Pub. 1 2013 Issue 3

Dealer Impact: Prohibits employers from requiring or requesting job applicants or current employees to divulge personal social media content or login information, or to access personal social media content in the employer’s presence. Dealers should update the social media policies of their employment handbooks to ensure that this is addressed. Expansion of Employment Discrimination Laws California’s strict anti-discrimination laws are expanded and refined on a regular basis through new legislation. Last year, the legislature expanded laws related to discrimination on the basis of religion and sex. Religious Discrimination – AB 1964 expands the existing definition of“religion”, for purposes of discrimination, to prohibit discrimination on the basis of religious dress or grooming requirements. The definition of “religious dress” specifically includes the carrying or wearing of jewelry, artifacts, and facial and head coverings. “Religious grooming”specifically includes all forms of facial, head, and body hair. Employers are required to make “reasonable accommodation” to employees practicing their religious beliefs. The bill clarifies that such accommodation is not reasonable if it involves segregating the employee from other employees or the public. SexDiscrimination – Current lawprohibits employment discrimination on the basis of“sex,”which includes pregnancy and childbirth conditions. AB 2386 clarifies that breastfeeding and related medical conditions are also included in this definition of“sex”. The bill states that this change is declarative of existing law. Dealer Impact: These bills expand upon existing protections against discrimination on the basis of religion and sex. Dealers should be sure to update their employment handbooks and provide training as appropriate to accommodate newly-protected people and activities. Employee Access to Personnel Files Current law requires employers to make personnel records related to performance or employment grievances available to current employees for inspection. AB 2674 requires employers to allow current and former employees (or their representatives) to inspect and/or copy the employ- ment records within 30 days of a written request. The bill also requires employers to retain personnel files for at least three years following termination of employment. Dealer Impact: Dealers and other employers will be required to provide access to personnel files to current and previous employees for inspection and/or copies, within 30 days of written request. Employers are also required to retain personnel files for at least three years post-termination. Wage Statement Violation Remedies Existing laws have required employers to provide specific information on wage statements (paycheck stubs), and has long allowed employees to sue for damages and penalties if they suffer injury as a result of a “knowing and intentional” failure by an employer to comply with these requirements. SB 1255 was passed to clarify when employees are deemed to suffer injury, andwhen employer violations are knowing and intentional. This bill provides that an employee is deemed to suffer injury if: The employee is not provided with a wage statement; or The employee is provided with an inaccurate or incomplete wage statement and a reasonable person cannot “promptly and easily” determine from the wage statement alone any of the following: o Gross or net wages; o Total hours worked (except for exempt salaried employees); o (For piece-rate employees) the number of piece-rate units earned and any applicable piece rate; o Inclusive dates of the pay period; o All applicable hourly rates in effect the corresponding number of hours worked at each hourly rate. o Which deductions from wages were made (consistent with some limited aggregation ability) o Name and address of employer; o Name and address of employee and last four digits of SSN or employee ID number if no SSN The bill also clarifies that an employer’s violation of the wage statement requirements is not“knowing and intentional”if the violation is an isolated and unintentional payroll error due to a clerical or inadvertent mistake. A fact finder reviewing for compliance with the new lawmay consider, as a relevant factor, whether the employer adopted and followed a compliant set of policies, procedures, and practices prior to an alleged violation. Dealer Impact: This bill clarifies key factors that must be established in suing for wage statement violations. Dealers should consult with their employment attorneys to design and implement a standard policy to ensure that wage statements contain the required information and are timely provided to employees. Summariesofadditional lawscanbefound inthe2012CNCDACalifornia Legislative Summary, available at www.cncda.org , under Publications (login required). For more information on any of these new laws, feel free to contact JonathanMorrison, CNCDA’s Director of Legal andRegulatory Affairs at (916) 441-2599.