Fenwick Employment Brief - October 2012

Important California Legislative Developments Governor Brown recently signed numerous bills into law, several of which impact private employer obligations to their California employees. Except as specifically noted, all of the new laws discussed below are effective as of January 1, 2013.

Social Media Protections – AB 1844: California law will expressly prohibit, with limited exceptions, employers from requiring or requesting that an employee or applicant (a) disclose a username or password for personal social media to, (b) access personal social media in the presence of, or (c) divulge any personal social media to the employer. Notwithstanding the prohibitions, an employer is specifically authorized to request such information if it is "reasonably believed" to be relevant to an investigation of employee misconduct or violation of applicable laws and regulations, and limited to that purpose or a related proceeding. Further, employers may not retaliate against an employee or applicant for not complying with a request in violation of the law.

Salaries to Non-Exempt Employees – AB 2103: Employers may no longer agree with non-exempt employees to pay a fixed salary covering regular and overtime hours. AB 2103 amends California Labor Code Section 515 to specifically provide that such a fixed salary "shall be deemed to provide compensation only for the employee's regular, nonovertime hours, notwithstanding any private agreement to the contrary." See our June 2012 FEB for additional background information on this new law.

Employee Personnel Files, Employee Inspection Rights – AB 2674: AB 2674 expands an employee's rights – and employer's obligations – relating to inspection and copying of an employee's personnel file, including the following:

Expressly affords former employees the same rights of inspection and copying as current employees, although the amendment limits requests by former employees to one per year. Employees have a right to both inspect and obtain a copy of their personnel records. Subject to certain numerical limits, requests can be made by an employee's "representative" – a person authorized in writing by the employee. Requests must be in writing, and employers must provide a request form but employees are not required to use it. Employers have 30 calendar days following a request to provide a copy of personnel records or to make them available for inspection. Employers may redact the names of nonsupervisory employees. Employers must maintain copies of personnel records for a minimum of three years after termination. The pendency of a lawsuit related to a personnel matter suspends the right to inspect or copy personnel records. Additional requirements apply to the logistics for an inspection and certain employees covered by collective bargaining agreements are excluded from coverage. The amendment imposes a $750 penalty for non-compliance, which is recoverable by the employee or the Labor Commissioner. Itemized Statements, Injury – SB 1255: Section 226 itemizes certain information, such as rate of pay, hours worked, and deductions, that employers must record on an employee's wage statement and outlines the penalty – not to exceed $4,000 plus costs and attorneys fees – for noncompliance where an employee suffers an injury. This new law specifies that an employee will be deemed to suffer an injury and trigger the penalty provision if an employer fails to provide a wage statement. The penalty will also apply if the statement lacks accurate and complete information, as specified, and the employee cannot "promptly and easily determine" from the statement...