Monthly Archives: October 2012

Dear Employees: Vote for Our Candidate, or Else . . . ?

In the news this week was a story that candidate Mitt Romney suggested to small-business owners that they might want to encourage their employees to vote for him.

Here in California, I generally caution all employers against suggesting a position on a candidate or a proposition.  The reason is that while employers are free to express their opinions, they cannot demote, suspend, or terminate an employee for lawful conduct, during nonworking hours, away from the employer’s premises.  “Lawful conduct” includes voting in an election – for your candidate or their candidate.  If an employee is disciplined or terminated shortly after an election in which the employer took a strong, public position with employees, the employer may have given the former employee the basis for a lawsuit.

California law also bars termination of employees for engaging in political activities, becoming political candidates, or following or not following a particular course or line of political action, as long as it’s not advocacy of violent revolution.

And remember, California employees can take protected time off of work, if necessary, to vote in a statewide election.

Trick or Treat, Part 2 – More on California’s New Employment Laws

In my last post, I talked about the “noisier” new laws that California employers need to be prepared for at the start of the year.   Here are some others to keep in mind – and a few of the noisiest bills that didn’t make the cut:

Wage Statements.  Along with everything else you need to do to get ready for 2013, make sure that your payroll department or service is complying with California’s rules for wage statements.  Last year, a court found that if some information was missing from a wage statement, it wasn’t that big of a deal – the employee wasn’t really “injured” and a penalty wasn’t appropriate.  Under the new law, an employee is definitely injured if the wage statement is incorrect.  So, make sure that an employee can “promptly and easily” determine from the wage statement the gross wages earned during the pay period, the deductions taken, the employer’s name and address, and identifying information of the employee (name, last four digits of the SSN or other ID number).

Salaries for Nonexempt Workers.   If you have a contract with a nonexempt employee to pay her a salary or fixed amount for “all hours worked,” that amount will be used to determine the base or regular rate for overtime pay, no matter what the agreement says about an overtime rate.

Protected Status for Breastfeeding Employees.  The Fair Employment and Housing Act (FEHA)  now specifically states that employers can’t discriminate against employees based on their breastfeeding status.  This was already the law, but now FEHA states that  the term “sex” also includes breastfeeding or medical conditions related to breastfeeding.

Written Commission Agreements.  This is a reminder about a law signed last year with a delayed effective date.  By January 1, 2013, all employers who pay California employees on a commission basis must have written, signed commission agreements.  The agreement must set forth the method by which commissions are computed and paid and must be signed by both the employer and employee.  This is a great opportunity to define when a commission is actually “earned,” since when it is earned it becomes a wage that cannot be forfeited.

What bills got “stuck on Capitol hill” (or California’s version of that)? There are three big ones.

AB 1450 would have prohibited discrimination in hiring based on an applicant’s unemployed status – in other words, no “help wanted” ads that require the applicant be currently employed.   Governor Brown vetoed the bill, saying it would cause unnecessary confusion.

AB 889 would have required the state to create overtime, meal and rest break, and other working condition rules for domestic workers like nannies, elder care providers and maids.  The governor vetoed the bill, saying that the issue needs more study.

AB 2039 got stuck in Committee.   The Bill would have expanded the California Family Rights Act by  (1) permitting an employee to take protected leave to care for his independent adult child suffering from a serious health condition, (2) expanding the definition of parent to include a “parent-in-law”, and (3) permitting an employee to also take leave to care for a seriously ill grandparent, sibling, grandchild, or domestic partner.

There are a lot of other new laws.  California’s State Senate and Assembly introduced 1,899 bills this year. 996 bills were sent to Governor Brown, who signed 876 and vetoed 120. I’ve talked about less than 10.  If you were hoping to read about a new employment law that I didn’t talk about, let me know!  Email me at

Trick or Treat! New Laws for California Employers (some of them)

Coming soon . . . Well . . .not really soon – but on January 1, 2013!  While it is not even Halloween, California employers need to be aware of some new rules that will take effect in a few short months.

There are more, of course, but below I briefly discuss the ones creating the most noise. By “noise” I mean the ones talked  about on KCBS, or NPR, on the internet and in the break room. These are the ones that your employees know about and they expect demand that you comply:

Social Media Passwords.  If you have completely ignored the advice of almost every lawyer I know  and have required your employees and applicants to turn over their social media passwords, now you really need to stop.  Starting January 1, 2013, an employer can’t require or request an employee or applicant for his or her username or password to access personal social media.  There are exceptions.  One is if the employer thinks the disclosure is relevant to an investigation of employee misconduct or illegal acts by an employee.  Another is if the employer is using the information to access an electronic device the employer issued.  The exceptions should not be utilized without consulting with your lawyer.

Religious Accommodation.  The vague rules governing religious accommodation in employment were modified.  California employees are protected from discrimination based on “religion,” “religious observance,” and “religious belief” and a new law clarifies that these protections include religious dress and grooming practices.  Employees are protected in their wearing of religious clothing, head or face coverings, jewelry, and artifacts.  The new law also specifically forbids segregating an employee from the public (or other employees) as a reasonable accommodation to his or her religious dress or grooming.

For religious matters, employers have historically had the ability to assert that some accommodations could not be made as they were an undue burden.  That somewhat vague standard has been refined so that it is similar to the “undue burden” standard that guides us in disability accommodation:  to claim that an accommodation would be an undue burden, an employer must demonstrate significant difficulty or expense.

Personnel Files.  Employers must review their personnel file maintenance and inspection procedures.  A new bill eliminates conflicting interpretations of the rules regarding current and former employees’ rights to inspect and copy their files.  The bill also places additional administrative requirements on employers.

I’ll talk about the other new laws in later posts so you can be ready for the New Year.  First, though, I’m going to pick out my Halloween costume.

Upcoming Presentation (11/8 in Monterey): Hot Topics In HR

On November 8, 2012 at 11:00 a.m., I’m going to be at the Bayonet Blackhorse Country Club in Monterey.  I am joining forces with Melissa Irwin, SPHR-CA with TPO Human Resource Management to talk about Top HR issues that our clients grapple with the most and to provide practical suggestions participants can use immediately.  We’ll both take questions from the audience (gulp) on any issues you bring, too!

This should be a great event – and I’m excited to be a part of CCHRA’s fall line-up!

Here’s a link with the details:

Upcoming presentation (10/17 in Modesto): Leaves of Absence in California

On October 17, 2012, I’ll be giving a program called “Leaves of Absence in California: why cases are brought, what you can do to prevent them, and what changes are coming to the rules”

The program starts at about 2:30, but it is a part of a whole day of great HR topics at the Central Valley Human Resources Management Association’s 2012 Fall Workshop.  Here’s a link with all the details: