2012 California Labor And Employment Legislative Update

California Governor Edmund G. Brown has recently signed into law a variety of important new employment and labor-related statutes. Gov. Brown vetoed two controversial measures as well. The following are the most significant of the measures signed and vetoed by Governor Brown. Most of the new statutes are effective January 1, 2013. The effective date of each statute is included below.

Employers May Not Require Employees or Applicants to Disclose Social Media Access Information (AB 1844)

Effective January 1, 2013, this law prohibits an employer from requiring or requesting an employee or employment applicant to disclose his or her social media username or password, to access his or her personal social media in the presence of the employer, or to divulge any personal social media. It defines "social media" as an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or internet web site profiles or locations. This bill also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand for access to the employee's personal social media. An employer can request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or violation of laws and regulations, and an employer can also require or request an employee to disclose a username, password, or other method of accessing an employer-issued electronic device. The bill contains no definition of an "investigation of allegations of employee misconduct." The new law contains no enforcement provision. Potentially, an employee terminated for refusing to provide access to a social media username or password could bring a claim for wrongful termination. Additionally, it is possible that a violation of the new statute could result in a claim for penalties under the California Labor Code Private Attorneys General Act ("PAGA"), Cal. Labor Code section 2698 et seq.

Bill Amends Fair Employment and Housing Act to Include Breastfeeding and Related Medical Conditions under the Definition of "Sex" (AB 2386)

Under the California FEHA, it is unlawful to engage in specified discriminatory employment practices on the basis of sex. Under existing law, "sex" includes gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth. Assembly Bill 2386 amends the FEHA so that the term "sex" also includes breastfeeding or medical conditions related to breastfeeding. This bill is effective January 1, 2013, and amends Section 12926 of the California Government Code.

Employment Agreements Involving Commissions Must Be in Writing (AB 1396)

Adopted in 2011 but effective January 1, 2013, this bill requires employers who establish commission plans to reduce commission agreements to writing. The written agreement must set forth the method by which commissions are computed and paid and must be signed by both the employer and employee. A signed copy must be provided to each employee who is a party to it. The law applies to all employers with commissioned employees in California, whether or not the employer is located in California. If the contract expires but the parties continue to perform under its terms, the contract's terms are presumed to remain in full force until a new contract superseding its terms is executed or either party terminates the employment relationship. The law excludes from the definition of "commissions" short-term productivity bonuses and bonus and profit-sharing plans, unless the employer offers to pay a fixed percentage of sales or profits as compensation for work...