Beginning January 1, 2012 California employers will be required to continue existing group health coverage for an employee taking leave under California’s Pregnancy Disability Leave Law for the duration of the leave at the same level and under the same conditions as would have been provided if the employee had not been on leave.
AB 592 clearly articulates that it is unlawful to “interfere with, restrain or deny the exercise or attempt to exercise” rights to a leave of absence under the California Family Rights Act (CFRA) or Pregnancy Disability Leave Law.
The Gender Non-Discrimination Act recently signed into law by Governor Brown explicitly adds “gender identity” and “gender expression” as protected classifications in California’s anti-discrimination laws. These characteristics are currently included within the definition of gender in California; however, this law removes any uncertainly by providing specific enumeration of gender identity and gender expression as protected categories.
Beginning January 1, 2011 section 226.8 of the California Labor Code creates new and very serious penalties for misclassification of workers as independent contractors. The law makes “willful” misclassification of workers as independent contractors by “any person or employer” unlawful. It further allows the Labor and Workforce Development Agency to assess civil penalties of $5000 to $15,000 per violation, in addition to other penalties or fines permitted by law. Employers found to have engaged in a pattern and practice of violations are subject to civil penalties of $10,000 to $25,0000 per violation. The law requires violators to prominently post a notice on the employer’s website advising employees and the general public of the violation. Non-lawyers who advise an employer to misclassify a worker are subject to joint and several liability with the employer.
While the bill does not appear to create a private right of action, claims will likely be asserted under the California Private Attorneys General Act. Now is certainly the time to evaluate whether you independent contractors are classified correctly!
Beginning January 1, 2011 employers in California will no longer be permitted to obtain and use pre-employment credit checks except in limited circumstances. The bill prohibits employers or prospective employers from obtaining a consumer credit reports for employment purposes unless the position of the person for whom the report is sought is one of the following:
- A managerial position (defined as a position which qualifies for the executive exemption for overtime);
- A position in the state Department of Justice;
- A sworn peace officer or other law enforcement position;
- A position for which the information contained in the report is required by law to be disclosed or obtained;
- A position that involves regular access to individual’s bank or credit card account information, Social Security number and date of birth for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment;
- A position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf;
- A position that involves access to confidential or proprietary information; or
- A position that involves regular access to $10,000 or more of cash.
In addition, AB 22 requires written notice informing the person for whom a consumer credit report is sought for employment purposes of the specific reason for obtaining the report. The credit report must be provided free of charge to the employee and if employment is denied based on the information provided, the employer must provide the name and address of the credit reporting agency.
Beginning January 1, 2011 private employers in California will be required to provide specific written notifications to all non-exempt employees during the hiring process. The notification requirement does not apply to employees covered by a collective bargaining agreement. The information must be provided in the language the employer normally uses to communicate employment-related information to the employee.
The information includes:
- The employee’s rate or rates of pay and basis thereof, whether paid by the 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 in accordance with the requirements of the Labor 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.
If an employer makes changes to the information above the employer must provide notice of the changes within seven days. Changes may be communicated through a written amendment, a new notice, or on the employee’s next pay statement.
The Labor Commissioner is currently working on preparing employer guidance to comply with the Act and a required notice template. It is anticipated that the documentation will be posted on the Department of Industrial Relations’ website at www.dir.ca.gov/dlse by mid-December, 2011.
