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Influx of new labor laws to keep employers busy

California Gov. Jerry Brown and state legislators were busy last year, resulting in a large amount of new labor and employment laws for 2013.

The recently enacted regulations are sure to keep company executives busy for the coming months, according to local legal analysts.

"I think it heralds the intention of the governor's office to enact more employee-protective laws in the state of California," said Madeline Cahill-Boley, managing shareholder of Sullivan Hill Lewin Rez & Engel who specializes in employment law. "(Many of the new laws) increase the risk for California employers and really challenge their existing practices."

One of the bigger changes involves sales commissions. Employers are now required to put all commission agreements in writing and provide a receipt -- signed by the employee -- acknowledging that the agreement was received by the employee.

"It's for the benefit of both parties," said Adriana Cara, a labor and employment lawyer for Brown Law Group. "It's something any defense attorney is going to agree with. It sets forth what the understanding of both parties is."

While companies typically have a commission policy or plan, they rarely issue a contract for each individual employee -- a requirement with the new law.

"It's particularly a trap for unwary out-of-state employers with California, commission-based employees," Cahill-Boley cautioned.

The state has added several regulations regarding the treatment of pregnant employees.

Lawmakers have expanded the definition of pregnancy discrimination to include those individuals who are "perceived to be pregnant," allowing them to sue for discrimination.

"If someone is perceived as pregnant and they're treated differently, they'd have a cause of action," Cara said.

Legislators also amended the provision regarding pregnancy disability leave, expanding the definition of disabilities related to pregnancy to include morning sickness, lactation and post partum depression.

Additionally, the way pregnancy leave is being calculated has changed from days to hours, and an employee can get up to four months per pregnancy and not per year.

Also, according to the new regulations, an employer can't transfer an employee to a new position over her objections just because she's pregnant.

"The new pregnancy regulations dramatically change an employer's obligation," said Danielle Hultenius Moore, a partner with Fisher & Phillips.

The categories protected from harassment discrimination under the Fair Employment & Housing Act have been expanded as well to include women who are breast feeding. Also, accommodations have to be made based on religious dress and grooming.

Some of the new laws address the exploding popularity and prevalence of social media sites like Facebook, Twitter and Instagram.

The labor code has been amended to prohibit employers from asking current employees or job applicants to disclose the user names and passwords of their social media accounts.

Employers also cannot stand over an employee while he or she is opening social media or email accounts.

"What's interesting is that they have a definition of social media that's very broad," Sullivan Hill's Cahill-Boley said. "And it covers more than just Facebook and Instagram. The definition includes the employee's personal email and their text messages."

Employers can require a password in the case of an investigation into employee misconduct.

"I always tell people it's not a good idea (to look at social media accounts of employees) because they contain information that could reflect ethnicity or a medical condition," Cara said. "You don’t want to (know certain) information about an employee because they could say you made a decision [based on it] that was illegal."

In another change of law, employers now have to maintain an employee's personnel file for three years after his or her termination, and they have 30 days to honor a request to see it.

Previously, a company had as long as was reasonably expected to fulfill a request for a file.

A new regulation in 2013 also prohibits companies from paying non-exempt employees a fixed salary that includes overtime work.

Certain industries have employed this practice as a way to forecast their costs, but it can create an unfair cap on the amount of overtime pay an employee can collect.

Also, computer technicians have been added to the category of employees required to report child abuse.

The legal analysts said employers need to play close attention to the new laws.

"In a down economy, the thing a lot of employers stopped doing was being proactive in risk prevention," said Fisher & Phillips' Moore, "and they can't afford to do that anymore. You have to put risk prevention on the forefront.

"They have to train their staff and human resources professionals and supervisors on how to deal with some of these situations, [like] accommodating religious needs and pregnancies, and make sure they understand the changes in the law."


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