News / Resources

Now that the new year has begun, please keep in mind the following changes to California employment laws.

Please contact any member of our Employment & Labor Practice Team with questions regarding how any of these new laws may impact your business.

Section 12810.3 of the Vehicle Code was amended to prohibit text-based communication while driving. Specifically, a person may not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication, including a text message, instant message, or electronic mail. A violation of this law is considered an infraction punishable by a base fine of twenty dollars ($20) for a first offense and fifty dollars ($50) for each subsequent offense.

Employers should update existing policies to ensure compliance with this change in the law.

CALIFORNIA SUPREME COURT TO DECIDE WHETHER EMPLOYERS MUST ENSURE THAT MEAL BREAKS ARE TAKEN

Giving clarity to the rules governing meal breaks, the California Court of Appeal, in Brinker v. Superior Court, 165 Cal. App. 4th 25 (2008), held that while California employers cannot impede, discourage or dissuade employees from taking meal breaks, they need only provide, not ensure, that such breaks are taken. The California Supreme Court subsequently granted the plaintiffs’ petition to review this decision. Consequently, the Court of Appeal’s decision in Brinker cannot be relied upon and uncertainty concerning employer obligations with respect to meal breaks will remain until the California Supreme Court issues its final ruling.

2009 NEW LAW: MINIMUM MONTHLY OR ANNUAL SALARIES FOR EXEMPT COMPUTER PROFESSIONALS

An amendment to California Labor Code section 515.5 allows employers to pay computer professionals who are exempt from overtime a monthly or annual salary (whereas they previously needed to receive a minimum hourly rate). The amendment raises the minimum hourly rate to $37.94 and sets the minimum monthly and annual salary exemptions at $6,587.50 and $79,050.00, respectively.

California employers should review job descriptions of all employees classified as computer professionals to ensure they earn at least the minimum wage and/or salary for 2009. California employers should also ensure computer professionals who are properly classified as exempt (through job duties and hourly wage) get required meal and rest breaks, as they are only exempt from overtime.

2009 NEW LAW: REPORTING OF WORKPLACE INJURIES

An amendment to California Labor Code section 6409.1 changes the reporting of work-related injuries and illnesses. Employers currently must file a form 5020 with the Division of Labor Statistics and Research (DLSR) within five days of an incident. Once new regulations are finalized, insured employers must file a form to be prescribed by the Division of Workers’ Compensation (DWC) with the DWC, and self-insured employers must use a new, yet to be created, electronic form within the time specified by the DWC.

Note: the bill specifies that regulations must be created to implement these changes, which will not go into effect until the regulations are finalized.

California employers should talk to their insurance carriers to ensure they use the most up-to-date forms.

2009 NEW LAW: POLITICAL SPEECH

In July 2008, the General Counsel of the National Labor Relations Board (NLRB) issued guidelines to employers concerning employee participation in political advocacy activities and providing guidance to employers as to when disciplinary actions for these activities may be appropriate. The guidelines provide that:

Non-disruptive political advocacy for or against a specific issue, related to a specifically identified employment concern that takes place during employees’ own time and in non-work areas, is protected.

On-duty political advocacy for or against a specific issue, related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules.

Leaving or stopping work to engage in political advocacy for or against a specific issue, related to a specifically identified employment concern may be subject to restrictions imposed by lawful and neutrally-applied work rules.

When absences to attend political rallies or demonstrations during scheduled work hours are treated in the same manner as any other unexcused absence, the employee’s conduct should not be considered protected under the National Labor Relations Act or by the NLRB.

California employers are strongly encouraged to consistently apply and enforce all workplace rules and disciplinary actions, especially relating to attendance.

2009 NEW LAW: PASSPORT CARDS VALID FOR IDENTIFICATION ON I-9

The new U.S. Passport Card may now be used as a “List A” document in the Employment Eligibility Verification form (I-9) process. The Passport Card may be presented by newly hired employees to verify identity and show work authorized status when completing the Form I-9.

California employers should ensure that they are familiar with all acceptable documents for proof of eligibility to work in the United States, and should not require employees to present specific forms of identification when filling out an I-9 form. California employers should also maintain I-9 forms in a separate file for easy reference.

