California Employment Law Changes for 2013

California State Capitol, Sacramento

The Legislature and Governor Brown have completed their law-making activities for the 2011-2012 regular legislative session. The following laws that affect employers will become effective January 1, 2013:

Social media: AB 1844 bars employers from requiring or requesting an employee or applicant for employment to disclose a user name or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. It also prohibits retaliation for not complying with a request or demand by the employer that violates the statute. There are exceptions for requests to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, and for requiring or requesting an employee to disclose a user name, password, or other method for the purpose of accessing an employer-issued electronic device. The provisions are codified in new Labor Code section 980.

Elimination of the Fair Employment and Housing Commission: SB 1038 eliminates the Fair Employment and Housing Commission as part of a broad effort to eliminate duplication in state government. It transfers the duties of the Commission to the existing Department of Fair Employment and Housing and to a newly created Fair Employment and Housing Council. It also expands specified powers of the DFEH related to complaints, mediations, and prosecutions, and provides mandatory dispute resolution at no cost.

Accommodation of religious dress and grooming practices: AB 1964 amends the Fair Employment and Housing Act's definition of religious practices that employers are required to reasonably accommodate to include religious dress and grooming practices. "Religious dress practice" shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed. "Religious grooming practice" shall be construed broadly to include all forms of head, facial, and body hair that are part of the observance by an individual of his or her religious creed. An accommodation that would require that person to be segregated from the public or other employees is not a reasonable accommodation. No accommodation is required if it would violate the FEHA or other laws prohibiting discrimination or protecting civil rights.

Further workers compensation system reform: SB 863 amends various provisions of the Workers Compensation Act in the hopes of eliminating waste and improving efficiency. A press release from the Governor's Office described the changes and hoped for savings.

Breastfeeding: AB 2386 amends the FEHA's definition of "sex" to include breastfeeding or medical conditions related to breastfeeding. The effect is to make it unlawful for an employer to discriminate or harass an employee because she is breastfeeding or has medical conditions related to breastfeeding.

Inspecting employment records: AB 2674 requires an employer to maintain personnel records relating to the employee's performance or to any grievance concerning the employee for at least three years, and to provide a current or former employee, or his or her representative, an opportunity to inspect and receive a copy of those records within 30 days of receipt of a written request, except during the pendency of a lawsuit filed by the employee or former employer relating to a personnel matter. An employer need not comply with more than 50 requests for a copy of employee personnel records from an employee representative in one calendar month. The new requirements do apply to an employee covered by a valid collective bargaining agreement if the agreement provides, among other things, for a procedure for inspection and copying of personnel records. In the event of a violation a current or former employee may recover a penalty of $750, and obtain injunctive relief and attorney's fees.

False Claims Act: AB 2492 strengthens the California False Claims Act, which is a tool for fighting fraud and abuse by government contractors, and will enable the state to continue receiving millions of dollars in federal incentive awards for recovering Medi-Cal false billings.