Within the past several years, there have been many reports about employers requesting Facebook and Twitter usernames from employees and applicants. Therefore, California has responded with law preventing this. As of January 1, 2013, through AB 1844, Labor Code Section 980 prevents an employer from requiring or requesting employees or applicants share personal social media, share usernames or passwords to access personal social media, or access personal social media in the presence of the employer.
Though, this law has some exceptions. For one, employers are permitted to request an employee share personal social media reasonably believed to be relevant to an investigation of employee misconduct or violation of law as long as the social media is used solely for purposes of that investigation or a related proceeding. Secondly, the employer may require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
I am often asked by my clients whether they should place a labor/employment law poster in their office. My answer is always yes, especially if they do not provide employees with employee handbooks. In fact, this is also a good poster for employees to have as well to understand the state and federal employment laws. As such, below is a link to such a poster, which can be purchased for under $20.
The new year is quickly approaching. And, as we have learned, a new year means new California employment laws. The next several posts will assist employers and employees in knowing and understanding these new laws.
The first law I will discuss deals with the expansion of FEHA laws. FEHA stands for the California Fair Employment and Housing Act and it prevents employers, among others, from engaging in certain types of discrimination, including on the basis of “sex.” It is the definition of “sex” that a new 2013 law (AB 2386) expands. Prior to AB 2386, “sex” under FEHA was defined as including gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. However, AB 2386 adds breastfeeding and medical conditions related to breastfeeding to the definition of “sex” under FEHA. As such, it appears the new law would prevent discrimination against, or any retaliation for, a woman breastfeeding a child. Indeed, such a law is long overdue.
Numerous employers these days find it necessary to perform background check on employees and potential employees. However, there are many laws that govern such background checks, especially in California.
An employer who obtains an “investigative consumer report” in connection with its personnel decisions (hiring, promotion, reassignment, retention, etc.) must comply with the requirements of both the federal and California law. An “investigative consumer report” is one containing information on an applicant’s or employee’s character, reputation, personal characteristics or mode of living. See 15 USC § 1681a(e); see also Civ.C. § 1786.2(c). Unless the person is suspected of misconduct, the employer must notify a job applicant or employee in writing that the employer may obtain an investigative report on the person’s “character, general reputation, personal characteristics and mode of living.” See 15 USC § 1681d(a)(1); see also Civ.C. § 1786.16(a)(2). Failure to comply with the above requirements exposes the employer to civil liability for monetary damages, punitive damages if appropriate, and costs of the action together with reasonable attorney fees determined by the court. See 15 USC §§ 1681n(a), 1681o(a); see also Civ.C. § 1786.50. Alternatively, the applicant or employee may sue the employer for invasion of privacy or defamation within two years after discovery. See Civ.C. § 1786.52.
However, as for the misconduct exception, no advance notice is needed if the report is for the inspection of suspected misconduct or non-compliance with federal, state or local laws and regulations, rules of a “self-regulatory organization” (as defined in 15 USC § 1681a(x)(3) (added 2003)), or any preexisting rules of the employer. See 15 USC § 1681a (x)(1)(B). Though, an employer who uses a report obtained in connection with an investigation of workplace misconduct as the basis for an adverse employment decision must provide the employee with a summary of the “nature and substance” of the report. The summary need not disclose the sources of the information acquired solely for the report. See 15 USC § 1681a (x)(2).
Businesses, workers and lawyers throughout California have been waiting for the California Supreme Court holding in Brinker Restaurant Corp. v. Superior Court, which was granted review back in 2008. After a long wait, the Court issued a decision recently.
The Court reiterated that employees are “entitled to 10 minutes’ rest for shifts from three and one-half to six hours in length, 20 minutes for shifts of more than six hours up to 10 hours, 30 minutes for shifts of more than 10 hours up to 14 hours, and so on.” After the Court rejected the argument that employers must always permit their employees a rest break before any meal period, the Court held that the “only constraint on timing is that rest breaks must fall in the middle of work periods ‘insofar as practicable.’ Employers are thus subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it infeasible. The Court further held that “in the context of an eight-hour shift, ‘[a]s a general matter,’ one rest break should fall on either side of the meal break…[s]horter or longer shifts and other factors that render such scheduling impracticable may alter this general rule.”
