New California Employment Laws

Employers with California operations and employees should to take note of these new employment laws taking effect January 1, 2013 (unless otherwise noted):

• The law now prohibits requiring or requesting an employee or applicant to: 1) disclose a personal social media username or password; 2) access personal social media in the employer’s presence; or 3) divulge any personal social media. Limited exceptions exist when the information is “reasonably believed to be relevant” to a misconduct investigation and for accessing an employer-issued electronic device.

• Religious dress and grooming practices are now part of the definition of religious discrimination. The new law also provides that accommodations of religious dress and grooming practices that involve segregating the individual from the public or other employees are not reasonable. And, the degree of hardship an employer must establish to deny a religious accommodation has been raised from “de minimis harm” to “significant difficulty or expense.” This takes effect November 1, 2013.

• Amendments to labor code sections governing employee access to personnel files and payroll records require employers to create a personnel file request form, provide a copy of the file at the employee’s cost, respond to requests from former employees, refrain from reducing pay due to travel time in some circumstances when an employee’s records are not available at the location where the employee normally works, and maintain copies of former employees’ personnel records for at least three years after the employment ends. Employers may redact names of other non-supervisory persons contained in an employee’s personnel records. Penalties were already available for an employer’s failure to include all required pay stub content, if an employee could show injury as a result. The new law clarifies that an employer’s failure to provide the information satisfies the injury requirement.

• The Fair Employment & Housing Act’s definition of “sex” now includes breastfeeding or medical conditions relating to breastfeeding as categories protected from discrimination.

• The legislature took the first step toward creating the only state-run retirement program for the private sector in the nation. A companion bill pushed through at the last minute requires a future authorizing vote by the legislature before the plan may begin enrolling employees. The new law would require every private sector employer “that has five or more employees and that satisfies the requirements to establish or participate in a payroll deposit retirement savings arrangement” to automatically impose a three percent deduction on employee wages (from which individual employees could opt out) for contribution into a trust.

• The Fair Employment & Housing Commission has been eliminated and most of its powers and duties transferred to the Department of Fair Employment & Housing (DFEH). The DFEH has the power to bring civil actions directly to court (after a mandatory dispute resolution attempt) on behalf of employees alleging discrimination, harassment, or retaliation, and includes a statutory right to collect attorneys’ fees.

Significantly, Governor Brown vetoed a bill that would have created severe monetary penalties for violations of the Cal-OSHA heat-illness prevention standard. Violations of the heat-illness prevention standard will continue to be addressed through the administrative process.