I hope your 2013 is off to a great start.
Our labor attorney has provided an update for you our client on the latest laws that took effect January 1, 2013. I hope you find this summary helpful. Please do not hesitate to contact me if you have any questions.
Sincerely,
Jim Morrison, RHU, REBC, CLU, LPRT
License # 0823956
MISbenefits.com | MISindividual.com
REVISED 2013 EMPLOYEE HANDBOOK
As of January 1, 2013, several new laws went into effect that impact employers. At the very least, your Employee Handbook should be reviewed and updated. Following are some examples of the new and changed rules that affect most businesses:
Meal & Rest Periods – Following a Cal. Supreme Court decision published in April (Brinker Restaurant Group v. Superior Court) employers should re-examine their meal and rest period policies to be sure they still comply with the law.
o Make sure employees are able to take a full 30 minute meal break and two 10 minute rest breaks in an eight hour day.
o Rest breaks should be scheduled toward the middle of a work period if possible, and are always treated as paid time.
o The first meal break should come before the end of the 5th hour of the workday; on a day longer than 10 hours, a second meal break should be scheduled. Meal breaks need not be paid time. Know when employees can “waive” the first or second meal period.
o Record employees’ time out and in for meal breaks and if possible, record the fact that rest breaks have been taken.
o If the employer violates these rules, it can cost an hour’s pay for each employee for each day a break is missed.
Social Media: As of January 1, employers can’t demand access to an employee’s Facebook, LinkedIn, or other social media account. Be careful not to use protected information obtained from social media (about age, disability or political beliefs) to make hiring decisions.
Whose Account Is It Anyway?
If you encourage employees use social media for work, who owns the account? If the employee leaves, who controls the business communication that shows up on those accounts? Make sure those accounts belong to the company and not the employee.
Religious Dress: California’s Fair Employment & Housing Act now protects “religious dress and grooming practices,” including face and head coverings, clothing, jewelry, hair, almost any item that is part of the employee’s “observance of religious creed.” The employer can’t “hide” an employee in the back room due to a religious dress or grooming practice.
Breastfeeding: Discrimination due to breastfeeding is now a separate and distinct violation of the Fair Employment & Housing Act.
Mental Disability: The term “mental retardation” is being abandoned in favor of “intellectual disability.” Change your policies.
Secure Choice Retirement Savings: A new law creates a state-run retirement plan for private employees. Employers must offer employees a chance to contribute unless the employee opts out. Ask your insurance broker how this impacts your business.
Commission Pay Contracts: Know which commission pay agreements must be in writing, signed by the company and acknowledged by the employee. This new law exempts “short term productivity bonuses” and “temporary variable incentives” that don’t decrease payments under the written agreement.
Chargebacks: A recent court opinion okays chargebacks against an advanced commission if the sale is canceled months later, so long as the deduction comes from a future advance and not earned commissions. All such plans should be reviewed by your counsel and signed by the employee.
Outsource Labor Liability: Be careful who you contract with. If you hire an outside contractor for services like construction, janitorial services, security guards, or warehousing, be sure the deal isn’t “too good to be true.” If they are underpaying their employees, you could be liable to the contractor’s employees if they are underpaid. Learn how to minimize your risk.
Independent Contractors: An employer could be fined $5,000 or more for each “employee” who is misclassified as an independent contractor, under California penalties that took effect in 2012. Expect stricter enforcement by the California EDD in 2013. Look at all independent contractor relationships with suspicion and if appropriate, get legal advice.
Salaried but Not Exempt?: Just because you pay someone a salary doesn’t make him/her exempt from overtime. But now, if you make a mistake, it could be a misdemeanor and cost a bundle to fix. Make sure all salary classifications are well-founded.
Rounding Time Cards: Not many employers round their time cards, but if you do, a recent court decision should give you a little more confidence in the system. In affirming a San Diego judge, the California Court of Appeal said it’s okay to round employee start and end times to the nearest tenth of an hour, if over time the program treats them fairly and doesn’t take away from their time worked. Employers who use rounding should be prepared to prove their program is fair.
Record Inspection: There are new technical rules about when the employer has to allow an employee to inspect and copy certain personnel records. All employers should keep these rules handy. They are found in Labor Code sections 226, 432 and 1198.5.
Wage Garnishment Minimum: Starting July 1, 2013, no wage garnishment is permitted that would cut the employee’s net pay below the minimum wage. Future garnishment orders should include the new instructions; your payroll employees should be trained to do it right.
Arbitration Agreements: If you have an arbitration agreement for employee disputes, make sure it is still compliant. According to the California Court of Appeals, an agreement to arbitrate employment disputes should be a separate document, and not be buried in the employee handbook. Also, if your arbitration agreement calls for the use of a particular set of rules – such as the Employment Rules of the American Arbitration Association – you must give the employee a copy or tell them where they can find it.
“Labor Protections” are not just for Unions any more: The National Labor Relations Act protects employees who talk to each other and complain to management about wages and working conditions. The National Labor Relations Board (NLRB) is taking more action against non-union employers for what they see as violations, including written policies in your Employee Handbook. Know where the traps are. All employers should have such policies reviewed by competent labor counsel to be sure they do not violate the NLRA.
For more information or to get questions answered, feel free to contact my office, and ask about the special rates for clients of Morrison Insurance Services, Inc.
Lou Storrow
Storrow Law, APC
760-929-9141
Whenever you have questions about an HR issue or a labor concern please remember, as our client, these services are at your disposal:
- An HR Resource Center which you can access for forms and regulatory updates and more, plus,
- Free telephone consultations with a local San Diego labor attorney whom we have hired on retainer to answer your questions.
You can find out more about these services by giving us a call. And if you have questions about any insurance needs please contact our office.
Jim Morrison
License # 0823956
(760) 438-9311
