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January 31, 2013 | Law Alert

Five New Employment Laws Likely to Change the Way You Do Business in 2013

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The New Year brought a variety of new laws impacting California employers. Here is a summary of five new laws likely to change the way you do business in 2013.

Employers Must Now Accommodate Religious Dress and Grooming Practices

AB 1964 amends the definition of “religious creed” in California’s Fair Employment and Housing Act (“FEHA”) to include “religious dress practice” and “religious grooming practice.” Religious dress practice includes wearing/carrying religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an employee’s observance of his/her religious creed. Religious grooming practice includes head, facial and body hair grooming that is part of an employee’s observance of his/her religious creed. Employers must now permit such religious dress and grooming practices and should amend any policies that appear to conflict with this obligation.

Employers Must Now Provide Copies of Personnel Files to Employees and Former Employees Who Make a Written Request

Employees always had the right to inspect their personnel files. AB 2674 expands that right in two ways: (1) it applies to former as well as current employees; and (2) it requires employers to provide a copy of the file rather than simply an opportunity to inspect it. Employees must make their requests in writing and employers have 30 days to comply.

Breast Feeding Is Now Specifically Protected Under the Fair Employment and Housing Act

Under the Labor Code, employers were already obligated to accommodate lactating mothers with break time and a private area for expressing milk. Now, AB 2386 expands the FEHA definition of “sex” to include “breastfeeding or medical conditions related to breastfeeding.” Thus, employers may not discriminate against employees on the basis of their breastfeeding or any related medical condition.

Employers May No Longer Enter Into Contracts Making Employees “Salaried Nonexempt”

All California employers know that the Labor Code requires them to pay overtime for work in excess of 8 hours in a day or 40 hours in a week unless an employee qualifies for one of the three exemptions (professional, administrative or executive). In 2011, however, a California court of appeal held that California employers could enter into written contracts with nonexempt employees for a fixed salary that included a certain number of overtime hours built in at a time-and-a-half rate. This short-lived classification was dubbed “salaried nonexempt” status. AB 2103 eliminates this practice and provides that, when an employer pays a nonexempt employee a fixed salary, that salary shall constitute compensation for 8 hours of work a day, 40 hours per week, notwithstanding any agreement to the contrary.

Employers May No Longer Demand Employees’/Applicants’ Social Media Passwords

AB 1844 prohibits employers from requesting user names, passwords or other information regarding social media accounts from employees or applicants. The law is intended to end employers’ efforts to access employees’/applicants’ social media activities for the purpose of determining their suitability for employment. Importantly, the new law does not prohibit an employer from inquiring into an employee’s use of social media in the context of investigations into workplace misconduct. It also permits employers to demand employees’ passwords and other information necessary to access employer-owned equipment and accounts such as work voice mail and email. (Employers should also remember that AB 1844 follows enforcement efforts by the National Labor Relations Board against employers whose social media policies may be deemed to chill the rights of employees, unionized or not, to engage in protected concerted activity.)

Contact our employment law team for further information about these new laws and how they may impact your business.

Douglas Melton

Kathleen Ewins

Ari Baruth

Shane Cahill

Lindsay Jester

Kate Kimberlin

Jonathan Rizzardi

Noah Rosenthal


Practice Area: Employment
Attorney: Douglas J. Melton, Jonathan R. Rizzardi, Kathleen M. Ewins, Lindsay A. Jester

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