Steven Kesten, Esq.
Employment Law Update for 2013 Part 4
AB 2386 amends California Government Code Section 12926 and makes it clear that breastfeeding is protected by law and discrimination on that basis is illegal.

The new legislation was enacted, in part, to reflect a decision by the Fair Employment and Housing Commission (FEHC) in 2009 in which an employee was terminated because she was nursing her baby during her lunchtime break.

Because the FEHC’s decision was designated as having precedential authority, such discrimination is a violation of FEHA.
Employment Law Update for 2013 Part 3
Two New Discrimination Laws Mean Changes for Policies, Posters
Employers will need to change notices, postings and employee handbook policies related to discrimination and harassment prevention to reflect two recently signed bills, AB 1964 and AB 2386.

Religious Dress/Grooming
AB 1964 amends Government Code sections 12926 and 12940 and clarifies that the Fair Employment and Housing Act’s (FEHA) discrimination protections and reasonable accommodation requirements cover religious dress practices and religious grooming practices.

As stated in the analysis of the bill, the intent is to “provide clarity and ensure that all religions receive equal protection under the law.”

Importantly, the law specifies that an accommodation is “not reasonable” if the accommodation requires segregation of the individual from other employees or the public.

California's Anti-Discrimination Laws are Broadened to Expressly Prohibit Discrimination Based on "Gender Identity" and "Gender Expression"
Various California laws have long outlawed discrimination based on a person's "sex," a term of art that includes a person's "gender." For example, the FEHA prohibits an employer from discriminating against an employee in the terms, conditions or privileges of employment based on that employee's "sex." (Gov. Code, § 12940, subd. (a).) In turn, the FEHA defines the term "sex" to include "pregnancy, childbirth" or "gender." (Gov. Code, § 12926, subd. (p).) Recently, the California Legislature enacted AB 887, which makes broad across-the-board amendments to several California statutes, including FEHA, to address "gender" discrimination.
AB 887 provides that "gender" includes a "person's gender identity and gender expression." Further, "gender expression" means a "persons gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth." Although AB 887 does not define the term "gender identity," legislative history reveals that the term "refers to a person's deeply felt internal sense of being male or female." (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 887 (2010-2011 Reg. Sess.) Aug. 17, 2011, p. 3.)
California laws, including the FEHA, will now expressly prohibit discrimination based on a person's "gender identity" and "gender expression."

Social Media Privacy Legislation Signed
Gov. Edmund G. Brown signed a bill in September prohibiting employers from requiring or requesting employees or job applicants to provide user names or passwords for personal social media accounts so employers can gain access to the accounts.
The new law, AB 1844, also prohibits employers from discharging or disciplining employees who refuse to divulge user names or passwords associated with their personal social media accounts.
The bill is not intended to infringe on an employer’s existing rights and obligations to investigate workplace misconduct.

IRS Releases Guidance on Tip Withholding
The Internal Revenue Service released a questions and answers document (Rev. Rule 2012-18) that provides guidance on how taxes are imposed on tips under the Federal Insurance Contributions Act (FICA).

The guidance includes an explanation of employer and employee obligations. It is the employer’s obligation to withhold “the employee share of FICA taxes on the reported tips from the wages of the employee (other than tips) or from other funds made available by the employee for this purpose.”

The guidance also includes information on:
• The difference between a tip and a service charge for FICA purposes
• What tips must be reported to an employer
• How tips are reported by the employee to the employer
• Liability for unreported tips
Employment Law Update for 2013 Part 2
New 2013 Exempt Classification Rates
California’s Department of Industrial Relations (DIR) announced rate changes for the computer software employee exemption and the licensed physician or surgeon exemption.

The new rates take effect January 1, 2013.
For the computer software employees exemption:
• The minimum hourly rate of pay exemption increased to $39.90 from its previous rate of $38.89
• The minimum monthly salary increased to $6,927.75 from its previous rate of $6,752.19
• The minimum annual salary exemption increased to $83,132.93 from its previous rate of $81,026.25.
For the licensed physician or surgeon exemption:
• The minimum hourly pay for licensed physicians and surgeons increased to$72.70 from $70.86
These rates are tied to the California Consumer Price Index (CCPI) for Urban Wage Earners and Clerical Workers. The 2013 rate changes reflect the 2.6 percent increase in the CCPI.

Appellate Court Agrees With See’s Candy: Rounding Policies OK in California

Last month, the Fourth District Court of Appeal issued an employer-friendly opinion by concluding that, under California law, employers may round employee timecard entries to the nearest-tenth of an hour.

This ruling is particularly important because there is no statute or prior case law that explicitly authorizes this common practice, a practice that is permissible under federal law and followed by California’s labor agency.

In the case, Silva v. See’s Candy Shops, Inc., See’s utilized a timekeeping software system to keep track of its employee’s working hours. The software system required employees to “punch” into the system at the beginning and end of their shift. Adjustments to the timecards were made only in accordance with two See’s policies:
• The nearest-tenth rounding policy; and
• The grace period policy.
A class action lawsuit was brought by a former employee challenging these two policies. See’s was able to demonstrate that its nearest-tenth rounding policy went up and down and, that the policy, over time, did not result in a loss to the employee. Additionally, See’s was able to present evidence that employees knew about the rounding and grace period policies.

San Francisco Minimum Wage Increases in January

The minimum wage in San Francisco will increase to $10.55 per hour, effective January 1, 2013:
• This increase applies to all employers that have employees who perform work in San Francisco, even of you aren’t based on San Francisco.
• Any person who performs at least two hours of work in a particular week for an employer within the city of San Francisco’s geographic boundaries is entitled to be paid the San Francisco minimum wage.
• This applies to all workers, regardless of whether they are legally authorized to work in the United States.
Employment Law Update for 2013


Ten years ago I attended a luncheon sponsored by the Marin County Bar Association. The guest speaker was then former Governor Jerry Brown. Governor Brown made many astute observations during his speech, but one item stands out in my memory. He said that since leaving his position as Governor of California, the State of California had added in excess of 25,000 new laws. As you can see, the pace of new legislation hasn’t abated in the ten years since Governor Brown addressed the Marin County Bar.

Happy holidays and best wishes for a healthy and prosperous new year.


Commission Agreements Deadline
Employers must put all commission agreements in writing by January 1, 2013. Any employee hired to perform work for payment of a commission in California must receive a written contract that includes the method for calculating and paying the commissions.

Passed in 2011, this mandate of AB 1396 applies to employers located inside and outside California. It amended Labor Code Section 2751, which previously applied only to employers with no fixed California location. In 2012, the law was further clarified with respect to what types of plans are excluded from the written commission agreement requirement.

The new law appears simple and straightforward. However, with respect to employees that are paid both an hourly wage and a commission, a number of potential pitfalls within the law could result in wage-and-hour claims filed against employers.

asonable driving distance of the employee’s residence; or (2) provide a copy of the records by mail.