The following is a brief summary of some of the new laws that are going into effect on January 1, 2012. Employers need to be aware of this changes and how they might affect your business.
Medical Benefits Required During Pregnancy Leave
The California Fair Employment and Housing Act (FEHA) requires employers with five or more full-or part-time employees to provide up to four months of pregnancy disability leave (PDL) for employees who are disabled by pregnancy, childbirth, or related medical conditions. Under the current PDL law, employers are not required to maintain the employee’s health coverage during the PDL leave. There may be a separate requirement to do so for twelve weeks under the Family Medical Leave Act, if the employee is eligible for FMLA leave.
Effective January 1, 2012, the PDL law will independently require an employer with five or more employees to maintain and pay for coverage under its group health plans for the duration of the PDL, up to four months, at the level and under the conditions the coverage would have been provided if the employee had continued in employment continuously for the duration of the leave. If the employer pays the full premium for health coverage, it must continue to do so during the leave.
Wage Information for New Hires
As of January 1, 2012, employers are required to provide the following information to employees at the time of hire:
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The rates of pay and basis, whether hourly, salary, commission, or otherwise, including any rates for overtime, as applicable;
This new law does not apply to exempt employees. The law requires that the Labor Commissioner prepare a template that complies with this notice, and the Labor Commission has indicated that the notice will be posted by mid-December at the DLSE website: http://www.dir.ca.gov/dlse.
Misclassification of Independent Contractors
A new law goes into effect on January 1, 2012 which imposes a fine of between $5,000 and $25,000 for employers who “willfully” misclassify an independent contractor. “Willful misclassification” means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.
The law also makes it unlawful for an employer to charge a misclassified individual a fee or to make deductions from their compensation for any purpose, if the fees would have violated the law if the individual had not been misclassified. A consultant who knowingly advises an employer to treat an individual as an independent contractor to avoid employee status will be jointly and severally liable with the employer if the individual is found to be misclassified.
Employers Cannot Request Credit Reports for Applicants
As of January 1, 2012, employers may no longer obtain consumer credit reports for employment purposes. There are exceptions: if the position is managerial; a position for which the law requires the information contained in the report to be disclosed or obtained; one that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment; one in which the person is or would be a named signatory on the employer’s bank or credit card account or authorized to transfer money or enter into financial contracts on its behalf; one that involves access to confidential or proprietary information; or one that involves regular access to $10,000 or more in cash. Employers must provide the applicant or employee with a written notice to the applicant or employee that specifies which exception applies.
Employers May Not Interfere with PDL or CFRA Rights
Senate bills 299 and 592 will make it unlawful for the employer to interfere with, restrain, or deny the exercise or the attempt to exercise an employee’s rights under the PDL law or the CFRA. Employers should avoid discouraging employees from taking PDL or CFRA leave, or suggesting that they delay PDL or CFRA leave to accommodate your business needs, granting shorter extensions of leave than requested, or otherwise denying or interfering with eligible employees’ requests to take PDL or CFRA leave.
Genetic Information and Gender Identity as Prohibited as Basis of Discrimination
Governor Brown signed a new law, effective January 1, 2012, which expands the Fair Employment and Housing Act to add genetic information as prohibited basis of discrimination. Genetic information is defined as: the individual’s genetic tests; the genetic tests of family members of the individual; and/or the manifestation of a disease or illness in family members of the individual.
The FEHA prohibits discrimination based on “sex,” which includes “gender” defined as gender identity and gender-related appearance and behavior. The FEHA has now been amended to explicitly define “gender identity” and “gender expression” as protected categories. Gender expression is defined as a person’s gender-related appearance and behavior, whether or not stereo-typically associated with the person’s assigned sex at birth. The new amendment also amends the Unruh Civil Rights Act to prohibit business establishments from discriminating on the basis of gender identity and gender expression.
Farm Labor Contractor Information
As of January 1, 2012, employers who are farm labor contractors are required to disclose the name and address of the legal entity that contracted for the FLC’s services to the FLC employees. This information must be disclosed as part of the employees’ itemized wage statements required by Labor Code 226.
The goal of this article is to provide employers with current labor and employment law information. The contents should neither be interpreted as, nor construed as legal advice or opinion. The reader should consult with Barsamian & Moody at (559) 248-2360 or toll-free at (888) 322-2573, for individual responses to questions or concerns regarding any given situation.
SOURCE: BARSAMIAN & MOODY