With respect to meal periods, the Court held that an employer’s duty is satisfied if the employer relieves its employees of all duty, relinquishes control over their activities, permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so. Further, the Court held that
an employee’s voluntary choice to work during a meal period does not constitute a violation by the employer of its obligations. In fact, it was held that that “the obligation to ensure employees do no work may in some instances be inconsistent with the fundamental employer obligations associated with a meal break: to relieve the employee of all duty and relinquish any employer control over the employee and how he or she spends the time.”
The Court also explained that “proof an employer had knowledge of employees working through meal periods will not alone subject the employer to liability for premium pay…[o]n the other hand, an employer may not undermine a formal policy of providing meal breaks by pressuring employees to perform their duties in ways that omit breaks.”
Moreover, the Court rejected Plaintiffs’ “rolling five” argument. A second meal period must start within ten hours of work. This means that the second meal period must start no later than the beginning of the 11th hour (i.e., by the end of the employee’s tenth hour of work, or 10:00 on a timer).
Indeed, this holding does somewhat explain an employer’s obligation in respect to meal and rest breaks. However, do not expect wage and hour lawsuits to subside. We do believe they will continue at the same rate as before.
My last post discussed AB469, which came into effect January 1, 2012. Since then, to ease the burden associated to this piece of law, the California Department of Industrial Relations has provided the general public with a template to use that, when completed, complies with the requirements of AB469. Indeed, this template makes following AB469 much easier. Click here to be directed to this template in English. Though, if you need this template in Spanish, click here.
And, yet another new employment law being enacted on January 1, 2012. AB469 will require employers to provide newly hired, non-exempt employees written notice of the following:
- The rate or rates of pay and basis thereof, whether paid bythe hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.
- Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.
- The regular payday designated by the employer inaccordance with the requirements of this code.
- The name of the employer, including any “doing business as” names used by the employer.
- The physical address of the employer’s main office or principal place of business, and a mailing address, if different.
- The telephone number of the employer.
- The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.
- Any other information the Labor Commissioner deems material and necessary.
Further, if there are changes to the above information during the time of employment, an employer shall notify his or her employees in writing of the changes within seven calendar days after the time of the change.
I know what you are all thinking, this law is a major pain for employers. Well, I cannot disagree with you there. This new law should lead to many more new lawsuits.
If you are a employer in California, recordkeeping is a must. In fact, employers must keep in their possession the hours worked by employees and amounts paid to employees. Further, employers must keep names and addresses of employees, along with the ages of any employees that are minors. This information must be kept by the employer for at least two years, and, if there are wage deductions, then for three years (personally, I would recommend for employers to keep these records for at least five years just to be safe). While said recordkeeping requirements appear to be burdensome, it is necessary under California law.
What if an employee wants to inspect these records? An employer must allow it, and must provide this information or inspection within twenty-one (21) days or else the employer may be liable for a $750 fine and the costs and fees in enforcing this fine.
Therefore, given these litigious times, employers, now more than ever, must make a conscious effort to keep records of all information possible that document an employees employment.
The oral arguments in Brinker were heard on November 8, 2011. Based off the questioning by the justices, it appears as if the California Supreme Court is favoring the side of employers (i.e. meal and rest breaks need only be made available, and employees need not be required to take the breaks). The Court has 90 days to issue a decision after the arguments, which should bring us a decision by February 6, 2012.
Tomorrow morning (November 8, 2011) at 9:00 a.m., oral arguments in Brinker Restaurant Corp. v. Superior Court (this case is described in detail below) will begin. Indeed, this case will have a monumental impact on California Employment Law. Stay tuned for additional updates!