The beginning of the year is a good time for all employers to review their policies and practices to be sure they comply with any new legal requirements and to consider necessary changes. Here’s a labor law checklist to help employers comply this year.
□ Review and Update Employee Handbooks
Employers who have not recently updated their handbooks should review them now to be sure they have included changes that took place in the past year, such as paid family leave benefits. Employers should also update their handbooks in light of the numerous new rules recently implemented for the 2014 year, including the various policies impacted by the new domestic partners’ laws.
□ Review All Policies and Practices to Ensure Compliance with Labor
□ Laws – Know Which Laws You Must Comply With
While the last few years have shown reform to the “sue your boss” law, employees who meet the law’s administrative and procedural requirements can still sue their employers for damages for Labor Code violations. Consider hiring labor and employment counsel to audit all policies and practices for Labor Code Compliance.
Depending on the number of employees that you have – either 5 or more, 15 or more or 50 or more dictates which laws you must follow. Also which industry you are in plays an important role in the determination of various rules and regulations as well. Common questions that arise: Do I count owners and officers as part of the number of employees? What if I have 5 employees in Northern California and 10 in Southern California? How do I count employees? Average throughout the year? Highest quarter? These are all questions that should be discussed with your employment counsel.
□ Wages – New for 2013
The Supreme Court in 2012 issued an important ruling regarding meal and rest breaks. Make sure your meal and rest break policy clearly communicates to employees that you have the obligation to provide meal and rest breaks. In light of this recent legislation make sure you understand and update your policies the obligation and timing of meal periods and rest breaks, recording such, and the training of supervisors to ensure compliance. I do not recommend implementing a waiver of meal break without the advice and drafting of such by counsel.
Ensure your company is keeping accurate records of hours worked by nonexempt employees to comply with applicable state and federal laws. Without accurate timekeeping, including recording meal breaks, an employer faces potential liability and without a strong defense. It is crucial that the employer maintain records which show an employee was provided an uninterrupted 30 minute meal period before the end of the fifth hour. Timekeeping records should reflect that the meal period was provided to the employee by the correct time, regardless of whether the employee voluntarily chose to perform work during the meal period. If the employee voluntarily works during a meal period, you will owe the employee straight time pay if you knew or reasonably should have known of the work.
The law does permit the payment of a final check by automatic payroll deposit, provided the employee has previously authorized automatic payroll deposits. You must still comply with the laws relating to timely payment of final wages. Make sure you understand these laws.
□ Leaves of Absence – Know the Regulatory Changes That Are Effective March 8, 2013
You are subject to the federal Family Medical Leave Act and California Family Rights Act if your company has employed 50 or more individuals for each working day during each of 20 or more calendar workweeks in the current or preceding calendar year. It is a mandatory policy and you are required to provide a general notice explaining the provisions of the FMLA.
Where differences exist between FMLA and CFRA, those most advantages to the employee apply. This is a huge liability trap for many employers.
The policy covering leave for bereavement should be updated to include domestic partners.
Vacation policy should be modified help you state in clearer terms how vacation accrues. In addition, text regarding the Mandatory Use of Vacation should be updated to include a new Division of Labor Standards Enforcement (DLSE) ruling regarding mandatory use of vacation.
□ Pregnancy Disability Leave – Substantial Revisions Amending Such Were Effective December 30, 2012
Your company’s pregnancy disability leave policy must comply with both state and federal law. If you have five or more employees this policy is mandatory. This is a complicated area in which employers frequently do not understand. Please review your existing policy with employment counsel to ensure current compliance and discuss each employee situation who is ready to take PDL with counsel prior to the employee going on leave.
□ Company Property – Rapid Pace of Changing Technology and the Law
Electronic communications systems pose new challenges for employers who need to regulate use of these communications. Your company’s handbook should reflect the new types of electronic communications used. Confidentiality and security of transmissions; authorized use; computer and internet use; social medical and employee owned devises should all be addressed in your policies.
Remember that electronic media policies (including policies relating to social media) should not be enforced in a manner that would limit an employee’s right to discuss the terms and conditions of employment, such as discussions regarding wages and working conditions. Such discussions are generally protected under California law and Section 7 of the National Labor Relations Act. Recently, there has been a great deal of activity by the National Labor Relations Board in the area of social media policies. The NLRB has filed unfair labor practice charges against employers (including non-union employers) who have disciplined employees for discussing working conditions on social media sites, such as the employees’ Facebook or Twitter account. This is an evolving area of the law and you are advised to consult employment counsel.
□ Personnel Records – new for 2013
A law effective January 1, 2013 greatly expands California law relating to inspection of personnel files. The labor code has been amended to clarify that both current and former employees have the right to inspect and copy contents of personnel files. Under prior law, an employee also did not have an absolute right to copy the entire personnel file, but only documents that he or she had signed relating to obtaining and holding employment.
The new law allows every current and former employee to inspect the personnel records that the employer maintains relating to the employee’s performance or to any grievance concerning the employee. Current and former employees have the right to not only inspect the file, but also to receive a copy of the contents. If a copy is requested, the employee or former employee can be charged the actual cost of copying.
□ Employee Conduct – new for 2013
California law allows employees to dress consistently with their gender identity. Make sure your dress code and other personal standards policy is gender neutral.
Recent advances in technology, such as the “Iphone,” “BlackBerry,” Instant Messaging and Texting are additional means of communicating and are also additional ways in which harassment and/or discrimination can occur. Your organization may be liability for harassment/discrimination, even if your employees are using personal equipment.
Camera phones have become increasingly popular, raising questions about employee privacy and company security. To protect your interests, and your employee’s expectations of privacy in the workplace, a Using Camera Phones policy should be implemented.
Current legislation may impact your use of non-compete agreements both in California and in other states. Carefully review employee documents and contracts drafted in other states that apply to employees now working in California for restrictive covenant clauses. It is recommended that you consult with legal counsel before using a non-compete agreement with an employee who may eventually work in California
Review your employee handbook policy to be sure it is not overly broad and does not prohibit or discourage employee activity that is protected by state or federal law.
You may prohibit the disclosure of proprietary information, trade secret information or other information that is subject to a legal privilege.
□ Review all Posters and Pamphlets
Employers should review company posters and pamphlets to be sure they are current.
□ Provide Sexual Harassment Prevention Training
Employers with 50 or more employees must provide all supervisory employees with at least two hours of classroom or other interactive training or education regarding sexual harassment. The training should be interactive and must be provided by a qualified trainer with knowledge and expertise in the prevention of harassment, discrimination and retaliation and must include specific items.
California law requires that employers post a state DFEH poster, which includes information about the illegality of sexual harassment and available remedies.
□ Review Employee Classifications
Wage and hour class action lawsuits continue to plague employers in California and nationwide. Employers should annually audit their classification of employees as exempt or non-exempt to determine if employees are properly classified. Examine each employee’s actual job duties. Review and revise job descriptions, if necessary, to reflect each employees actual job responsibilities.
□ Obtain New COBRA Forms
The US Department of Labor issued new text and forms for employers with employees inside and outside of California and nationwide, mainly dealing with notice requirements. These forms are mandatory. Many forms are available online at www.hrcalifornia.com.
□ Comply with Criminal Background Check Laws
For employers who must do background checks that include criminal offender records, the State Department of Justice will only accept fingerprint images transmitted electronically.