Labor Law update 2012

Presented by

Martin Levy, SPHR
Human Resources 4U

hrexec@humanresources4u.com
(909) 912-9995
www.humanresources4u.com

Labor Law Trends
 Increased litigation 2010
 Wage & Hours 18%
 Age Discrimination 11%
 Race Discrimination 7%
 Gender Discrimination 6%
 Disability Discrimination 6%
 Increased Government Enforcement
 ICE (I-9)
 IRS (payroll taxes)
 DOL (wage & hour)

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Labor Law Trends
 National Labor Relations Board (NLRB)
 New poster by 4/30/12 (union organizing)
 Social Media postings
 What is “protected concerted” activity?
 Terms and conditions of employment

 Shared concerns to induce group action

 This is a gray area of the law: tread carefully


The New Laws
 Credit Checks  Interference with Rights Under
 Pregnancy Disability Leave Leave Laws
 Willful Misclassification of  Administrative Penalties
Independent Contractors  Wage Penalties
 Written Commission  Insurance Non-Discrimination
Agreements  State Contracts Discrimination
 Notice of Pay Details  Apprentice Programs
 Organ & Bone Marrow Donor  Safe Lifting – Hospitals
Leave  Farm Labor Contractors
 Genetic Information  Agricultural labor Relations
 Genetic Expression
 E-Verify


Credit Checks
Prohibits employers and prospective employers from
using credit checks with limited exceptions.
Financial institutions
Law Enforcement
Access to proprietary or confidential information
Non-routine, regular access to SS#, DOB, etc.
Regular handling of cash in excess of $10,000
Managers as defined under the law


Pregnancy Disability Leave
All covered employers must continue to pay for group
health coverage for up to 4 months in a 12 month period
as if the employee continued working for the company

Previously it was just the same as other leave policies, i.e.
FMLA/12 weeks or whatever your Employee Handbook
stated


Willful Misclassification
There are now new penalties from $5,000 to $25,000 for
“willful misclassification” of independent contractors
 “avoiding employee status by knowingly
misclassifying…”
 Joint penalty on consultants who advise misclassifying


Written Commission Agreements
Requires employers to put all commission pay
arrangements into a signed, written contract

 It must set forth the method by which commissions will
be computed and paid
 Effective 1/1/2103
 My editorial: make sure they are in plain English!


Notice of Pay Details
For non-exempt employees only, notice must be given at the
time of hire that includes:
Rate of pay
Basis (hourly, salary, commission, etc.)
Any allowances claimed (meals, lodging)
Regular pay day
Name of employer, including DBA
Physical address of main office
Company telephone number
Workers’ comp contact information
* If any changes occur, employees must be notified in writing
within 7 calendar days and statute of limitations increased from 1
to 3 years. Model form: DLSE-NTE (12/20/11)


Organ & Bone Marrow Donor
Original law said only 30 days/organ and 5 days/marrow
 Clarifies 2011 law to state that leave days are business
days, not calendar days
 The one year period start on the first day of leave
 You can now require employees to use PTO as well as
sick and vacation leave


Genetic Information
Prohibits discrimination on the basis of genetic
information
 Individual’s genetic tests
 Genetic tests of family members
 Manifestation of disease/disorder in family member

Note: Make sure you have GINA safe harbor language in
your FMLA/CFRA forms


Genetic Expression
 Amends FEHA to further define “gender” to include
both gender identity and gender expression
 Allows employees to dress consistent with both their
gender identity and gender expression

 Note: gender expression is “a person’s gender related appearance and
behavior whether or not stereotypically associated with the person’s
assigned sex at birth.”


E-Verify
 Prohibits State and local governments and agencies
from requiring employers to use E-Verify
 Exceptions:
 When required by Federal law
 As a condition of receiving Federal funds


Interference with Rights
 New language added to CFRA and PDL that makes it
unlawful to interfere or restrain an employee form
exercising their rights under these laws

Note: no real change since this was already illegal
under FMLA


Administrative Penalties
 Allows employees to collect liquidated damages with
complaints brought before the DLSE
 Used to be only the courts were allowed to do this


Wage Penalties (limited scope)
 Increases maximum penalty from $50 to $200 per day
for each worker paid less than the prevailing wage
 Applies only to certain State and Federal contracts


Insurance Non-Discrimination
 Prohibits group health plans from discriminating in
coverage between spouses or domestic partners of a
different sex and spouses or domestic partners of the
same sex


Other laws with limited application
 State Contracts – Gender or Sexual Orientation
Discrimination
 Farm Labor Contractors – wage notices
 Agricultural labor Relations
 Apprentice Programs
 Safe Lifting - hospitals


Workers’ Compensation
 Several positive (for employers) but minor changes
were made to existing WC regulations


Updates
 Brinker postponed until sometime around mid-April
 Computer professional exemption increased to $38.89
per hour
 The DFEH has instituted some new regulations that
make it easier for an employee to file a complaint with
the DFEH


Labor Law update 2012

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