2005 was a slow year for new employment-related legislation, and much of the new legislation is limited to certain types of employers or employees. Here is a synopsis of the more notable legislative activity.
Computer Professional Exemption Clarified
Existing law provides that employees in the computer software field may qualify for overtime exemption if certain conditions are met. One of those conditions is that the employee’s hourly rate of pay is not less than $41. A new law now clarifies that this condition is met if the employee’s hourly rate is not less than $41 or the annualized full-time salary equivalent of that rate, provided that in each workweek the employee receives not less than $41 per hour worked. Note that, under both the old and the new laws, an employee in the computer software field is not exempt from overtime requirements unless all of the following additional conditions are met:
1. The employee is primarily engaged in work that is intellectual or creative and that requires the exercise of discretion and independent judgment. 2. The employee is primarily engaged in duties that consist of one or more of the following: A. The application of systems analysis techniques and procedures, including consulting with users to determine hardware, software, or system functional specifications. B. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on and related to user or system design specifications. C. The documentation, testing, creation, or modification of computer programs related to the design of software or hardware for computer operating systems. 3. The employee is highly skilled and is proficient in the theoretical and practical application of highly specialized information to computer systems analysis, programming, and software engineering.
Deadline For Filing Fair Employment And Housing Act Claims Extended For Minors The Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment and retaliation. Under current law, an employee who believes that her employer violated FEHA must file a complaint with the Department of Fair Employment and Housing within one year from the date upon which the allegedly unlawful conduct occurred. Effective January 1, 2006, this period is extended for up to one year after the employee reaches age 18.
Final Wages May Now Be Paid By Direct Deposit
Existing law has long allowed an employer to pay wages by direct deposit, so long as the employee has voluntarily authorized direct deposit. Final wages, however, could not be paid by direct deposit. Effective January 1, 2006, Labor Code section 213 has been amended to provide that final wages may be paid by direct deposit, so long as the employer complies with all other requirements regarding the payment of final wages.
When an employer pays an employee’s wages, the employer must furnish the employee with an accurate itemized statement showing, among other things, the name of the employee and his or her social security number. By January 1, 2008, existing law requires the employer to include no more than the last four digits of the employee’s social security number or an existing employee identification number other than a social security number. This law has been clarified to provide that, by January 1, 2008, the employer must include on the itemized statement the last four digits of the employee’s social security number or an employee identification number other than a social security number. In other words, if you were intending to comply with the new requirement by including the last three digits of your employees’ social security numbers on their statements, you now need to include the last four digits.
Unruh Civil Rights Act Expanded
The Unruh Civil Rights Act generally prohibits business establishments from discriminating on the basis of sex, race, color, religion, ancestry, national origin, disability or medical condition. The Act has now been expanded to explicitly prohibit business establishments from discriminating on the basis of marital status or sexual orientation.
Service Of Labor Commissioner Complaints, Notices And Decisions
The Labor Commissioner is authorized to investigate employee complaints and provide for a hearing in any action to recover wages, penalties and other demands for compensation. A new law provides that, in such proceedings, the complaint, notices, and decision may be served by leaving a copy of the document at the home or office of the person being served and thereafter mailing a copy of the document to the person at the place where a copy was left. This new law was enacted to address the problem of employers who tried to avoid personal service of labor commissioner documents by refusing to sign for the documents.
Public Works Payroll Records
Existing law provides for the payment of prevailing wages on certain public works, and requires each contractor and subcontractor performing work on a public work to keep payroll records regarding his or her employees. Senate Bill 759 amends this requirement by specifying that the payroll records may consist of printouts of payroll data that are maintained as computer records, if the printouts contain the same data and are verified in the same manner as required for other payroll records.
DLSE Proposes New Regulation Clarifying Meal Period Requirements
By Kim Johnston
Existing law requires that an employee who works more than five hours a day must be provided with a meal period of not less than 30 minutes, except that if the total work period per day is no more than six hours, the meal period may be waived by mutual consent. An employee who works for more than 10 hours a day must be provided with a second meal period of not less than 30 minutes, except that if the total hours worked are no more than 12 hours, the second meal period may be waived by mutual consent, but only if the first meal period was not waived. To give you an idea of how costly violating this law can be, a jury in Oakland recently awarded $172 million to thousands of employees who claimed that Wal-Mart denied them these required meal periods.
The Division of Labor Standards Enforcement (DLSE) has proposed a new regulation clarifying an employer’s obligation to provide meal periods to its employees. The proposed regulation defines the term provide as “to supply or make available a meal period to the employee and give the employee the opportunity to take the meal period.” The proposed regulation clarifies that an employer is deemed to have provided a meal period to an employee if the employer: (1) has informed the employee, either orally or in writing, of his or her right to take a meal period; (2) gives the employee the opportunity to take the meal period; and (3) maintains accurate time records. Notwithstanding these three criteria, an employer may still establish by a preponderance of the evidence that a meal period was in fact actually supplied or made available to the employee and the employee was in fact actually given the opportunity to take the meal period.
The proposed regulation also clarifies when the required meal period(s) must begin. For employees who work more than five hours but no more than six hours per day, the meal period must be provided during the sixth hour of work, but may be provided earlier. For example, if an employee works from 8 a.m. to 2 p.m., the 30 minute meal period must be provided between 1:01 p.m. and 2:00 p.m., but may be provided earlier. Moreover, the employer and employee can mutually waive the employer’s obligation to provide a meal period.
For employees who work more than six hours but no more than 10 hours per day, the meal period must be provided before the completion of the sixth hour of work. The employer cannot waive its obligation to provide the meal period. However, an employee may initiate a request for approval from the employer to: (A) not take the meal period for that day; or (B) take only a portion of the meal period for that day. The employer has the discretion to approve or deny the request. The employer’s approval or denial of such request is not a violation of the employer’s duty to provide a meal period.
For employees who work more than 10 hours but no more than 12 hours per day, the employer must provide a second 30 minute meal period. The second meal period may be provided anytime between 10 hours and 1 minute and 12 hours. If the total hours worked are no more than 12 hours, the employer’s obligation to provide a second meal period may be waived by mutual consent of the employer and the employee, but only if the first meal period was not waived.
The DLSE’s proposed regulation has already undergone two rounds of rather substantial revisions. The DLSE is currently considering comments to the most recent version of the proposed regulation, and may revise the proposed regulation yet again. As soon as the regulation is finalized and adopted, we will update you on its requirements in a future edition of this newsletter.