The Law Offices of Benjamin Davidson, P.C., is a client-oriented employment litigation boutique focusing on achieving maximum results for each individual client. We are experienced in handling larger matters on behalf of professional and paraprofessional employees who require discretion and maintaining the integrity of their industry reputation. Areas of practice include age/disability/gender/sexual orientation/race discrimination, harassment, and hostile work environment; whistleblower retaliation; disability and pregnancy leaves; wrongful termination; breach of employment contract; failure to pay wages; meal and rest period claims; forced retirements; non-compete agreements and trade secrets; and other employment-related claims.
We screen cases selectively and prefer quality over quantity. All plaintiff’s cases are on contingency and there is no charge for an initial consultation. We also provide advice and counseling to selected employers to assist in compliance (hourly rates apply).
In September 2012, California Governor Jerry Brown enacted a number of laws that effect employment, most of which will become effective on January 1, 2013. California employers will need to take prompt action to ensure compliance, including revising employment policies and practices, and California employees should be aware of the rights that they impact.
The following are some of the more important changes in the law affecting employers and employees:
Access to and maintenance of personnel files: Under current law, employers must make the contents of employees’ personnel files available “at reasonable intervals and at reasonable times.” (Labor Code 1198.5(b).) Bill AB 2674 removes the “fuzzy” language and now requires that employers respond to employees’ requests to review their personnel files within 30 days — but it also requires employees to make that request in writing. It also permits employees’ “representatives” (such as attorneys) to make the request on their behalf. The new bill also increases the maximum penalty from $100 per violation to $750 per violation, plus attorneys fees and costs. (Labor Code 1199.) Employers must also maintain the personnel files of former employees for three years after the employee quits or is terminated.
Finally, while current law only required that personnel records be “made available” to employees, the current law will require employers to give the employee a copy of his or her personnel file if requested.
Breastfeeding protections: Effective immediately, AB 2386 expands the definition of “sex” under the California Fair Employment and Housing Act (FEHA) to include breastfeeding or medical conditions related to breastfeeding (presumably including the need to “pump” breast milk while lactating). In other words, an employer may not terminate or otherwise discriminate against an employee because she is breastfeeding or because, for example, she needs to take several breaks during the work day to pump breast milk.
In fact, this is not the first legislation specifically designed to protect lactating employees. Labor Code section 1030 provides that employers “shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child,” and section 1031 states that “[t]he employer shall make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”
Grooming and dress preferences of religious employees protected: A frequently litigated and debated issue involves the right of a religious employee not to comply with his or her employer’s grooming and dress requirements, where compliance would violate a religious precept. For example, male adherents of traditional Islam and Judaism are not permitted to shave their beards, and (married) females must wear headscarves or shawls to cover their hair, while many employers have strict “grooming” and dress policies that are contrary to these religious precepts. As amended, the Fair Employment and Housing Act will now require employers to “reasonably accommodate” an employee’s religious beliefs regarding clothing and hairstyle, unless the accommodation would pose an “undue hardship” on the business. Employers will also be prohibited from “segregating” religious employees from customers as an accommodation.
Commissions agreements must be in writing: Currently, Labor Code section 2751 only requires employers with “no permanent and fixed place of business” in California to enter into written agreements with their commissioned employees. Now, all employers in California who compensate their employees at least in part by commissions must have a signed written contract with those employees, which should be placed in those employees’ personnel files. The contract must “set forth the method by which the commissions will be computed and paid.”
Employee privacy protections (social media): In the Internet age, some employers have taken to requiring employees to disclose their username or password for their social media (Facebook, Twitter, etc.) accounts or to authorize employer access to their posts as a condition of employment. Labor Code section 980 will prohibit employers from imposing such requirements, and also from requiring employees to divulge any social media (although an employer may “request” that the employee provide social media during an employer investigation into employee misconduct). Employers may not retaliate against employees for refusing to comply with an employer’s request or demand for such information.
These and other changes will require employers to ring in the new year going through their employee handbooks and policy manuals to ensure that they are in compliance with the new laws. Employers who believe that any of the new legislation will require significant changes in the way they conduct business are advised to seek legal counsel to determine the most effective way to ensure compliance.