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Labor and Employment Law: What to Expect in 2012

1. Limitations of Employee Credit Checks.

California employers have long enjoyed the right to conduct background checks that included reviewing applicants’ credit reports before extending job offers. This practice, as of January 1, 2012, will no longer be the case — without very specific conditions. This is because a new law has been enacted to avoid excluding applicants based on disparaging reports.

Specifically, the Consumer Credit Reporting Agency Act has been amended to prohibit everybody Employers to review consumer reports unless the employer is a financial institution or is reviewing an application / promotion for an exempt clerical position. If that employer is hiring a person to fill certain positions for the California Department of Justice, to fill a law enforcement position, or a position in which such investigation is required by law (i.e., teaching, etc.), it will be will allow credit checks. Disclosures and consent to obtain such information are still necessary and failure to do so could result in civil penalties and fines.

2. Commission agreements in writing.

Employers offering commission incentives in California can only do so if these agreements have been commemorated in writing signed by an employee. Failure to put commission agreements in writing can expose an employer to fines of up to $ 100 per day.

3. To classify as exempt or not?

Employee misclassification continues to be a focus of litigation, and the 2012 legal changes reflected in federal and state laws will likely raise more concerns than employers have seen in the past. Specifically, SB 459 proposes that California employers be penalized for misclassifying the status of employees to the tune of about $ 25,000 for intentional misclassifications. If the evidence shows that an employer should have known that an employer was not an independent contractor and / or “exempt” rather than “non-exempt”, the company may be required to post a public notice posting the violation. Intentional for up to one (1 year. Additionally, each and every employee found to have jointly participated in any employee misclassification may also be subject to fines and penalties. Federal regulatory agencies such as the IRS have agreed to work with local government to help identify employers who may be subject to penalties for wrongdoing. Without question, we at MMC continue to stress the importance of getting it right when it comes to identifying who in your workforce is an employee and if they are exempt or not Now, more than ever, it may be time to conduct a compensation audit.

4. Domestic partners / spouses entitled to equal protection: for benefits.

The Equal Benefits Act in California stands as one of the most important changes in state laws regarding obtaining benefits for same-sex couples. In the past, some employers limited benefits only to spouses who were in a recognized legal marriage. This meant that for those partners who were in unions that were reeling from the legal status of Proposition 8, they might not be eligible for insurance benefits if they were linked to a partner’s employment. This will no longer be the case on January 1, 2012. Legal amendments to state benefits laws now require coverage to extend to any spouse or partner to also extend to all working spouses / partners, regardless of status. sex.

5. Bone marrow and organ donors entitled to 30 days of unpaid leave.

Organ or bone marrow donor licensing laws also have specialized legislation in 2012. According to AB 272, organ donors in California have up to 30 business days of license and bone marrow donors can enjoy a license of up to five (5) business days within a 12-month period.

6. Pregnancy disability insurance benefits with the right to special protection.

Prior to January 1, 2012, the law allowed women taking pregnancy disability leave to enjoy the same level of benefits as all employees with similar disabilities. However, following the enactment of [arguably] For increased protections for this class of women, California employers in 2012 must now sponsor health care benefits for women on pregnancy leave. In other words, if employees on non-pregnancy-related leave are entitled to employer-sponsored benefits for only up to 12 weeks and must bear all costs to continue benefits at week 13, this rule no longer applies. it will apply to women on maternity leave. . Regardless of the week of leave they have in connection with the delivery, employers must maintain the level of contribution to health care benefits until the employee returns from approved leave.

7. FEHA expanded to provide more protections.

Recently signed SB 559 and AB 887 have been amended to reflect changes to the California Fair Employment and Housing Act (FEHA) in 2012. FEHA will now prohibit employers in this state from discriminating against employees on the basis of genetic information and ” gender expression “. in addition to prohibiting discrimination based on race, religion, [apparent] gender, sex, sexual orientation, perceived medical condition and marital status, among others. The Legislature noted that the range of protection provided by the federal Genetic Information Nondiscrimination Act (GINA) is not comprehensive for California and may result in job loss or refusal to hire based on an individual’s genetic testing, Biological disposition to certain genetic conditions, appearance or behavior related to a person’s gender, whether stereotypically associated with the sex assigned to a person or not.

8. Procedural regulations foreseen by the DFEH.

Effective October 7, 2011, the Department of Fair Employment and Housing (DFEH) has instituted new regulations related to procedures for filing, investigating, and prosecuting discrimination and harassment complaints. DFEH is the state agency charged with enforcing the state’s Fair Employment and Housing Act and handling complaints of discrimination and harassment. In general, the regulations make it easier for complainants to file their complaints and initiate a DFEH investigation. This is because the Department will apply a liberal interpretation to complaints and an employer can no longer argue that an Open Door Policy never resulted in the employee filing the claims alleged in the complaint and thereby discounting the validity. of the employee’s claims. The result may be positive in the sense that fewer plaintiff attorneys can pursue automatic letters of right to sue, which give way to lawsuits, and the Department’s mediation services can make informal resolution more likely to serve as an option. than before. Let’s keep our fingers crossed with optimism that this is the end result.

9. Newsflash: Brinker’s Meal and Rest Periods Case Review.

On November 11, 2011, the California Supreme Court heard the long-awaited Brinker matter that has kept plaintiff and defense labor law attorneys on pins and needles. Briefly, the case raises the question of whether an employer is required to “monitor” the workplace to ensure that meal and rest periods are taken. Interestingly, the Court’s investigation into whether employees maintain more control over their workday when they decide to work alone during lunches or meal periods could indicate that the Court is unwilling to accept that employers have a duty to compel employees. employees to take their lunches and meal periods. . In other words, the suggestion that an employer should force an employee to go out and have lunch, so that they are not subject to penalties and fines, undermines workers’ control over their workday. The Court is not expected to publish its decision until February 2012. This decision is definitely one to consider.

10. Updated the IT Employee Exemption.

Bipartisan legislation introduced in the United States Senate in November could update the Fair Labor Standards Act (FLSA) treatment of computer employee exemptions. Section 13 (a) (17) of the FLSA establishes minimum wage and overtime exemptions for computer systems analysts, computer programmers, software engineers, or other workers with similar skills, provided that specific job duties and compensation for these employees meet certain requirements. Specifically, to qualify for a computer employee exemption under current law, the employee’s “primary duty” must consist of:

  • The application of systems analysis techniques and procedures, including consultation with users, to determine hardware, software or system functional specifications;

  • The design, development, documentation, analysis, creation, testing or modification of computer systems or programs, including prototypes, based on and related to the user or system design specifications;

  • The design, documentation, testing, creation or modification of computer programs related to the operating systems of the machines; gold

  • A combination of the aforementioned duties, the performance of which requires the same level of skills.

In practice, the IT employee exemption does not reflect developments in IT and IT occupations. To remedy the coverage gap, new legislation has been introduced so that any employee who works in a computer science or information technology occupation (including but not limited to work related to computers, information systems, components, networks or sites web) as an analyst, programmer, and the guy would be considered exempt as long as he earns $ 27.63 per hour. This bill is also one to watch for approval.

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