On September 27, 2012 California became one of three states in the nation, after Maryland and Illinois, to increase privacy protections for social media users by limiting an employer’s ability to demand employees’ social media usernames, passwords and other information related to their personal social media accounts.
Essentially, Assembly Bill 1844 “prohibit[s] an employer from requiring or requesting an employee or applicant for employment to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media.” The new law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates the provisions of the law. AB 1844 describes “social media” as including videos, photographs, blogs, podcasts, text messages, e-mail, online accounts, and website profiles.
However, AB 1844 does not apply to information used to access employer-issued electronic devices.The bill specifically states that it shall not be construed to preclude an employer from requiring an employee to disclose passwords or usernames for such devices. Similarly, employers are specifically permitted to require employees to divulge social media passwords for the purposes of investigating allegations of employee misconduct.
Govern Brown commented in a Facebook post, “California pioneered the social media revolution. These laws protect Californians from unwarranted invasions of their social media accounts.”
The Bill will add the following text to the Labor Code as Section 980:
980. (a) As used in this chapter, “social media” means an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.
(b) An employer shall not require or request an employee or applicant for employment to do any of the following:
(1) Disclose a username or password for the purpose of accessing personal social media.
(2) Access personal social media in the presence of the employer.
(3) Divulge any personal social media, except as provided in subdivision (c).
(c) Nothing in this section shall affect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.
(d) Nothing in this section precludes an employer from requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device.
(e) An employer shall not discharge, discipline, threaten to discharge or discipline, or otherwise retaliate against an employee or applicant for not complying with a request or demand by the employer that violates this section. However, this section does not prohibit an employer from terminating or otherwise taking an adverse action against an employee or applicant if otherwise permitted by law.
SEC. 2. Notwithstanding any other provision of law, the Labor Commissioner, who is Chief of the Division of Labor Standards Enforcement, is not required to investigate or determine any violation of this act.
Nicely following up the California Supreme Court’s recent decision on meal/rest periods under Brinker, on April 30, 2012, the Court in Kirby v. Imoos Fire (SC S185827 4/30/12) held that the California Labor Code does not authorize the award of attorney’s fees to a party that prevails on claims related to meal/rest period violations brought under Labor Code §226.7.
As a general rule, a prevailing party may only recover his/her attorney’s fees when authorized by statute or pursuant to an agreement between the parties. In Kirby, the Court examined two attorney’s fee provisions of the California Labor Code (‘Code’) in relation to claims for meal/rest period violations under Code §226.7. First, Code §218.5 allows for two-way attorney’s fee-shifting (in favor of the employer or the employee), awarding attorney’s fees to a prevailing party in any action ‘brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.’ However, this section does not apply to actions under Code §1194, which provides for the awarding of attorney’s fees only to employees who prevail in an action for unpaid minimum wages or overtime pay.
In Kirby, plaintiff’s sixth cause of action against Imoos Fire was for failure to provide rest periods under Code §226.7. The question the Court addressed is whether a Code §226.7 meal/rest period violation claim also fell under either Code § 218.5 or §1194 and thus allowed for the awarding of attorney’s fees.
The Court concluded that §1194 does not authorize an award of attorney’s fees to employees who prevail on an action related to meal/rest period violations because §1194 covers nonpayment of minimum wage and overtime compensation only. Further, the Court determined that §226.7 relates to meal/rest period violations and, therefore, nonpayment of wages as contemplated by §218.5 is not the focus of the protections offered in the section. Therefore, since meal and rest period violation claims are not claims brought for nonpayment of wages within the meaning of §218.5, the Court held that neither party to the action under §226.7 is entitled to attorney’s fees.
To listen to the webinar discussing what the Brinker decision means to Employers. Please click on the following link:
On April 12, 12, the California Supreme Court in Brinker Restaurant Corp. v. Superior Court (SC S1663504/12/12) finally decided the longstanding question of whether California employers are required to police their employees to ensure that they take no work is performed during their meal period.
In a unanimous opinion, the Supreme Court resolved uncertainty over the scope of the employer’s obligation to provide employees meal and rest periods under the Industrial Welfare Commission’s (IWC) wage orders and California’s Labor Code. The Court concluded that employers have a duty to relieve employees of all duty during the meal period so that employees are free to use it for whatever purposes they choose. However, the court held that neither the labor code nor the IWC wage orders compel California employers to ensure that no work is done during meal periods. The court summarized employers meal period obligations as follows:
“The employer satisfies this obligation if it relieves its employees of all duty, relinquishes control over their activities and permits them a reasonable opportunity to take an uninterrupted 30-minute break, and does not impede or discourage them from doing so.[…]the employer is not obligated to police meal breaks and ensure no work thereafter is performed. Bona fide relief from duty and the relinquishing of control satisfies the employer’s obligations, and work by a relieved employee during a meal break does not thereby place the employer in violation of its obligations and create liability for premium pay.”
Further, the court decided a related issue regarding when meal periods must be provided. The court held that, absent a meal break waiver, a first meal break must fall no later than five hours into an employee’s shift, but an employer need not schedule meal breaks at five hour intervals through the shift.
