Raven Brooks

The full excerpt of the email is below with lots of other laws.

January 2012 will be a busy month for most California employers as they work to comply with a number of new laws affecting employers and employees alike.

SB 299 – Health Coverage During Maternity Leave: During a legally protected pregnancy disability leave, this law requires the continuation, at pre-leave levels, of health insurance benefits, for up to four months.

Specifically, this law amends the pregnancy disability provisions of the California Fair Employment and Housing Act (FEHA) to mandate that employers provide employees the same level of insurance benefits (i.e., cost, coverage, eligibility, etc.) during pregnancy-related leave as they were provided prior to taking the leave. Notably, this new law and the amended pregnancy disability provisions of the FEHA apply to California employers with five or more employees and to ALL employees of such employers, regardless of tenure. This means that a California employee who begins a pregnancy disability leave (“PDL”), but does not become eligible for leave under the federal Family Medical Leave Act (FMLA) and/or the California Family Rights Act (CFRA) until after the PDL begins, may be eligible to receive continued health benefits coverage for up to seven months (four months under the new law and 12 weeks under the FMLA/CFRA). It also means that most small California employers will be required to continue health insurance benefits during covered pregnancy disability leaves even if the employers are not covered by the FMLA or CFRA. Because this is mandated insurance coverage, there is the possibility that this law may be preempted by ERISA or the Affordable Care Act.

Employers impacted: All employers in California with five or more employees.

AB 469 – Wage Theft Act: This new law requires employers to provide each non-exempt employee with written notice of specific information, at the time of hiring, as well as at the time of any future changes in the information (unless an exception applies).

The Labor Commissioner is expected to publish templates for the required notifications, which will include blanks for:

The rate or rates of pay to be paid to the employee (whether paid by the hour, shift, day week, salary, piece, or commission), including rates for overtime

Allowances claimed as part of the minimum wage
The employer’s regular pay days
The name of the employer, including any dba names
The physical and mailing address of the employer’s main or principal place of doing business
The employer’s telephone number
The name, address and telephone number of the employer’s workers’ compensation insurance carrier
Any other information the Labor Commission determines material and necessary

As already noted, the notices are not only required at the time of hiring. If any employer changes any information set forth in the notice, it must inform affected employees of the changes within seven calendar days after the changes take place, unless (1) such changes are reflected on a timely wage statement, or (2) notice of such changes is provided in another writing required by law within seven days of the changes. Also important to note is that each notice must be drafted in the language the employer normally uses to communicate employment information.

Employers impacted: All California employers.

AB 1396 – Written Commission Agreements: This new law requires employers that compensate non-exempt employees through commissions to set forth the terms of the commission agreement, including the method for computing and paying commissions, in a written contract.

While the law doesn’t actually go into effect until January 1, 2013, 2012 is intended as a transition year for employers to bring their commission practices into compliance by securing written contracts for every covered non-exempt employee. Such contracts must be signed by and given to the impacted employees. If such a contract expires and the parties continue to work under the same terms, the contract is presumed to remain in effect until it is superseded or the employment relationship is terminated.

Employers impacted: All California employers.

AB 22 – Credit Reports: Under existing law, an employer is permitted to request a report detailing the credit history of an employee or applicant, provided, among other things, that the individual in question is given prior written notice and consents to the ordering of the report. The new law further restricts the ability of most employers to obtain credit reports regarding employees or applicants.

Going forward, the use of credit reports in employment decisions will be forbidden unless the job in question is: (1) a managerial position; (2) a law enforcement officer position; (3) one for which a credit report screening is required by law; (4) one which requires regular access to confidential information; (5) one which allows the employee to enter into financial transactions on the company’s behalf; or (6) one that involves regular access to cash totaling $10,000 or more. In addition, before ordering a credit report concerning a job applicant or employee, the employer must notify the individual in writing of the basis for the credit report (i.e., which of the above categories provides a basis for the requested report).

Employers impacted: All California employers.

SB 459 – Independent Contractors: This new law prohibits the “willful misclassification” of employees as independent contractors and authorizes the Labor and Workforce Development Agency (LWDA) to assess severe civil penalties against employers who do so.

Under the new law prohibiting willful misclassification of employees as contractors, monetary penalties can range from $5,000 to $25,000 for each violation, depending on whether the LWDA finds that the employer engaged in a pattern or practice of misclassification. Violating employers may also be required to post a notice for a period of one year, acknowledging (among other things) the confirmed act of willful misclassification, and encouraging employees to seek relief if they feel they may be misclassified. These same penalties will apply if an employer charges fees (for, say, space rental, material costs, licenses, or equipment rental) to an employee improperly classified as an independent contractor, where the fees would be unlawful in the employment context. In addition, the new law imposes joint and several liability on consultants who incorrectly advise an employer to classify an employee as a contractor, although this liability does not apply to in-house advisors or attorneys. Unfortunately, the new law does not provide a clear definition of “willful misclassification.” Rather, the term “willful misclassification” is given the imprecise and somewhat circular definition of “avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.”

Employers impacted: All California employers.

SB 559 – Discrimination Based on Genetic Information: This new law adds “genetic information” to the list of unlawful types of discrimination under the Fair Employment and Housing Act (FEHA) and the Unruh Civil Rights Act.

This new law is largely duplicative of federal law, although the California version expands the applicability to a broader range of employers, since the California state law applies to employers who have five or more employees, whereas the federal law (the Genetic Information Non-Discrimination Act (GINA)) applies only to employers who have fifteen or more employees.

Employers impacted: All employers in California with 5 or more employees.

AB 592 – Interference: This new law adds language to the California Family Rights Act (CFRA) and the pregnancy disability leave law that makes it unlawful to interfere with or in any way restrain the exercise of rights under these laws.

This added language is similar to what already is contained in the federal Family Medical Leave Act (FMLA) and, thus, should not be a major change to existing law or an employer’s legal obligations.

Employers impacted: All employers in California with five or more employees.

AB 887 – Gender Identity: This law refines the definitions of the words “sex” and “gender” (at least as they apply in several anti-discrimination laws, including the FEHA).

”Sex” and “gender”, as they are newly defined, now encompass a person’s gender identity, whether or not gender-related appearance and behavior stereotypically correspond with his or her sex at birth.

Employers impacted: All employers in California with five or more employees.

AB 1236 – E-Verify: This new law prohibits local governments in California from requiring private employers to use the electronic employment authorization verification system as part of their hiring practices.

Ultimately, this law imposes no new requirements on employers and, instead, should maintain consistency throughout the state, leaving it to the federal government to control employment authorization verification requirements.

Employers impacted: All California employers.