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February 6, 2012 | Law Alert

New Employment Laws for 2012

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California employers know each New Year brings a host of new laws and regulations with which they must become familiar and compliant.  2012 is no different.  Below is a brief summary of the key new employment laws covering issues like credit checks, gender expression, genetic discrimination, health coverage during leaves of absence, independent contractors, and others.

Credit Checks

A.B. 22 prohibits employers, other than financial institutions, from obtaining consumer credit reports on applicants or employees except in specified circumstances. The law does not bar employers from conducting criminal background checks, checking references, or doing credit checks where required by law.  The law also provides for a number of other exceptions to the credit check prohibition. For example, credit checks are permissible if the applicant or employee (a) seeks a manager level job covered by the executive exemption from overtime, (b) will be a named signatory on the employer’s bank or credit card account, or (c) will have the authority to transfer money or enter into financial contracts on the employer’s behalf.

Gender Expression

A.B. 887 revises the Fair Employment and Housing Act (FEHA) to add “gender identity” and “gender expression” to the list of protected characteristics making discrimination on either basis prohibited.  Gender expression is defined as a “person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.” The law also expressly requires employer dress codes to permit employees to dress consistently with both their gender identity and gender expression.

Genetic Discrimination

S.B. 559 amends the FEHA and Unruh Civil Rights Act to expressly prohibit discrimination against employees on the basis of genetic information, which includes information about the genetic tests of an individual or family member, or the manifestation of a disease or disorder in family members of the individual.  This new law brings California in synch with the federal GINA (the Genetic Information Nondiscrimination Act).  Existing California law already barred employers from subjecting applicants or employees to genetic testing or from discriminating based on genetic characteristics.

Group Health Coverage for Employees on Pregnancy Disability Leave

S.B. 299 requires employers with five or more employees to maintain group health coverage for employees on pregnancy disability leave for up to the full four-month duration of the leave.  Prior law only required employers to provide benefits to the same extent they did so for other temporary disability leaves, which usually meant a 12-week limit on benefits because that is what is required under the FMLA.

Willful Misclassification of Independent Contractors

S.B. 459 imposes a fine of up to $25,000 on employers that “willfully” misclassify a worker as an independent contractor.  “Willful misclassification” means “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”  The law also imposes liability on non-attorney consultants who knowingly advise employers to treat someone as an independent contractor to avoid employee status.  If the Labor and Workforce Development Agency (LWDA) or a court determines that there has been a violation of this law, the employer will be required also to post a notice inviting any worker who believes they are misclassified to contact the LWDA.

Organ and Bone Marrow Donor Leave

S.B. 272 clarifies the organ/bone marrow donor paid leave law that took effect in 2011.  The law now specifies that the paid leave periods under the existing law (30 days for organ donors and five days for bone marrow donors) are measured in business days and that employers must maintain an employee’s health benefits during the leave.

Wage Theft Prevention Act – Notice to Employees Regarding Pay

Labor Code Section 2810.5 now requires employers to provide written notice to an employee at the time of hire of details regarding the employee’s pay.  The new law requires the Labor Commissioner to prepare a model notice form for employers to use, which can be found on the website of the Division of Labor Standards Enforcement.

Practice Area: Employment
Attorney: Douglas J. Melton

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