2009 NEW LAW: AMENDMENT NULLIFIES RELEASES BASED ON EMPLOYEES’ ACKNOWLEDGMENT OF FALSE TIME RECORDS

California Labor Code section 206.5 was amended to render null and void the execution of any release on account of wages due. Employers who violate this law are guilty of a misdemeanor. The California Labor Commissioner may also issue citations pursuant to California Labor Code section 1197.1 for nonpayment of wages for overtime work. According to its supporters, the amendment targets unscrupulous employers who withhold pay until an employee acknowledges false time records.

2009 NEW LAW: TEMPORARY SERVICES EMPLOYEES TO BE PAID WEEKLY AND DAY LABOR WORKERS TO BE PAID DAILY

Section 201.3 was added to the Labor Code to address the payment of wages to day labor workers and to employees of temporary services employers, who may be employed for an uncertain or unpredictable duration at locations distant from the employer’s principal administrative office.

The statute provides that wages for employees of temporary services employers must be paid weekly, while day labor workers who complete a daily work assignment must be paid at the end of each day. Failure to properly compensate these employees can result in civil and criminal penalties.

California temporary agencies should update payroll practices in light of this amendment and maintain consistent communication with your clients to ensure you know the correct hours your employees work.

2009 NEW LAW: MANDATORY SAN FRANCISCO COMMUTER BENEFITS

San Francisco employers with 20 or more employees (whether full time, part time, or temporary), who work at least 10 hours per week, including those who perform work outside the geographic boundaries of San Francisco, must offer one of the following options: (1) a pre-tax election of a maximum of $115 per month to purchase transit passes or vanpool rides; (2) an employer-provided transportation pass (or reimbursement for one) equal in value to $45 (or more) per month; or (3) an employer provided shuttle service.

Failure to comply with this program may result in a fine of $100 for a first violation, $200 for a second violation within the same year and $500 for each additional violation within the same year.

ERISA DOES NOT PREEMPT SAN FRANCISCO HEALTH CARE ORDINANCE

On September 30, 2008, the United States Court of Appeal for the Ninth Circuit Court ruled that the San Francisco Health Care Security Ordinance and the corresponding Health Access Plan were not preempted by the Employee Retirement Income Security Act (ERISA).

San Francisco’s Health Care Security Ordinance, enacted by the city in 2006, mandates that all private employers with more than 20 employees pay an assigned amount of money toward employee healthcare or pay the city a fee based on the number of employees and hours worked.

2009 NEW LAW: OVERTIME EXEMPTION FOR PHYSICIANS PAID ON HOURLY BASIS

A licensed physician or surgeon who is primarily engaged in performing duties for which licensure is required is exempt from overtime if he/she is paid at least the minimum hourly rate set annually by the state. Effective January 1, 2009, the minimum hourly rate increased from $65.59 to $69.13.

This exemption does not apply to employees in medical internships or resident programs, physician employees covered by collective bargaining agreements or veterinarians.

CALIFORNIA EMPLOYERS CAN ADDRESS STATUTORY WAGE AND HOUR CLAIMS WITHOUT THE PROSPECT OF PUNITIVE DAMAGES AWARDS

Confronted with the question of whether failure to pay regular and overtime wages, failure to pay minimum wage, and pay stub irregularities could support an award for punitive damages, the California Court of Appeal, in Brewer v. Premier Golf Properties, LP, held that such wage and hour statutory violations could not support a punitive damages award. This decision eliminates uncertainty as to the scope of available remedies in wage and hour cases—at least as the uncertainty pertains to possible punitive damages. Unless the California Supreme Court grants a petition for review, this decision will mean that California employers can address statutory wage and hour claims without the prospect of punitive damages awards.

UPDATED WORKPLACE POSTER

California employers should obtain new workplace posters reflecting various changes in California and federal employment laws, including EEO, EDD and FMLA notices, which are on the 2009 California Employment Notices Poster.

Baker & Hostetler LLP publications are intended to inform our clients and other friends of the Firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience. [Florida Rule 4-7.2(d)] © 2009 Baker & Hostetler LLP