As we previously posted on this blog, a new California law was passed in October requiring California employers, effective January 1, 2012, to provide new hires with a written notice containing certain wage and other information. The new law is codified as Labor Code section 2810.5 and requires employers to provide newly hired non-exempt employees with the following categories of information (in one self-contained writing):
1. The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission or otherwise, including any rates for overtime;
2. Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances;
3. The regular payday designated by the employer;
4. The name of the employer, including any “doing business as” names used by the employer;
5. The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
6. The telephone number of the employer;
7. The name, address, and telephone number of the employer’s workers’ compensation insurance carrier; and
8. Any other information the Labor Commissioner deems material and necessary.
Employers are required to begin providing the foregoing information to non-exempt new hires effective January 1. If there are changes to any of the information provided, written notice of the change must be provided to employees within 7 calendar days. The information must be provided in the language normally used by the employer to communicate employment-related information. The new law exempts from the notice requirement State workers and most unionized employees covered by the terms of a collective bargaining agreement, as well as employees who are exempt from overtime.
While the foregoing seems fairly straightforward to apply, some confusion has arisen over the eighth category of prescribed information listed—“any other information the Labor Commissioner deems material and necessary.” The Labor Commissioner waited until late December to post anything substantive about this new law and has since revised its position at least once regarding the scope of the new law, leaving employers with less than clear guidance over compliance. Under the new law, the Labor Commissioner is charged with creating a template that employers may (but are not required to) use to comply with the new notice requirement. The Labor Commissioner waited until almost the end of December to publish this template, which is available here. Interestingly, the Labor Commissioner’s template includes several additional categories of information (beyond those enumerated in the actual statute):
1. The employee’s hire date and position;
2. The business form of the employer (e.g. corporation, partnership, LLC, etc.);
3. Specified information about other businesses or entities the employer uses to hire employees or to administer wages or benefits;
4. Whether the employee’s employment agreement is written or oral; and
5. The employer’s workers’ compensation policy number.
Adding more to the confusion, the Labor Commissioner also posted (at the eleventh hour) some “Frequently Asked Questions” about the new law, including guidance stating that the notice needed to be provided to all current employees, not just to new hires as indicated in the statute. It appears that the Labor Commissioner’s office then realized it had overstepped its authority in exceeding the scope of the statute by extending its coverage to current employees, so the Labor Commissioner (without explanation) revised the FAQ to delete this reference. The most current FAQ published by the Labor Commissioner’s office is here. Employers should review both the template and FAQ.
Although employers are not required to use the Labor Commissioner template as a form notice, they are advised to make sure that any written notice they create includes all categories of information indicated on the Labor Commissioner template. To be clear, it appears that the Labor Commissioner does have the authority (prescribed by the express language of the statute) to broaden the categories of information that must be provided in writing to new hires. At this time, the notice must only be provided to new hires and not to current employees. However, changes to any of the information provided in the new hire notice will need to be provided to current employees within 7 calendar days of the change.
Employers should note that although the new law does not provide for any specific penalties for non-compliance, it appears that the law can be enforced through California’s “catch-all” penalty provision, known as the Private Attorneys’ General Act (PAGA). PAGA allows for recovery of substantial penalties for non-compliance with provisions of the Labor Code. Employers should review the Labor Commissioner template and guidance and ensure that they have a compliant notice in place, if they have not already done so. Employers are advised to include language in their notice to make clear, as applicable, that the employment relationship is at will and that nothing in the notice should be construed as creating a contract of employment or for the promise of any particular term or condition of employment, and that the employer has the right to change the terms and conditions of employment at any time with both employer and employee having the right to terminate the employment relationship with or without cause or advance notice. Employers should also monitor the Labor Commissioner website from time to time in the event there are changes to the content of the notice requirement that may be prescribed by the Labor Commissioner.
