Breastfeeding, Social Media, Wages, Human Trafficking: California Employers Face Mountain of New Labor Laws

On September 30, 2012, California’s Governor Jerry Brown signed a package of new employment laws and amendments to existing statutes, most of which go into effect on January 1. Here are some of the highlights:

On social media privacy:

“Assembly Bill No. 1844 prohibits an employer from ‘requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.’” (Mintz Levin)

“The new law defines ‘social media’ as videos, photographs, blogs, instance messages, text messages, email, websites or online accounts, and other web-based profiles.” (Hopkins & Carley)

“The bill carves out two exceptions. First, an employer can require disclosure of usernames and passwords if it is relevant to an investigation of employee misconduct or employee violations of laws or regulations. Second, the bill does not preclude employers from requiring or requesting an employee to disclose a username or password for the purpose of accessing an employer-issued electronic device.” (Fisher & Phillips)

“The new law also prohibits employers from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an applicant or employee for his or her refusal to comply with an employer’s request or demand that violates AB 1844. However, the Labor Commissioner is not required to investigate or determine any violation of this new law.” (Kronick Moskovitz Tiedemann & Girard)

On employee access to personnel files:

“Effective January 1, 2013, California employers will face penalties for noncompliance with state requirements allowing for employee inspection of personnel records. [The new bill] … adds copying and recordkeeping requirements, as well as penalty provisions, to existing state law.” (XpertHR)

“In the event an employer violates these provisions, a current or former employee, or the Labor Commissioner, may recover a penalty of $750 from the employer. In addition, a current or former employee may obtain injunctive relief and attorneys’ fees necessary in asserting these rights.” (Littler)

On overtime wages:

“California employers are now prohibited from using explicit mutual wage agreements, in which nonexempt employees agree to a fixed salary that covers all hours worked, including overtime.” (XpertHR)

“AB 2103 … [r]equires that nonexempt employees paid on a salary basis be paid overtime above and beyond salary. Amends Cal. Labor Code to provide that, regardless of the agreement between an employee and an employer, a salaried, nonexempt employee must be paid for each overtime hour at a rate that is at least 1.5 times the weekly salary divided by no more than 40.” (Morgan Lewis)

On breastfeeding in the workplace:

“California employers should be prepared to extend even greater protection to breastfeeding women in the workplace in light of legislation recently signed by Governor Jerry Brown explicitly prohibiting discrimination against breastfeeding women.” (XpertHR)

“The [new law] expand[s] the definition of ‘sex’ under the California Fair Employment and Housing Act (FEHA), which prohibits specified discriminatory practices in employment. Under existing law, ‘sex’ includes gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. AB 2386 expands the definition of ‘sex’ to include breastfeeding and medical conditions relating to breastfeeding.” (Ballard Spahr)

On whistleblower protections:

“The CFCA amendments expand whistleblower protections to include contractors and agents who pursue false claims actions, expand the definition of a false claim, amend the statute of limitations, and authorize courts to award attorneys’ fees in more cases, all consistent with federal law. The new law also increases civil penalties by 10%, now ranging from $5,500 to $11,000 per false claim” (Pillsbury)

“The changes made by AB 2492 may—if employers who provide goods and services directly or indirectly to state and local governments are not careful—lead to an increase in claims for improper billing practices, penalties, and civil lawsuits by employees.” (Littler)

On religious expression in the workplace:

“[The law] adds ‘religious dress practice’ and ‘religious grooming practice’ as a belief or observance to existing protections against religious discrimination in the [Fair Employment and Housing Act]. The amended Act directs ‘religious dress practice’ to be broadly construed and ‘to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.’” (Littler)

On slavery and human trafficking:

“Effective January 1, 2013, certain California employers will have to conspicuously post a notice that contains information related to slavery and human trafficking. Failure to comply with the posting requirements may result in a $500 civil penalty for a first offense, and a $1000 penalty for each subsequent offense.” (XpertHR)

On pay statements:

“In addition to the information that was previously required to be included on itemized wage statements, [the amended] Section 226 … will also require that itemized wage statements issued by temporary service employers must include the rate of pay and total hours worked for each temporary service assignment.” (Orrick)

The updates:

Additional reading:

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