With the advent of 2016, several new California laws will impact employers. These include, but are not limited to:
Prohibition On Use Of E-Verify: E-Verify is an internet-based system that allows employers to determine the eligibility of their employees to work in the United States. The E-Verify system is administered by the United States Citizenship and Immigration Services, the United States Department of Homeland Security (DHS), and the United States Social Security Administration (SSA). New Labor Code section 2814 prohibits employers from using the E-Verify system to check the employment authorization status of existing employees or applicants who have not received an offer of employment, except as required by federal law or as a condition of receiving federal funds. Violation of this new law may subject an employer to a civil penalty not to exceed $10,000 for each prohibited use of the E-Verify system.
Expanded Labor Commissioner Powers: The Labor Commissioner is now able to enforce local laws regarding overtime hours or minimum wage provisions and to issue citations and penalties for violations, except when the local entity has already issued a citation for the same violation. Labor Code Section 2802 pertains to indemnification of employees by employers for expenses or losses incurred by the employee in direct consequence of the discharge of the employee’s duties or as a result of obeying the employer’s directions. In 2016 it also provides a private right of action by the employee to recover these expenditures and authorizes the Labor Commissioner to issue citations and penalties against employers who fail to properly indemnify employees.
Employee Accommodation Requests: It will be an unlawful employment practice for an employer to retaliate or otherwise discriminate against an employee for “requesting” an accommodation for a disability or religious belief or observance, regardless of whether the request was granted.
Discrimination Against Employee Family Members: New Labor Code sections prohibit retaliation against an employee because the employee is a family member of a person who has, or is perceived to have, engaged in any acts protected by law.
Piece-Rate Compensation: Employers will be required to compensate piece-rate employees for rest and recovery periods and “other nonproductive time separate from any piece-rate compensation. Employers must compensate employees for rest and recovery periods at a regular hourly rate that is no less than the higher
of:
(i) An “average hourly rate” determined by dividing the total compensation for the workweek, exclusive of compensation for rest and recovery periods and any premium compensation for overtime, by the total hours worked during the workweek, exclusive of rest and recovery periods;
or
(ii) The “applicable minimum wage,” which is defined as “the highest of the federal, state or local minimum wage applicable to the employment.”
Employers also must compensate their employees for other nonproductive time at an hourly rate that is no less than the applicable minimum wage. “Other nonproductive time” may be determined either through actual records or the employer’s reasonable estimates, whether for a group of employees or for a particular employee, of other nonproductive time worked during the pay period.
The new law also legislates specific requirements for itemized wage statements and provides a “safe harbor” “affirmative defense” provision for employers for violations prior to the end of 2015 provided the employer complies with certain specified requirements by no later than December 15, 2016, which include:
(a) making payments to each of its employees, for previously uncompensated or under-compensated rest and recovery periods and other nonproductive time from July 1, 2012, to December 31, 2015; (b) paying accrued interest; and (c) providing written notice to the Department of Industrial Relations of the employer’s election to make payments to its current and former employees by no later than July 1, 2016.
Equal Pay Act: The new California Fair Pay Act is intended to increase requirements for wage equality and transparency. Generally, comparable employment will require comparable pay, irrespective of gender.
Judgment Enforcement: New law authorizes the Labor Commissioner to use any of the existing remedies available to a judgment creditor and to act as a levying officer when enforcing a judgment pursuant to a writ of execution. It also permits the Labor Commissioner to issue a notice of levy if the levy is for a deposit, credits, money, or property in the possession or under the control of a bank or savings and loan association or for an account receivable or other general intangible owed to the judgment debtor by an account debtor. Thus, should a final judgment against an employer remain unsatisfied after a period of 30 days after the time to appeal the judgment has expired and no appeal of the judgment is pending, the employer cannot continue to conduct business unless the employer has obtained a bond up to $150,000 (depending on the unsatisfied portion of the judgment) and has filed a copy of that bond with the Labor Commissioner. The
bond shall be effective and maintained until satisfaction of all judgments for nonpayment of wages.
These are just a few of the labor laws that will effect employers in 2016. It is therefore essential that employers, as soon as possible, consult legal counsel to ensure their policies are compliant and their employee handbooks are up to date in order to accurately reflect these new laws and protect employers from potential liability for noncompliance.
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