Last week the increasingly controversial NLRB issued a decision holding that class action waivers in employment arbitration agreements (non-union) violate employees' rights to engage in protected concerted activity under the NLRA. The case involved a national homebuilder, D.R. Horton, Inc. Like many employers, D.R. Horton several years ago started requiring its employees, as a condition of employment, to agree to resolve any employment-related disputes by way of binding arbitration. Also like most similar agreements, D.R. Horton's agreement contained a class action waiver provision--a provision that precludes arbitration of collective or class claims. There has been much litigation both in California and on the federal level concerning the enforceability of class action waivers, the most recent important decision being that of the United States Supreme Court in AT&T Mobility v. Concepcion. In the AT&T Mobility case, the Supreme Court upheld the validity of class action waivers in consumer arbitration agreements, holding that the Federal Arbitration Act (FAA) preempted a California state law invalidating such class action waivers in consumer agreements. Although the AT&T Mobility case was not an employment case, its reasoning may be applied to similarly support the enforceability of class action waivers in employment arbitration agreements. There have been numerous legislative efforts both in California and in the United States Congress to bar mandatory arbitration agreements in the employment context but none of these legislative efforts have succeeded to date. With the NLRB's decision in D.R. Horton, it appears the NLRB is now presenting a new attack on the validity of such agreements, at least insofar as the agreements contain a class action waiver.
In the D.R. Horton case, the employees were required to sign an agreement to arbitrate any and all employment disputes arising between them and the company. The agreement included a provision indicating that arbitration proceedings had to be conducted individually and not on a collective or classwide basis. Notwithstanding this provision, an employee by the name of Michael Cuda advised the company that he intended to initiate arbitration of a claim for unpaid overtime on behalf of himself and all similarly situated employees who were allegedly misclassified by the company. D.R. Horton took the position that the demand for arbitration was invalid because the arbitration agreement precluded class claims and mandated that any claim in arbitration be pursued individually. Cuda filed an unfair labor practices charge with the NLRB, alleging that the class action waiver provision violated the employees' rights under the NLRA. The NLRB agreed.
The NLRB first held that the arbitration agreement violated the NLRA because its scope could be interpreted by employees as precluding them from filing unfair labor practice charges with the NLRB. If this were the sole finding of the NLRB, it would not be much cause for alarm because employers with mandatory arbitration agreements could simply revise them to clarify that the agreement does not prohibit the filing of unfair labor practice charges with the NLRB. Most administrative claims (for example, EEOC claims and claims filed with similar state agencies) are already exempted from the scope of arbitration agreements by virtue of applicable law. The NLRB did not so limit its holding, however. Instead, the NLRB went on to hold that the agreement's class action waiver further violated employees' rights to engage in concerted activity to improve the terms and conditions of employment on matters such as wages, hours and working conditions. According to the NLRB, an individual pursuing a lawsuit on behalf of other employees is one such means of concerted activity: "Clearly, an individual who files a class or collective action regarding wages, hours or working conditions, whether in court or before an arbitrator, seeks to initiate or induce group action and is engaged in conduct protected by Section 7."
The NLRB held that neither the FAA nor the Supreme Court's decision in AT&T Mobility compelled a different conclusion. The Board held that the FAA does not require enforcement of arbitration agreements where a party is precluded from vindicating substantive rights protected by statute. The NLRB reasoned that the class action waiver impairs employees' substantive right to band together to improve working conditions as set forth in Section 7 of the NLRA. The NLRB similarly distinguished the AT&T Mobility case, reasoning that it did not involve the compatibility of two federal statutes (the FAA and the NLRA) and harmonizing their purposes. Instead, the AT&T Mobility case involved the issue of federal law (the FAA) preempting a state law disfavoring enforceability of arbitration agreements.
The NLRB did not go so far as to say that all employment arbitration agreements violate the NLRA. The NLRB instead said that agreements prohibiting employees from pursuing collective or classwide relief in any forum violate the NLRA. So long as the agreement allows employees to pursue collective/classwide relief in some forum--arbitral or judicial--it will not violate the NLRA. This is of course of little practical utility to employers utilizing arbitration agreements.
Does the NLRB's D.R. Horton decision mean that employers should stop including class action waivers in their arbitration agreements? Not so fast. It should be expected that the NLRB's decision will be appealed to the Eleventh Circuit Court of Appeals and possibly further reviewed by the United States Supreme Court. This is amidst much other controversy surrounding the current NLRB and many of its other recent actions. There is so much current uncertainty regarding the NLRB and the validity of its recent actions that employers should stay tuned and monitor continuing developments on this front.
