of a W-2, better check the law. Otherwise, you risk fines of $5,000 to $25,000 per violation! Anyone who advises an employer to misclassify someone could also be fined! If all of this sounds fuzzy and dangerous, then you have read it correctly. Don't hire another independent contractor without getting solid advice on this one.
• Commission agreements in writing
Employers who pay on a commission basis have to have a written agreement specifying how commissions are calculated and paid. You must get a receipt from each employee subject to the agreement.
• Discrimination Law Changes
It is now illegal to discriminate in California on the basis of "gender expression", how someone dresses or appears, whether or not it fits gender stereotypes. Check your dress code, it may be way out of date.
Also, "genetic information" is protected and can't be used to make hiring/firing decisions. That includes information about an employee's health or diseases or those of his or her family members!
I'm also seeing more cases that involve disability discrimination claims. Be careful when an employee asks for a change in working conditions because of a physical or mental condition. The law requires you to engage in an "interactive process" to find solutions when an employee has a disability. And recent rules have broadened the definition of "disability." Make sure you have clear job descriptions that include physical requirements.
• Prevailing Wage Penalties
Penalties for Prevailing Wage violations have been quadrupled. Sorry, Sacramento needs the money.
• Overtime Rules
In the next few months, look for news about a major court decision on meal and rest periods.
Lou Storrow has been a Carlsbad lawyer for more than 20 years, and has been a chamber member for nearly all of that time. He can be reached at [email protected].