California Employment Attorney Blog

2011 was an active year in California employment law. The following is a summary of important new laws that California employers must now comply with.

The Wage Theft Prevention Act of 2011 (AB 469): This act requires employers to provide all newly-hired, non-exempt employees with a written notice of the following wage information at the time of hiring:

• The rate or rates of pay and the basis for the pay;


• Allowances, if any, claimed as part of the minimum wage, including meal or lodging;


• The regular payday;


• The name of the employer, including any "doing business as" names;


• The physical address of the employer's main office or principal place of business, and a mailing address, if different;


• The employer's telephone number;


• The name, address, and telephone number of the employer's workers' compensation insurance carrier; and


• Any other information the California Labor Commissioner deems necessary.

Employees must be notified of changes to this information within seven days of the change. The California Labor Commissioner has published a model notice and answers to Frequently Asked Questions about the law.

In addition, the law increases penalties for wage violations, provides for employer restitution of certain wages, and extends from one years to three years the statute of limitations on collection actions by the California Department of Labor Standards Enforcement.

New Fines for Willful Misclassification of Independent Contractors (SB 459): Imposes a civil penalty of between $5,000 and $15,000 for each violation on a person or employer that willfully misclassifies an employee as an independent contractor. The penalty increases to between $10,000 and $25,000 for each violation if there is a "pattern or practice" of willful misclassification. The law also subjects paid, non-attorney advisors to joint and several liability if they knowingly and incorrectly advise the employer to treat an individual as in independent contractor. Employers must post notice of any violations for one year on their website. In addition, employers may not charge a fee or make any deduction from an individual's compensation where the fee or deduction would have been illegal if the individual were not an independent contractor.

Restrictions on Use of Consumer Credit Reports (AB 22): Prohibits employers from obtaining a consumer credit report in connection with an employee or applicant background check except for the following positions:

• A managerial position which qualifies for the executive exemption from overtime pay under the California Wage Orders;


• A position that affords regular access to all of the following information of any one person: bank or credit card information, Social Security numbers and dates of birth (as long as the access to this information does not merely involve routine solicitation and processing of credit card applications in a retail establishment);


• A position for which the employer is required by law to consider credit history information;


• A position for which the information contained in the report is required by law to be disclosed or obtained;


• A position requiring the employee to be named a signatory on the bank or credit card account of the employer, transfer money on the employer's behalf, or be authorized to enter into financial contracts on the employer's behalf;


• A position that affords access to confidential, proprietary and/or trade secret information;


• A position that affords regular access during the workday to the employer's, a customer's or a client's cash totaling at least $10,000; and


• A position in the State Department of Justice or a sworn peace officer or law enforcement position.

If an applicant or employee falls within one of these exceptions, the employer must give advance notice of the specific exception that applies.

In addition, employers that order background reports other than credit reports, such as criminal background reports or motor vehicle reports, must provide the subjects of the report with the website address of the consumer reporting agency. If there is no website address, the employer must provide the telephone number of the agency.

Commission Contract Requirements (AB 1396): Effective January 1, 2013, employers that enter into an employment contract involving commission payments for services to be rendered within California must put the contract in writing and specify the method by which commissions are to be computed and paid. The employer must give a signed copy of the contract to every employee who is a signed party to the agreement and must obtain a signed receipt for the contract from each new employee.

Health Benefit Contribution Requirements for Pregnancy Disability Leave (SB 299): Employers must provide up to four months of Pregnancy Disability Leave under existing California law. Now, they must provide up to four months of group health insurance coverage to employees on pregnancy leave on the same terms and conditions as if the employee continued actively reporting to work.

Organ and Bone Marrow Donor Leave (SB 272): Employers must provide 30 business days of leave in a one year period for employees who are organ donors, and 5 business days in a one year period for employees who are bone marrow donors. The leave is measured from the date the employee's leave begins and consists of 12 consecutive months. The law clarifies that the leave is not a break in service regarding the right to any paid time off, and contains further provisions regarding use of the leave in relation to paid time off, sick time and vacation leave.