With respect to rest periods, the court determined that employees are entitled to 10 minutes of rest for shifts from 3 ½ -6 hours long, and another 10 minute break for shifts from 6-10 hours long. These rest breaks do not have to fall specifically before or after any meal period. Employers must make a good faith effort to authorize and permit rest breaks in the middle of each work period, “but may deviate from that preferred course where practical considerations render it infeasible.”
For more information, attend a free webinar on Monday, April 23, 2012 from 4:00 p.m. to 5:00 p.m. PDT, hosted by Ethos Human Capital Solutions and Merhab Robinson & Jackson, A Professional Corporation. To sign up, click on this link: http://events.r20.constantcontact.com/register/event?oeidk=a07e5tfagqh0aa95b93&llr=6ogfnocab
Click here to read about significant changes in employment laws for California employers.
California employers must be prepared to comply with these and other bills that impact employment law. Most of the new laws signed by Gov. Brown take effect January 1, 2012. This does not give employers much time to come into compliance. Contact us to find out what procedures you need to implement and what policies you need to update before the start of the New Year.
WAGE THEFT PREVENTION ACT of 2011 – PAY RATE NOTICES REQUIRED
AB 469 amends and adds several sections to the California Labor Code. Significantly, employers should note the new Labor Code section 2810.5 which requires an employer to provide each new nonexempt employee with a written notice at the time of hire containing the following:
(1) pay rate, basis (whether hourly, salary, commission etc.) and overtime rate,
(2) if applicable, allowances claimed as part of the minimum wage, including meal or lodging
(3) regular paydays designated by employer
(4) name of the employer, including any DBAs used by employer
(5) the physical address and telephone number of employers main office or principal place of business, and a mailing address, if different, and
(6) the name, address and telephone number of the employer’s workers’ compensation carrier.
Changes to any such information must be set forth in a written notice to employees within 7 days of the changes, unless the changes are reflected on a wage statement or other writing required by law to be provided. The Labor Commissioner has been tasked with creating a template for employers to use in compliance with the new notice requirements. Employers should take steps to promptly implement the new notice requirements. These requirements do not apply for exempt employees, but if the employee is misclassified as exempt than this adds yet another issue for employers that are found liable for misclassification. We can help you ensure your employees are properly classified and can help you draft notices that comply with these new requirements for nonexempt employees. Contact our office for assistance.
In addition, this bill contains several provisions which create new penalties or increase existing penalties for violations. For instance, any employer who pays employees less than the minimum wage proscribed by the applicable California wage order is subject to paying the employee restitution of wages. The law also increases the statute of limitations for the DLSE to collect penalties from 1 to 3 years.
GENDER IDENTITY AND EXPRESSION AS PROTECTED CLASSES
AB 887 updates the definition of gender to also mean a person’s gender identity and gender expression. Gender expression is modified to mean a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. The new law amends the Fair Employment and Housing Act, the Unruh Civil Rights Act, and other nondiscrimination laws to include gender identity and expression as distinct protected classes. The updates make it clear that discrimination on the basis of gender identity and expression is prohibited. Employers must allow an employee to appear or dress in a manner consistent with the employee’s gender expression. Employers should review and update any uniform, dress and appearance policies.
NO DISCRIMINATION OF HEALTH PLAN COVERAGE
Current laws require health care service plans and health insurance policies to provide coverage to registered domestic partners of employees and/or policyholders that are equal to the coverage provided to the spouse of those persons. This new law provides that health plans may not discriminate between spouses or domestic partners of a different sex and spouses or domestic partners of the same sex.
E-VERIFY NOT REQUIRED UNDER CALIFORNIA LAW
The E-Verify Program of the United States Department of Homeland Security enables employers to use the program, voluntarily, to verify employees authorized to work in the U.S. AB 1236 prohibits the state (or city or county) from requiring employers to use an electronic employment verification system, such as E-Verify, unless required by federal law or as a condition to receive federal funds. The law bars making the use of E-Verify a condition of receiving a California government contract or a California business license. However, federal legislation that conflicts with this bill is currently pending. If passed, the federal Legal Workforce Act could trump California law on this issue and force employers nationwide to use a system like E-Verify. For the time being, California employers have the right to choose, but be on the lookout for updates and changes in the future.
INTERFERENCE OR RESTRAINT OF EMPLOYEE LEAVE UNDER MOORE-BROWN-ROBERTI FAMILY RIGHTS ACT
The Moore-Brown-Roberti Family Rights Act makes it an unlawful employment practice for employers to deny a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee (2) to care for the employee’s parent, spouse, or child who has a serious health condition, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. AB 592 will make it unlawful for an employer to interfere with, restrain, or deny the exercise of, or the attempt to exercise, any protected rights under the Family Rights Act.
WAGE STATEMENTS FOR FARM LABOR CONTRACTORS
Employers are required to give employees itemized wage statements listing several required items. AB 243 expands the information that must be included on itemized wage statements, but only for Farm Labor Contracts. The new law requires farm labor contractors to disclose in the itemized statement the name and address of the legal entity that secured the employer’s services. Willful violation of the bill’s provisions will be a crime. The bill amends Section 226 of the Labor Code.