Effective January 1, 2012, California employers will have to comply with newly enacted Labor Code section 2810.5(a). This new law, known as the Wage Theft Protection Act of 2011, requires employers to provide employees with written information at the time of hire concerning wages and related information. California's Labor Commissioner was tasked with creating a template employers may use to provide the required information. The Labor Commissioner has just published the optional template, which is available here. For more information on the requirements of the new law, click here and here.
California's Department of Industrial Relations has announced that the minimum pay required for computer professionals to qualify for overtime exemption in California is increasing effective January 1, 2012. The increase is 2.5% higher than the current minimum pay rate and requires that these employees be paid at least $38.89 per hour, which translates to a monthly salary of $6,752.19 and an annual salary of $81,026.25. Employers should note that these minimum pay thresholds are applicable to only to California computer professionals. The minimum rate of pay under federal law is different (the hourly rate being $27.63 per hour). Employers with exempt computer professionals in California should review their pay practices to ensure compliance with the increased pay requirements.
California employers are cautioned that not all employees who work in the computer field qualify for overtime exemption, regardless of how much they are paid. In order to qualify, these employees (in addition to being paid at least the minimum pay detailed above) must meet very specific duties tests, generally involving programming, software development, as opposed to installation, maintenance, repair, and the like. (Click here for a more detailed description of these duties on the California Department of Labor Standards Enforcement website.) The duties tests under California law are, again, somewhat different than those applied under the federal computer professional exemption. As such, employers with California computer professionals who are or will be classified as exempt, should carefully review the duties and pay to be sure exempt classification is proper.
San Francisco's minimum wage, which currently is $9.92 per hour, is increasing to $10.24 per hour effective January 1, 2012. This makes San Francisco the first city in the country with a minimum wage in excess of $10 per hour. The minimum wage increase is tied to a new law passed by San Francisco voters in 2004 which automatically increases the city's minimum wage in accordance with inflation. Employers with employees who work more than two hours in a workweek inside San Francisco city limits should ensure their payroll practices are updated to reflect the new minimum wage.
Many employers are about to embark on the annual open enrollment period where they modify their health benefits (or at least consider doing so) and undergo the process of enrolling employees for the 2012 calendar year. Certain provisions of Obamacare (officially known as the Patient Protection and Affordable Care Act or "PPACA" for short), have already taken effect. Others will come into play over the next 26 months. This blog does not allow for a comprehensive review of the PPACA. However, we wanted to provide some resources that are accessible, without cost, to help guide our readers as they approach open enrollment and as we get closer to 2014 when all the Act's provisions are scheduled to be in place.
The PPACA has provisions that allow states to set up exchanges to make it easier for individuals and small businesses to compare plans and buy health insurance on the private market. California was one of the first states to begin working on this. This website provides good information on the California Health Benefit Exchange.
There have been many challenges to the PPACA in the courts. If these are successful, the PPACA may not move forward as intended. Only time will tell whether these challenges will derail the PPACA completely, partially or not at all. Six writs of certiorari are currently before the United States Supreme Court and the mandates of Obamacare are under attack based on constitutional grounds. This website provides a good summary of the status of the various lawsuits challenging the PPACA.
On this website, the Henry J. Kaiser Family Foundation provides a good summary of the key provisions of the PPACA and a helpful Implementation Timeline.
This is the United States Department of Labor's website on the PPACA. It contains comprehensive information on the Act, including but not limited to access to the proposed DOL regulations related to the Act.
This website provides information on implementation of the PPACA in California.
We hope this information is helpful to you.
We previously posted on California's passage of the Wage Theft Protection Act of 2011 (AB 469), which requires California employers to start providing written notice to new hires of wage payment information as well as various other categories of information. Our prior post is here. California's Labor Commissioner is required to prepare a template for employers to use for this purpose. The Labor Commissioner has published on its website (here) that this template, along with guidance on compliance, will be available in mid-December. We will post this information as soon as it becomes available.
