2013 New Laws
||As the calendar flips to 2013, it's a good time to make sure you are up-to-date with the new laws, regulations, court cases, agency actions and local ordinances - many of which will impact California employers’ day-to-day operations and policies. These updates are organized by topic below to help you understand your responsibilities and learn how they will impact your business. |
Also, check the Required Posters and Pamphlets page to make sure you are compliant.
Legislation and Regulations
- Poster and Notice Updates - For 2013,there are mandatory updates to the PDL and FMLA/CFRA/PDL notices (Notice A and Notice B). These are mandatory updates based on recently amended PDL regulations which became effective December 30, 2012. There is also a mandatory update to the state discrimination and harassment notice due to a change in the definition of “sex” to include breastfeeding and a clarification of an employer’s religious accommodation obligations.
Effective January 1, 2013, there are also legally required updates to the EDD notice, the workers' compensation notice, plus all five pamphlets. Effective April 1, 2013, some businesses must post a model notice, relating to slavery and human trafficking, near the public entrance or another conspicuous location where the public and employees may view the notice. This notice will be made available on HRCalifornia after the Department of Justice has created it.
- Personal Social Media Accounts - Effective January 1, 2013, employers are prohibited from requiring or requesting applicants or employees to disclose information regarding their personal social media accounts.
- New Wage Informaton Rules for Temporary Service Employers - Effective July 1, 2013, most temporary service employers must comply with new wage information rules established by the Labor Commissioner.
- Hiring Reporting - Effective January 1, 2013, employers must report the hiring of any employee who previously worked for the employer, but has not been employed for at least 60 consecutive days.
- Discriminatory Questions - A 2012 case highlights the need for employers to avoid asking any questions that can be interpreted as discriminatory.
- Work Duties - The California Supreme Court held that work duties qualify as administrative when “directly related” to management policies or general business operations.
- "Personal Attendant" Exemption - A California court held that a caretaker for an elderly client does not fall outside the “personal attendant” exemption from overtime wages merely because the caretaker spends a few minutes each day on routine health related tasks.
- EDD Penalty for False Statements - Effective January 1, 2013, any employer, employee, officer or agent of an employer can be subject to a penalty for willfully making a false statement, representation or failing to report a material fact concerning a termination.
- EDD Reimbursement Denial - Effective October 22, 2013, EDD can deny you reimbursement for any overpayments made from your reserve account, if the overpayment resulted from your failure to respond to or provide adequate information to EDD.
- Health Plan Deductible - In 2013, the minimum annual health plan deductible required for health savings account (HSA) participants increased.
- Fixed Salary for Nonexempt Employees - Effective January 1, 2013, AB 2103 amends section 515 of the Labor Code to state that payment of a fixed salary to a nonexempt employee will be deemed to be payment only for the employee’s regular nonovertime hours, notwithstanding any private agreement or “explicit mutual wage agreement” to the contrary.
- Commission Wages, Agreements - A law, effective January 1, 2013, applies to employers who pay commission wages to employees and requires written commission agreements.
- Garnishing Wages - A new law regarding the amount of earnings that can be garnished goes into effect July 1, 2013.
- Temporary Service Employers - Effective July 1, 2013, temporary service employers must also include the rate of pay and the total hours worked for each temporary services assignment on the itemized wage statements.
- Definition of "Suffered an Injury" - Effective January 1, 2013, the Legislature amended the Labor Code to specifically define when an employee is considered to have “suffered an injury” with regard to employer provided wage statements, subjecting the employer to the penalty.
- Farm Labor Contractors - Effective January 1, 2013, farm labor contractors must be licensed by the state Labor Commissioner, post a wage surety bond based on annual payroll, and pay an annual license fee.
- "Commission Wages" Definition - A California Court of Appeal added to the definition of “commission wages.”
- Importance of Commission Agreements - A recent California case provides an example of why detailed commission agreements are so important.
- "Chargebacks" Against Commission Advances - A California Court of Appeal clarified an employer’s obligations under a commission compensation plan that permits “chargebacks” against commission advances.
- Split-Shift Pay - A California court has clarified that when a split-shift is worked, an employee is properly compensated if total pay for the day is at least minimum wage for all hours worked plus an additional hour at minimum wage.
- No Additional Pay for Regularly Scheduled Short Meetings - A California court ruled that employees who reported to work for regularly scheduled short meetings were not entitled to additional reporting time pay. The case is significant because it differs from the enforcement position of the DLSE, as discussed in its enforcement manual.
- Brinker Case Decision - The California Supreme Court finally released its long-awaited decision in Brinker Restaurant Corp. v. Superior Court.
- "Major Fraction" of Rest Breaks - For purposes of rest breaks, anything more than two hours is considered to be a “major fraction” of four hours.
- "Provide" Not "Ensure" Meal Break - The Brinker court clarified that an employer’s obligation is to “provide” the meal break, but not “ensure” that the employee does no work.
- Accurate Timekeeping - The Brinker court decision underscores the need for accurate timekeeping, including recording meal breaks.
- Rounding Timecard Entries - A California court recently concluded that, under California law, employers may round employee timecard entries to the nearest-tenth of an hour.
- San Jose Minimum Wage - Voters approved a measure establishing a minimum wage of $10 per hour for employees in the city of San Jose. The new minimum wage requirement goes into effect on March 11, 2013.
