Well, the California legislature is definitely doing a good job of keeping employers on their toes! Below are several developments in the field of employment law for 2013:
1. Written Contracts Now Required for Commission-Based Pay Employees – California Labor Code section 2751 became effective on January 1, 2013 and requires all employers to have written employment contracts with employees who receive any commission-based pay. It is necessary for the employer to sign the contract and provide a copy to the employee. The employee must also sign an Acknowledgment of Receipt. The contract may also take the form of a commission plan, signed by both the employer and the employee. At a minumum, the contract or commission plan should address the following key terms:
- The time period covered by the agreement or commission plan;
- How commission is to be calculated – remember that in commission plans, compensation is based on a percentage of the price of the product sold;
- When a commission is deemed to be earned;
- Any conditions that must be met prior to earning commission;
- When commissions will be paid; and
- What happens to commissions that have not yet been paid if or when the employment relationsip ends.
2. Protection for Breastfeeding Employees – The California Fair Employment and Housing Act (FEHA) already prohibited discrimination based on “sex.” The prior definition of “sex” included gender, pregnancy, childbirth, and related medical conditions. The California legislature has expanded the meaning of “sex” to now include protection of employees “breastfeeding or medical conditions related to breastfeeding.” In addition, employers cannot take adverse actions against employees who are breastfeeding, such as pay deductions or disciplinary action. Employers also cannot create a hostile environment for those employees who are breastfeeding. This does not, however, require employers to pay for lactation breaks in excess of regularly mandated break times already provided by employers.
3. Accommodation of Religious Dress and Grooming Practices – Recent revisions to the California Government Code prohibits employers from discrimination based on religion, including religious dress and grooming practices. “Religious dress practice” is broadly construed to include “the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.” “Religious grooming practice” includes “all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed.” In addition, under the new laws, an employer cannot hide employees wearing religious dress in a back room or office.
4. Right to Wage Statements and Personnel Files – The state legislature has revised the Labor Code with regards to employees’ rights to wage statements and personnel file records as follows:
- First, the new law states that employers need to keep complete wage statement records for a period of 3 years, and that the records must include the following 9 items: (i) gross wages; (ii) total hours worked for non-exempt employees; (iii) the number of pieces and applicable rate for piece-rate workers; (iv) deductions; (v) net wages; (vi) pay period dates; (vii) employee name and ID number; (viii) name and address of employer; and (ix) all applicable hourly rates and hours worked at each rate. Computer-generated records satisfy this requirement as long as they include all the information required by law on the wage statements.
- Second, the new law gives current and former employees the right to receive a copy of their personnel file. A copy must be provided within 30 days of a written request by the current or former employee. Further, the law clarifies that personnel files must be retained for a period of not less than three years post-termination, and imposes a $750 penalty on an employer who doesn’t comply with a requesting employee’s request for a copy of a personnel record.