In pleasant news for California employers, Governor Brown vetoed several unappealing employment bills this past weekend. The bills he vetoed include (1) AB 267, which would have invalidated forum selection and choice of law provisions in employment contracts with California employees, (2) AB 325, which would have required California employers to provide bereavement leave, and (3) SB 931, which would have imposed new requirements for use of payroll cards. That is the good news.
The bad news is that Governor Brown signed into law AB 22, which limits California employers’ ability to use credit reports for employment purposes. Under the new law, employers (with the exception of certain financial institutions) are prohibited from obtaining or relying on credit reports for applicants and employees, unless the report is sought in relation to (1) a position in the California Department of Justice; (2) a managerial position (defined as a position that qualifies for the executive exemption from overtime); (3) a sworn peace officer or other law enforcement position; (4) a position for which credit information is required by law to be disclosed or obtained; (5) a position that involves regular access (other than in connection with routine solicitation of credit card applications in a retail establishment) to people’s bank or credit card account information, social security number, and date of birth; (6) a position in which the employee would be a named signatory on the employer’s bank or credit card account, authorized to transfer money on behalf of the employer, or authorized to enter into financial contracts on behalf of the employer; (7) a position that involves regular access to cash totaling $10,000 or more of the employer, a customer, or client during the workday; and (8) a position that involves access to confidential or proprietary information (defined as a legal “trade secret” under Civil Code 3426.1(d)).
Even if the employer is permitted to obtain a credit report under one of the exceptions outlined above, the employer must first provide written notice to the applicant or employee, specifying the permissible basis for requesting the report and providing a box for the employee/applicant to check off to request a copy of the report, which must be provided free of charge and at the same time the employer receives its copy of the report. If employment is denied based on information in a credit report, the employer must advise the applicant/employee and provide the name and address of the credit reporting agency that supplied the report.
Other labor and employment legislation signed into law by the Governor in the last few days includes the following:
SB 459 (Misclassification of Independent Contractors): This new law creates stiff penalties for willful misclassification of employees as independent contractors. The law defines “willful” as “voluntarily and knowingly misclassifying” an individual. The law also makes it unlawful for an employer to charge an individual who has been willfully misclassified any fees or other deductions from compensation if those fees and deductions (e.g. for licenses, space rental, equipment) would have been prohibited had the individual been properly classified as an employee. In the event of a finding of willful misclassification, penalties may be assessed in the range of $5,000 to $25,000 per violation. Additionally, an employer in violation may be ordered to display prominently on its Internet web site (or other area accessible to employees and the general public) a notice that explains the employer has been found guilty of committing a serious violation of the law by willfully misclassifying employees, along with other prescribed information. The new law also imposes joint and several liability on individuals who, for money or other valuable consideration, knowingly advise an employer to treat an individual as an independent contractor to avoid employee status. Excepted from liability are employees who provide advice to their employer, and licensed attorneys providing legal advice to the employer.
AB 469 (Notice of Pay Details): This new law requires employers to provide each employee, at the time of hire, with a notice that specifies (1) the pay rate and the basis, whether hourly, salary, commission or otherwise, as well as any overtime rate, (2) allowances, if any, claimed as part of the minimum wage, including meals or lodging, (3) the regular payday, (4) the name of the employer, including any “doing business as” names used by the employer; (5) the physical address and telephone number of the employer’s main office or principal place of business, and a mailing address if different, and (6) the name, address and telephone number of the employer’s workers’ compensation carrier. The employer must notify each employee in writing of any changes to the information set forth in the notice within 7 days of the changes, unless such changes are elsewhere reflected on a timely wage statement or other writing required by law to be provided.
AB 887 (Gender Identity and Expression): This new law amends the Fair Employment and Housing Act (as well as various other laws) to make clear that discrimination on the basis of gender identity and “gender expression” is prohibited. Gender expression refers to a person’s gender-related appearance and behavior, whether or not stereotypically associated with the person’s assigned sex at birth. The new law also requires employers to allow an employee to appear or dress consistently with the employee’s gender expression.
