California Governor Jerry Brown has signed into law new requirements specifying when and how employers must respond to their employees’ requests for inspection and copying of their personnel files. The new requirements become effective January 1, 2013.
Articles about California Labor And Employment Law.
At this month’s general election, 59 percent of the voters in the City of San Jose, California approved an initiative measure to institute a $10 per hour minimum wage for covered employers and employees. The ordinance1 will take effect in early 2013, raising San Jose’s minimum wage to two dollars an hour more than California’s minimum wage.
In a case that will impact employers whose employees use their own vehicles for work, the California Supreme Court is about to address whether an employer’s insurance covered a deadly automobile accident caused by an employee driving his own car. American States Ins. Co. v. Ramirez, No. S205073 (Cal. Oct. 24, 2012). The Court will consider whether a form included with the employee’s own insurance policy documents that listed him as a driver was part of the insurance policy, even though the employee’s vehicle was not listed as a covered vehicle in the policy’s declarations. The Court also will review whether this form created an ambiguity in coverage that should be construed against the insurer.
Amendments to the California Labor Code impose new wage reporting requirements on “temporary services employers” and allow all employees to recover statutory penalties for violations, even where they suffer no actual loss in wages as a result of a deficiency in a wage statement.
California Labor Code sections 515.5 and 515.6 provide that certain computer software employees, as well as licensed physicians and surgeons, are exempt from state overtime requirements if they receive a minimum hourly, monthly, or yearly rate. The rate is determined annually based upon changes to the California Consumer Price Index for Urban Wage Earners and Clerical Workers. Because the Index experienced a 2.6% increase from August 2011 to August 2012, the California Division of Labor Standards Enforcement (DLSE) adjusted the rates these individuals must be paid to be considered overtime-exempt.
In See’s Candy Shops, Inc. v. Superior Court, the California Court of Appeals for the Fourth Appellate District explicitly held that in California employers are entitled to use a timekeeping policy that rounds employee punch in/out times to the nearest one-tenth of an hour (a “nearest-tenth rounding policy”) if the rounding policy is “fair and neutral on its face” and “is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” The court adopted the standard used by both the United States Department of Labor and the California Division of Labor Standards Enforcement, bringing “sweet” news to employers who use rounding policies.
In See’s Candy Shops, Inc. v. Superior Court, the California Court of Appeal for the Fourth Appellate District explicitly held that in California employers are entitled to use a timekeeping policy that rounds employee punch in/out times to the nearest one-tenth of an hour (a “nearest-tenth rounding policy”) if the rounding policy is “fair and neutral on its face” and “is used in such a manner that it will not result, over a period of time, in failure to compensate the employees properly for all the time they have actually worked.” The court adopted the standard used by both the United States Department of Labor and the California Division of Labor Standards Enforcement, bringing “sweet” news to employers who use rounding policies.
A human resources director who never signed her employer’s arbitration agreement, concealed that fact from her employer, and resigned her job could not be required to arbitrate her claims for wrongful termination and sexual harassment, the California Court of Appeal has ruled. Gorlach v. The Sports Club, No. B233672 (Cal. Ct. App. Oct. 16, 2012). The Court affirmed the denial of the employer’s motion to compel arbitration.
California Labor Code section 132a, the anti-retaliation provision of the state workers’ compensation statute, has commonly been used to support a tort claim for wrongful termination in violation of public policy. Plaintiffs often argue at the demurrer stage that the California Supreme Court’s decision in City of Moorpark, 18 Cal. 4th 1143 (1998), provides the basis for such relief. City of Moorpark, however, never actually addressed the specific issue of whether Labor Code section 132a could properly form the basis for such a tort claim. A recent decision by a California Court of Appeal, Dutra v. Mercy Medical Center Mt. Shasta, No. C067169 (Sept. 26, 2012), focused on that inquiry and determined that a plaintiff cannot avail herself of section 132a as the basis of a tort action for wrongful termination. The Court of Appeal’s decision permits an employer to attack the complaint at its initial stages and close off an avenue commonly used by plaintiffs to maintain civil actions for wrongful termination claims related to workers’ compensation actions.
Owner-operator truck drivers were not required to arbitrate whether they were misclassified as independent contractors in violation of the California Labor Code, where each of the parties’ arbitration agreements applied to any dispute that arose “with regard to its application or interpretation,” the California Court of Appeal has held. Elijahjuan v. Superior Court, No. B234794 (Cal. Ct. App. Oct. 17, 2012). The Court found the drivers’ statutory claims fell outside of the agreements’ scope and reversed the trial court’s order compelling arbitration. The dissenting Justice took issue with the majority’s narrow reading of the arbitration agreements, noting that it “ignored well-settled law favoring arbitration.”
After a series of alleged incidents reported in the news media of employers (principally public employers) requesting or requiring access to employees’ or applicants’ personal social media accounts, legislators around the country rushed to introduce legislation in response to the public outcry. Maryland and then Illinois enacted the country’s first two “password protection” laws. On September 27, 2012, California Governor Jerry Brown signed into law the nation’s third such law that generally prohibits employers from requiring or requesting that an employee or applicant provide access to personal social media content. Unlike the Illinois and Maryland laws, however, California’s law embodies a more balanced approach, taking into account employers’ legitimate business interests. It is effective January 1, 2013.
Ruling a recruiter was a commissioned salesperson because his job involved sales and his compensation was based on those sales, the California Court of Appeal, Fourth Appellate District, has rejected an employee’s claims for unpaid overtime and meal period premium pay against his employer on behalf of himself and a class of current and former employees. Muldrow v. Surrex Solutions Corp., No. D057995 (Cal. App. 4th Dist. Aug. 29, 2012). The Court found the employees were subject to California’s commissioned employee exemption and affirmed the judgment in favor of the employer.
California Governor Jerry Brown recently signed into law AB 2492, amending California’s False Claims Act to better conform it to requirements of the federal False Claims Act.1 In addition to amending definitions of “conduct” that would fall under the provisions of the new law, civil penalties are also increased for each violation. The new changes also make it easier for employees who themselves violate the Act to file suit against an employer based on the employee’s prohibited conduct and be awarded a share of the proceeds of the action. Courts can, however, reduce the award based on the employee’s conduct.
The favorable outcome for some employers in Arechiga v. Dolores Press, 192 Cal. App. 4th 567 (2011), which we previously discussed, has been undone by the California Legislature. In Arechiga, a California Court of Appeal ruled that a non-exempt employee’s salary could provide compensation for more than 40 hours of work in a week.
The members of the California State Senate and Assembly introduced 1,899 bills this year, and the legislature passed and sent to the governor 568 of them. On September 30, Governor Jerry Brown completed his work of signing or vetoing the bills presented to him.