- San Francisco Minimum Wage - The San Francisco minimum wage increased to $10.55 per hour, effective January 1, 2013.
- Amended Pregnancy Regulations - Effective December 30, 2012, amended pregnancy regulations are in effect. These new amendments make significant changes to state law. This entire section has been updated to reflect the amended regulations.
- Religious Dicrimination and Reasonable Accommodation - A new law effective January 1, 2013, clarifies that California’s religious discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices.
- Breastfeeding Discrimination - Effective January 1, 2013, employers are clearly prohibited from discriminating against employees or job applicants because of breastfeeding and related medical conditions.
- FEHC - A new law, effective January 1, 2013, eliminates the Fair Employment and Housing Commission (FEHC) and also eliminates administrative adjudication of Fair Employment and Housing Administration (FEHA) claims.
- DFEH Civil Action - Effective January 1, 2013, the Department of Fair Employment and Housing may bring a civil action directly to court if the agency determines an employer has failed to eliminate an unlawful employment practice.
- National Origin Lawsuit - A California court of appeal ruled that a California employee may pursue his lawsuit for national origin harassment and discrimination, based on comments made by co-workers following a terrorist attack overseas.
- FEHC Eliminated - The Fair Employment and Housing Commission was eliminated effective January 1, 2013. FEHA claims will no longer be decided by an administrative agency.
- Prevention Defense - If sexual harassment policies and training are inadequate or never fully implemented, a company cannot rely on its preventative actions to avoid liability.
- Franchisor Sexual Harassment Liability - A recent decision from a California court demonstrates that franchisor sexual harassment liability can exist if the franchisor involves itself in control over the franchisee’s business.
- False Harassment Claims - In a 2012 case, a California court ruled that an employee who fabricates a sexual harassment claim can be disciplined by the employer.
- Accessibility Abuse Claims - The California Legislature passed Senate Bill 1186 in 2012 in response to the claims of accessibility abuse. This law went into effect immediately upon passage.
- Disability Discrimination and Accommodation - California approved amended disability discrimination and accommodation regulations. These regulations went into effect on December 31, 2012. These regulations substantively change disability law in California and this section has been updated to reflect those legal changes.
- Medical Marijuana and the ADA - In a 2012 case involving medical marijuana and the ADA, the Ninth Circuit Court of Appeals reached a similar conclusion as previous courts.
- ADA and Attendance - The Ninth Circuit Court of Appeals ruled that the Americans with Disabilities Act (ADA) does not obligate a hospital to reasonably accommodate a neonatal nurse’s request to “opt out” of its attendance policy.
- Alleged Firing for Being Morbidly Obese - The federal Equal Employment Opportunity Commission (EEOC) reached a settlement with a military vehicle manufacturing company that allegedly fired an employee because he was morbidly obese.
- At-Will Relationships - In 2012, the National Labor Relations Board (NLRB) challenged an employee handbook acknowledgment form that stated the at-will relationship could not be modified in any way.
- Workers' Compensation Reform - In 2012, workers’ compensation reform legislation (SB 863) was passed by the Legislature and signed by the governor. Some of the legislative reforms take effect January 1, 2013, but many of the laws require administrative/regulatory action before implementation.
- Timing of the Reform Measures - There are legally required updates to the Workers' Compensation notices and Pamphlets that reflect new workers' compensation reforms that have been approved by the Division of Workers' Compensation. Implementation of workers' compensation reform measures will continue during 2013. As a result, there are potential additional mandatory changes after January 1, 2013.
- Pre-Designation of a Physician - As part of the workers’ compensation reforms (SB 863) passed in 2012, the right to predesignation was expanded effective January 1, 2013.
- Personal Chiropractor Designation - Effective January 1, 2013, a personal chiropractor may be designated as the treating physician for a maximum of 24 visits per injury.
- Elimination of Return to Work Incentives - Workers’ compensation reform passed in 2012 (SB 863) eliminated return to work incentives for all dates of injuries on or after January 1, 2013.
- Supplemental Job Displacement Benefits - Workers’ compensation reform passed in 2012 (SB 863) also impacts supplemental job displacement benefits for employees injured on or after January 1, 2013.
- Personnel Files Inspection - A new law effective in 2013 greatly expands California law relating to inspection of personnel files. CalChamber has also created a sample form relating to this law.
- Payroll "Copy" Definition - The Labor Code now defines a “copy” for purposes of payroll records.
- Personal Social Media Accounts and Hiring and Discipline - Effective January 1, 2013, employers are prohibited from requiring or requesting applicants or employees to disclose information regarding their personal social media accounts.
- Facebook and Employee Discipline - The NLRB decided a case against a luxury auto dealership that fired an employee after the employee posted Facebook pictures of an accident at an adjacent car dealership.
- EEOC Issues Enforcement Guidance - The Equal Employment Opportunity Commission issued its “Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions.”
- NLRA and Social Media Policies and Privacy - Certain sections of the National Labor Relations Act (NLRA) may affect employers’ social media policies, even in nonunion settings.
- Secret Ballot Elections - In 2012, a federal district court held that a new rule, relating to secret ballot elections, was invalid because the NLRB did not follow proper voting procedures when it approved the rule.
- NLRB Expands Protection - In 2012, the National Labor Relations Board (NLRB) continued to expand the protection it offers to employees under Section 7 and Section 8 of the National Labor Relations Act NLRA.