AB 1236 (E-Verify): This new law prohibits the state, or a city or county, from requiring employers to use E-Verify as a means of verifying employees they hire are authorized to work in the United States.
AB 243 (Farm Labor Contractors): This new law requires employers who are farm labor contractors to disclose to employees the name and address of the legal entity that secured the employer’s services. This information must be disclosed as part of the employees’ itemized wage statements required by Labor Code section 226.
SB 126 (Agricultural Labor Relations): This new law deals with petitions objecting to the conduct of an election before the Agricultural Labor Relations Board and specifies that where the ALRB refuses to certify an election because of employer misconduct that, in addition to affecting the results of the election, would render slight the chances of a new election reflecting the free choice of employees, the labor union shall be certified as the exclusive bargaining agent for the bargaining unit.
Unless otherwise specified most new laws take effect January 1, 2012. California employers will want to familiarize themselves with these new laws as applicable to their workforces and operations, and revise policies and procedures accordingly.
Late last week, Governor Brown signed into law AB 1396, which requires commission pay arrangements to be set forth in a written contract. All employers must comply by January 1, 2013. Under the new law, whenever an employer enters into a contract of employment with an employee for services to be performed in California and the employee’s compensation involves commissions, the contract must be in writing and set forth the method by which the commissions will be computed and paid. The employer must give a signed copy of the contract to the employee and must retain the employee’s signed receipt of the contract. In the event the contract by its terms expires but the parties nevertheless continue to work under the expired contract, its terms are presumed to remain in full force and effect until the contract is expressly superseded by a new contract or the employment relationship is terminated. For purposes of the new law, “commissions” are defined in accordance with Labor Code section 201.4 as compensation paid to any person in connection with the sale of the employer’s property or services and based proportionately upon the amount or value thereof. However, the new law specifies that “commissions” does not include short-term productivity bonuses nor bonus and profit-sharing plans, unless they are based on the employer’s promise to pay a fixed percentage of sales or profits as compensation for work.
There has been a fair amount of litigation in California over the meaning of “commissions” in cases dealing with the overtime exemption for certain commissioned salespersons. This new law may well invite more litigation concerning commission pay within the state. Employers who have employees performing work in California and who are even arguably paid in whole or in part with commissions should be provided a written contract (with an acknowledgement form for the employer to retain) setting forth the formula and timing for earning and payout of commissions. Failure to comply could subject an employer to an action for penalties of $100 per pay period per aggrieved employee under the Private Attorneys General Act.
This week, California Governor Jerry Brown signed into law SB 299, legislation requiring California employers to continue group health coverage to employees on pregnancy disability leave for up to four months. California employers with five or more employees have long been required to comply with California's law permitting employees disabled by pregnancy to take a leave of absence of up to four months for the disabling condition. This leave is in addition to traditional "maternity leave," which separately provides the employee up to 12 weeks of leave for baby bonding (if the employer has 50 or more employees and is covered under FMLA/CFRA). Prior to passage of SB 299, employees on pregnancy disability leave were entitled to the same benefits provided by an employer to employees on other types of disability leaves. With respect to continuation of group health benefits, many employers limit the continuation of such coverage to 12 weeks, as this is the required time period for continuation of coverage under the FMLA/CFRA for family and medical leaves of absence. With the passage of SB 299, effective January 1, 2012, California employers must extend the continuation period to four months for pregnancy disability leaves.
As specified in the legislation, group health benefits must be continued on the same terms and conditions as if the employee continued actively reporting to work. Therefore, if the employer pays the entire premium for employee coverage, it must continue to do so for up to four months of pregnancy disability leave. If the employee normally pays a portion of the premium, the employee may be required to continue making such contributions (either for self or for dependent coverage) during the leave. Additionally, if the employee fails to return from pregnancy disability leave, the employer may recoup from the employee the premiums the employer paid to continue the employee's coverage during the leave, unless the reason the employee did not return is because of a continuing disability or because the employee took a separate protected leave (e.g. maternity leave) under the FMLA/CFRA.
California employers should review their policies and procedures relating to pregnancy disability leaves to ensure compliance with this new law.