California Apparel News

With the stroke of several employee-friendly pens, Gov. Jerry Brown enacted a number of new employment laws in California that take effect on Jan. 1, 2013. These laws further expand the rights of employees in California and further increase the burdens on employers. This is a brief synopsis of the new employment laws that are most likely to affect your business and that require changes to your policies and practices.

Commission Agreements Must Be in Writing and Signed by the Employee

If you are an employer who pays commissions to employees, it is no longer enough to have an oral agreement to pay commissions or to include a description of a commission plan in an employee handbook or other form of mass communication to employees. Effective Jan. 1, 2013, all employers who pay commissions to employees performing services in California must put the commission agreement in a written contract that describes the method by which the commissions are computed and paid. The employer must give a copy of the signed contract to the employee and retain a written, signed acknowledgement from the employee that she or he received a copy of the contract. In addition, if the written commission contract expires and the parties continue to work under the terms of the expired contract, its terms are presumed to remain in full force and effect until the written contract is expressly superseded by a new written contract or the employment is terminated by either party.

Expanded Duties to Provide Copies of Personnel Files

Starting Jan. 1, 2013, employers must:

•Maintain employee personnel records for at least three years after the employee’s separation.
•Provide current and former employees (or their representatives) with copies of personnel records. The employer may redact the names of any nonsupervisory employees before making the records available to the employee.
•Provide a copy of the employee’s personnel records within 30 days of a request or 35 days if the parties agree to a written extension.
•Develop a written form that employees may use to request records in their personnel file and provide it to the employee (or employee representative) upon verbal request.

No Fixed-Salary Agreements Covering Overtime

The California Labor Code is amended to specifically provide that an employer and a non-exempt salaried employee may not enter into a fixed-wage agreement covering regular and overtime compensation. Notwithstanding any private agreements to the contrary, an employer must pay non-exempt salaried employees for overtime hours worked at the rate required by law (not less than 1.5 times the hourly rate of 1/40th of the employee’s weekly salary).

Expansion of California Discrimination Law: Religious Accommodation

Under current California law, employers must reasonably accommodate religious beliefs, observances and practices of employees unless doing so would cause an undue hardship. Effective Jan. 1, 2013, the law specifically requires accommodation of “religious dress practices” and “religious grooming practices,” broadly defined to include head or face coverings, jewelry, the wearing or carrying of religious clothing, and the wearing of all forms of head, facial and body hair in the observance of the employee’s religion.

There are two narrow exceptions to accommodation under the new law:

•When accommodation would require segregating the employee from the public or other employees.
•When accommodation constitutes a violation of some other law prohibiting discrimination or protecting civil rights.

Employers Prohibited from Requesting Social-Media Information From Employees and Applicants

Employers are now prohibited from requiring or requesting that employees or job applicants:

•Divulge any personal social media to the employer.
•Disclose their user names or password information for the purpose of accessing any personal social media.
•Access their personal social media in the presence of the employer.

An employer may require an employee to disclose a user name or password to access an employer-issued electronic device. An employer may not discipline, discharge, retaliate, or threaten to discipline or discharge an employee for not complying with a request in violation of the law.

Clarification of Requirement to Provide Wage Statements

Under current law, an employer who “knowingly and intentionally” fails to provide a wage statement (pay stub) that complies with the nine requirements in Labor Code section 226(a) is subject to an award of actual damages or statutory penalties up to $4,000 in connection with any “injury” to the employee. The new law clarifies the employer’s duty by providing that an employee is deemed to suffer an injury if the employer fails to provide a wage statement at all, or if the employer fails to provide accurate and complete information as required by 226(a) and the employee cannot promptly and easily determine from the wage statement alone any of the following:
(i) the amount of and manner in which the employer calculated the gross wages and net wages paid to the employee during the pay period;
(ii) which deductions the employer made from gross wages to determine the net wages paid to the employee during the pay period;
(iii) the name and address of the employer; and
(iv) the name of the employee and the last four digits of his or her Social Security number or an employee identification number.

The foregoing briefly summarizes the new employment laws that are most likely to affect your business and that require changes to your policies and practices. There may be additional details that apply to your company. Employers should audit their current policies and practices and make any necessary changes to ensure they are in full compliance with these new laws by Jan. 1, 2013.

Kalley R. Aman, Paul L. Bressan and Jeffrey H. Kapor are attorneys with Los Angeles–based law firm Buchalter Nemer.

Aman is a shareholder in the firm’s Litigation and Labor & Employment Practice Groups. She can be reached at (213) 891-5028or kaman@buchalter.com.

Bressan chairs the firm’s Labor and Employment Practice Group. He can be reached at (213) 891-0700 or pbressan@buchalter.com. Kapor chairs the firm’s Apparel Practice Group. He can be reached at (213) 891-5003 or jkapor@buchalter.com. ●