Genetic Information (SB 559): Amends the California Fair Employment and Housing Act (FEHA) to prohibit discrimination on the basis of genetic information. Genetic information is defined as information about (1) the individual's genetic tests, (2) the genetic tests of family members of the individual, (3) the manifestation of a disease or disorder in family members of the individual, and (4) any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by any individual or family member of the individual.

Gender Expression (AB 887): Amends the FEHA to clarify that prohibited discrimination on the basis of sex or gender includes discrimination on the basis of a person's gender identity and gender expression. The law defines gender expression as gender-related appearance and behavior, whether or not stereotypically associated with the person's assigned sex at birth.

For more information about any of these new laws, contact the attorneys of Michelman & Robinson's Labor & Employment Department.

On March 22, 2011, the United States Supreme Court issued its decision in Kasten v. Saint-Gobain Performance Plastics Corp. The Court held, in a 6-2 decision, that the anti-retaliation provisions of the Fair Labor Standards Act (FLSA) protect oral, as well as written, complaints.

In a related lawsuit, Saint-Gobain had been held liable by a federal court for locating time clocks in a place that prevented workers from receiving credit for time spent donning and doffing their gear. Kasten filed an anti-retaliation suit against Saint-Gobain, alleging that Saint-Gobain terminated him for orally complaining about the location of the time clocks.

The FLSA provides minimum wage, maximum hour, and overtime pay rules. It also forbids employers from discharging "any employee because such employee has filed any complaint alleging a violation of the statute. The text of the FLSA was insufficient for the Court to interpret whether the term "filed" included oral complaints. Thus, the Court considered other factors, including: (1) a narrow interpretation would undermine the FLSA's basic objective - prohibiting detrimental labor conditions; (2) the FLSA's requirement that an employer receive fair notice of a complaint can be met by oral and written complaints; (3) a broad reading of "filed" would be consistent with the interpretation of the National Labor Relations Act's anti-retaliation provision; and (4) the Secretary of Labor and EEOC have both concluded that "filed" includes both oral and written complaints.

Continue reading "Supreme Court Rules that Oral Complaints are Protected under the FLSA's Anti-Retaliation Provision " »

The U.S. Department of Labor has launched a campaign, "We Can Help," to encourage workers in certain industries, including construction, janitorial work, hotel/motel services, food services, and home health care, to notify the agency of suspected wage and hour law violations. The agency is relying on tips from worker advocacy groups, and has hired more than 250 additional investigators, a 33% increase, in an effort to increase pressure on employers. The effort is spearheaded by the agency's Wage and Hour division. The agency is also rolling out a publicity campaign that includes a new web site, an (800) number, and bilingual public-service announcements in Spanish and English. The ads feature activists like Dolores Huerta, co-founder of the United Farm Workers of America, and actor Jimmy Smits. In addition, the agency and other groups, such as the AFL-CIO, will distribute posters, fact sheets, and booklets on how to report complaints.

California employers are already facing an overwhelming amount of class action wage hour lawsuits. A Los Angeles Superior Court Judge tasked with handling complex class actions recently estimated that of the 790 class action lawsuits filed in California in 2009, 2/3 to 3/4 involved wage and hour claims.

Continue reading "U.S. Department of Labor Increases Wage Hour Pressure on Employers " »

In the 1990s cult classic, "Falling Down," a hapless engineer played by Michael Douglas finally snaps after getting caught in evening gridlock. Although most of us don't react to traffic in the same manner as Douglas' character, our daily commutes are nonetheless often marred by frustration. But what if your employer were required to compensate you for your commute to work?

Employers in California may soon be facing this reality when employees drive company vehicles in certain situations.

In Rutti v. Lojack Corp., No. 07-56599, the Ninth Circuit Court of Appeals held that the plaintiff, a Lojack technician, could seek compensation for time spent commuting to worksites in Lojack's vehicles.

Under California law, an employee may be considered "working" when the employee is merely subject to an employer's control. An employer must pay at least minimum wage for all "hours worked." California Industrial Welfare Commission's Wage Order 4-2001, § 2(K)

Continue reading "Commuting Time of California Employees Held Compensable In Certain Circumstances" »