BRIAN M.

MCDONALD
ATTORNEY AND COUNSELOR AT LAW
7755 Center Avenue, Suite 1100

Huntington Beach, California 92647

Telephone (714) 372-4955 Facsimile (714)372-4958 brian.mcdonald.esq@gmail.com

NEW CALIFORNIA EMPLOYMENT LAWS EFFECTIVE JANUARY 1, 2012

During Arnold Schwarzenegger's term of office relatively few employment law bills made it off his desk and into law. This has changed under Jerry Brown. As the first year of his term concludes Governor Brown has signed into law several bills that will affect California employers on January 1, 2012.
AB 1236 Prohibits local governments in California from requiring private employers to use the electronic employment verification system (E-Verify) as part of their hiring practices. SB 559 Adds genetic information to the list of prohibited bases for discrimination under the Unruh Civil Rights Act and the Fair Employment and Housing Act. This is largely duplicative of federal law. Applies only to employers who have five (5) or more employees. AB 592 Adds language to the California Family Rights Act (CFRA) and the Pregnancy Disability Leave Law (PDL) that makes it unlawful to interfere with or in any way restrain the exercise of rights under these laws. SB 299 Prohibits an employer from refusing to maintain and pay for health insurance coverage under a group health plan for an employee who takes leave for pregnancy, childbirth, or a related medical condition for a reasonable time of up to four months. Employers can recover the cost of the insurance premiums paid if the employee fails to return to work for reasons within the employee's control. AB 887 Refines the definitions of the words sex and gender as they apply in several California anti-discrimination laws. These terms, as they are newly defined, will now prohibit discrimination on the bases of a persons gender identity and gender-related appearance and behavior whether or not stereotypically related with his or her sex at birth. AB 22 Prohibits the use of credit reports in employment decisions unless the job in question is: (1) a managerial position; (2) a law enforcement officer; (3) a position for which a credit report screening is required by law; (4) a position that requires regular access to confidential information; (5) a position in which the employee will be entitled to enter into financial transactions on the companys behalf; or (6) a position that involves regular access to cash totaling $10,000 or more. This law does not apply to financial institutions and other employers required by law to conduct credit checks. SB 459 Prohibits the willful misclassification of independent contractors and authorizes the Labor and Workforce Development Agency (LWDA) to assess civil penalties against employers who do so ranging from $5,000 to $25,000 for each violation. Also requires employers found to have engaged in such willful misclassification to post for one year following the final decision on its website or in an area available to employees and customers a notice stating: (1) that the LWDA has found that the employer committed a violation of the law by engaging in the willful misclassification of employees; (2) that the company has changed its practice to avoid committing further violations; (3) that any employee who believes that he or she is misclassified may contact the LWDA (along with the LWDAs contact information); (4) that the notice is being made pursuant to state order; and (5) the signature of an officer or owner of the company. These same penalties will apply if the employer charges fees to a misclassified independent contractor where the fees would have been unlawful had the individual been properly classified. Fees could include such things as space [Continued on the reverse] rental, material costs, license fees, and equipment rental. Lastly, the new law imposes joint and several liability on This summary is provided to educate and inform the reader. It is limited to only changes in California law. Not necessarily all new California laws are addressed. This does not constitute legal advice and no attorney-client relationship is created. Each circumstance is different and you should consult with an attorney or other employment professional for your particular circumstances.

consultants other than attorneys who advise an employer to classify an employee incorrectly. Willful misclassification is rather vaguely defined as avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor. AB 1396 -- Requires that all employment relationships involving the payment of commissions "be in writing and shall set forth the method by which the commissions shall be computed and paid." "Commissions" are defined as compensation paid to any person in connection with the sale of the employer's property or services and based proportionately upon the amount or value thereof. "Commissions" do not include short-term productivity bonuses or bonus and profit-sharing plans, unless based on an employer's promise to pay a fixed percentage of sales or profits as compensation. Employers must give a signed copy of the contract to every employee, and must obtain a signed receipt for each contract. The contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party. Failure to comply will subject an employer to an action for penalties of $100 per pay period per aggrieved employee under the Private Attorneys General Act. AB 757 -- Provides that a health care service plan or a health insurance policy may not discriminate in coverage between spouses or domestic partners of a different sex and spouses or domestic partners of the same sex. Moreover, it states that all group health care service plans that are marketed, issued, or delivered in California must comply with California's non-discrimination requirements. SB 117 -- Bars the state of California from entering into contracts in excess of $100,000 with businesses and other entities that deny equal benefits to the same-sex spouses or registered domestic partners of their employees. AB 469 -- Amends and adds several provisions to the California Labor Code to do the following: 1. Authorize the Labor Commissioner to provide for a hearing to recover wages, penalties, and other demands for compensation, including liquidated damages. 2. Expand the statute of limitations for the Labor Commissioner to collect statutory penalties and fees from one to three years. 3. Require farm labor contractors to disclose in an itemized wage statement the name and address of legal entities securing the contractor's services. 4. Permit the Labor Commissioner to require an employer criminally convicted of a wage violation or who fails to satisfy a judgment for unpaid wages to maintain a bond for up to 2 years. An employer who fails to post such a bond may be required to provide an accounting of its assets to the Labor Commissioner. Failure to provide an accounting may result in penalties up to $10,000, while failure to post bond may result in a court order prohibiting the employer from conducting business within California until the bond is posted. 5. Permit an employee to recover attorneys' fees and costs incurred in enforcing a court judgment for unpaid wages due. 6. Require an employer to pay restitution to an employee, in addition to civil penalties, if the employer pays the employee less than minimum wage. 7. Provide that an employer who willfully fails to pay and has the ability to pay a final court judgment or final order issued by the Labor Commissioner for all wages due is guilty of a misdemeanor, and is subject to fines between $1,000 and $20,000, and possible jail time. 8. Require employers to provide each non-exempt employee at the time of hiring with notice of: (a) the rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission or otherwise, including any rates for overtime; (b) allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances; (c) the regular payday; (d) the name of the employer, including any "doing business as" names; (e) the physical address of the employer's main office or principal place of business, and a mailing address, if different; (f) the telephone number of the employer; (g) the name, address and telephone number of the employer's workers' compensation insurance carrier; and (h) any other information the Labor Commissioner deems material and necessary. Public employers covered by a collective bargaining agreement are exempt from notice requirements. Written notice of changes in the above information must be provided to each employee within 7 calendar days of the change unless the change is reflected on a timely wage statement or another specified writing.

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