New Employment Laws for 2013 – Part I

The California Legislature has once again passed, and Governor Brown has signed, a number of new requirements for employers in California. All of the following new laws are effective January 1, 2013 unless otherwise noted.

Personnel Files

Personnel records must be made available for inspection by an employee, a former employee, or his or her representative, not later than 30 days after a written request (can be extended by five days by agreement). Additionally, a copy of the records must be provided (on written request) within the same timeframe. The employer may charge the actual cost of copying the records. Certain documents (e.g., letters of reference) are excluded and the name(s) of any non-supervisory employee in the records may be redacted. An employee is limited to one request to inspect/copy per year and a representative is limited to 50 requests on behalf of individual employees per month. The employer may provide a form for this purpose and can designate the representative to whom requests should be made.

What this means for you

Employers can expect numerous requests from employees and their representatives to review and receive a copy of their personnel files. It will be helpful to designate a representative and use an employer form. The new law could potentially be a basis for objecting to liens from copy services for employment records since the employee’s attorney is given the right to request these records on behalf of their clients. Watch for boilerplate demands in initial demand letters from applicant’s attorneys; failure to provide the personnel file in 30 days could be the basis for then using a copy service. It is more important than ever that attorney-client privileged information is not kept in employees’ personnel files.

Social Media

An employer may not require an employee or applicant for employment to 1) disclose a username or password for the purpose of accessing personal social media (except for those kept on employer-owned devices); 2) access personal social media in the presence of the employer (“shoulder surfing”); or 3) divulge any personal social media, unless the social media is reasonably believed to be relevant to an investigation or allegations of employee misconduct or a violation of law.

What this means for you

Employers may not ask employees or applicants for employment for personal usernames or passwords or ask employees or applicants about personal social media postings. However, you should request and retain all usernames or passwords used on employer-provided computers or other electronic devices.

Fair Employment and Housing Act (FEHA) Changes

Religious discrimination

The definition of “religious creed” in FEHA has been expanded to include “religious dress and grooming practices”. “Dress” will be construed broadly and will include clothing, head or face covering, jewelry and artifacts. “Grooming” includes all forms of head, facial and body hair. As with all discrimination based on religion, the employer must reasonably accommodate the employee unless doing so creates an undue hardship. The statute specifically states that segregating from other employees or the public is not a reasonable accommodation of a religious dress or grooming practice.

Definition of “sex”

The definition of “sex” includes breastfeeding or medical conditions related to breastfeeding.

Fair Employment and Housing Commission (FEHC)

This separate agency has been eliminated and has been replaced with an Employment and Housing Council within the Department of Fair Employment and Housing (DFEH). Additionally the DFEH will now bring direct civil actions (rather than bringing them before the FEHC) after mandatory dispute resolution.

What this means for you

Particularly with regard to possible religious discrimination you need to be prepared for requests to wear certain jewelry or artifacts and maintain certain facial or body hair. The new law could create a new basis for stress claims especially since SB863 has eliminated psych PD for compensable consequences psych injuries.

Poster – Human Trafficking

Entities in certain industries (e.g., public premises that sell alcohol; bus and certain passenger rail stations; truck stops; hospital emergency rooms; farm labor contractors; private job recruitment centers; and certain massage/bodywork businesses) will be required to post a notice with information on slavery and human trafficking. A model notice will be provided by the Department of Justice. English and Spanish versions of the notice must be posted along with one other language most widely spoken in the county.

New Federal Requirement – Fair Credit Reporting Act (FCRA)

An updated version of the FCRA Summary of Rights notice must be used (when obtaining certain consumer reports on an employee or applicant) beginning January 1, 2013. The primary change in the language of the notice is to reflect that the FCRA is now being enforced by the Consumer Financial Protection Bureau, rather than the Federal Trade Commission.

What this means for you

Make sure you have all appropriate posters or notices required for your business.

For assistance in implementing these new requirements, please contact GMK employment law attorney Jeanne Flaherty at 818-755-0444 or jflaherty@gmklaw.com.