Each year California employers face a flurry of new employment laws. With a new governor, 2013 is no different. The following is a summary of the more relevant and generally applicable new California employment laws.
Social Media Privacy Law for Employees
Employees’ and applicants’ privacy rights regarding social media sites has been one of the most debated issues this year. In response to this debate, California has followed the federal trend by enacting a bill limiting an employer’s access to an employee’s or an applicant’s personal social media. The new legislation prohibits an employer from requiring or requesting an employee or applicant to do any of the following:
• Disclose a username or password for the purpose of accessing personal social media;
• Accessing personal social media in the employer’s presence; or
• Divulging any personal social media.
“Social media” is defined as “an electronic service or account, or electronic content, including but not limited to videos, still photographs, blogs, video blogs, podcasts, instant and text messages, e-mail, online services or accounts, or Internet Web site profiles or locations.”
The legislation prohibits an employer from discharging, disciplining, threatening to discharge or discipline or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates this section.
However, the legislation does not effect an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or an employee’s violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding. The legislation also has no effect on an employer’s existing rights requiring or requesting an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device. Finally, the legislation specifically states that an employer may discharge or otherwise take adverse action against an employee or applicant if otherwise permitted by law.
As most employers know, California requires itemized wage statements with specific categories of information. An employer’s failure to include all the required information on the itemized wage statements exposes it to potential damages. In fact, California Labor Code, §226 provides that an employee “suffering injury” as a result of an employer’s knowing and intentional failure to provide this information is entitled to the greater of all actual damages or specified statutory damages of $50 for an initial violation and $100 per employee for each subsequent violation, not to exceed a total of $4,000.00. However, several California courts have issued conflicting opinions regarding what constitutes “suffering injury” for the purpose of wage statement violations.
In response to these conflicting court opinions, the legislator amended Labor Code §226 to clarify that an employee “suffers injury” if:
• The employer fails to provide a wage statement;
• The employer fails to provide accurate or complete information regarding the specified items on the wage statement and if the employee cannot promptly and easily determine from the wage statement one or more of the following:
o The amount of gross wages or net wages paid to the employee during the pay period or any of the other information required to b provided on the itemized wage statement;
o Which deductions the employer made from gross wages to determine the net wages paid to the employee during the pay period;
o The employer’s name and address; or
o The employee’s name and the last four digits only of his or her social security number or an employee identification number
The legislator defined “promptly and easily” as meaning “a reasonable person would be able to ascertain the information without reference to other document or information.” The legislator also clarified that a “knowing and intentional failure” does not include an isolated and unintentional payroll error due to a clerical or inadvertent mistake.
California currently follows the Federal law regarding wage-withholding limitations. However, effective July 1, 2013, California will increase the amount of a judgment debtor’s weekly earnings that are exempt from levy under an earnings withholding order from thirty (30) times the federal minimum wage to forty (40) times the California minimum wage.
The legislation also provides that the maximum amount of a judgment debtor’s disposable earnings that are subject to levy under an earning withholdings order must not exceed the lesser of either: (1) twenty-five (25%) percent of the individual’s “disposable earnings” for that week or (2) the amount by which the individual’s “disposable earnings” for that week exceeds 40 times California’s minimum wage in effect at the time the earnings are payable. It is important to note that “disposable earnings” is defined as the portion of an individual’s earnings that remain after deducting all amounts required to be withheld by law.
Should you have any questions or concerns regarding these new laws, please do not hesitate to contact me.