"2008 was a mild year for California labor and employment law legislation."
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2009
California
Labor & Employment Law
Legislative Update
By Christopher W. Olmsted
Below is a summary of new 2009 California laws relevant to labor and employment law issues.
Cell Phones and Texting – SB 1613 and SB 28
Keep Both Hands On The Wheel And Eyes On The Road
Effective July 1, 2008, Senate Bill 1613 provides that it is illegal to drive a motor vehicle while using a wireless telephone, unless a hands-free device for the cell phone is used. A violation of this law will be punishable by a fine of $20 for a first offense and $50 for each subsequent offense.
The law includes an exception where a person uses the cellular telephone to contact a law enforcement agency or other public safety entity for emergency purposes.
Until July 1, 2011, this prohibition does not apply to a person driving a motor truck or truck tractor, an agricultural vehicle, tow truck, or a commercial vehicle, when using a digital 2-way radio service that utilizes a wireless telephone that operates by depressing a push-to-talk feature as long as it does not require immediate proximity to the user's ear.
In order to minimize liability issues arising from employees using cell phones on the road while in the course and scope of employment or while taking work-related calls, employers should implement a policy that requires all employees to use “hands free” devices while driving on company business. Alternatively employees could be prohibited from using cell phones while driving.
(Note: Got Teenagers? Drivers under 18 are absolutely prohibited from using cell phones while driving under a separate bill, SB 33.)
To protect us from fellow citizens lacking common sense, texting while driving has also become illegal. SB 28, signed by Governor Schwarzenegger on September 24, 2008, amends the California Vehicle Code to state: “A person shall not drive a motor vehicle while using an electronic wireless communications device to write, send, or read a text-based communication.”
What about fumbling with your PDA’s phone directory to dial out a call? That doesn’t count as texting under the new law: “For purposes of this section, a person shall not be deemed to be writing, reading, or sending a text-based communication if the person reads, selects, or enters a telephone number or name in an electronic wireless communications device for the purpose of making or receiving a telephone call.”
The full text of the anti-texting law can be found here: California texting ban.
For a complimentary sample cell phone/texting personnel policy for your handbook, email Chris Olmsted at cwo@barkerolmsted.com
Payroll Update - SB 940
Temporary Agency Payroll Practices
SB 940, effective January 1, 2009, adds Labor Code Section 203.1. The new law requires staffing agencies to pay staff on a weekly basis (with exceptions). Wages for work performed during any calendar week must be paid not later than the regular payday of the following calendar week.
If a temporary assignment ends, the final paycheck is not immediately due, but rather it is due on payday of the next calendar week. For example, if the staffing agency’s regular payday is Friday, and the employee’s assignment ends on Wednesday, the paycheck for Monday through Wednesday is not due until the Friday on the following week.
Note that this new law applies only to staffing agencies and their temporary employees, as defined in the statute. Other companies must follow the traditional rules, even for short term employees. Employers should seek legal counsel regarding DLSE’s enforcement opinion for temporary workers.
There are exceptions in the new law. First, where an assignment lasts longer than 90 consecutive calendar days, the staffing agency need not pay weekly. But then the regular final pay rules would apply. Other exceptions apply to certain day laborers and labor dispute replacements. Such employees must be paid on a daily basis.
Where the temporary employee quits or is discharged, the traditional final pay rules apply. Pay must be provided within 72 hours of notice of a quit, or immediately upon discharge.
Click here for a more detailed report.
Wage & Hour Law – AB 2075
Invalid Pay Waivers
Existing law prohibits an employer from requiring an employee to sign a release for wages earned unless payment of those wages has been made. It is a misdemeanor for an employer to violate the prohibition, and a release executed in violation of the prohibition is null and void.
AB 2075 amends Labor Code §206.5 effective January 1, 2009. The new law expands the definition of a prohibited “release” to include requiring an employee, as a condition of being paid, to execute a statement of the hours he or she worked during a pay period, which the employer knows to be false. This may include, for example, knowingly forcing an employee to sign a false time card that underreports the number of hours worked.
While it is a best practice to require employees to sign time cards, be sure to add a written policy giving employees the right and obligation to refrain from signing false records.
Computer Professionals – AB 10
Salary Exemption
Computer professionals are subject to special overtime exemptions under the California Labor Code if paid a certain minimum hourly rate. A new exemption has been added with the enactment of AB 10, effective January 1, 2009. Labor Code 515.5 will now permit computer professionals to be paid on a monthly or annual salary. In order to qualify for the exemption in 2009, computer professionals must be paid a minimum monthly salary of $6,587.50, and a minimum annual salary of $79,050.
Alternatively, computer professionals may qualify for the overtime exemption if paid a minimum hourly rate, which is set by the Division of Labor Statistics and Research (DLSR) annually. The hourly rate for 2009 is increased to $37.94 from $36.00.
To see the DLSR memo on this topic, click here.
(Note: this exemption does not apply to any IT professional; aside from the pay requirement there are particular job duty requirements. Seek legal advice before classifying a worker under this exemption—mistakes are costly!)
Physician exemption – Minimum Hourly Rate
Pursuant to Labor Code 515.6, certain licensed physicians and surgeons are exempt from overtime pay if certain criteria are met. Among the criteria, the employee must be paid at least the minimum hourly rate set annually by the state. Effective January 1, 2009, the minimum hourly rate is increased to $69.13 from $65.59.
To see the DLSE memo on this topic, click here and scroll to page two.
Workers’ Compensation – AB 2181
Workplace Injury Reports, Labor Code § 6409.1
Existing law requires an employer to file a complete report of every occupational injury or occupational illness to each employee that results in lost time beyond the date of the injury or illness, or that requires medical treatment beyond first aid, with the Department of Industrial Relations, through its Division of Labor Statistics and Research or, if an insured employer, with the insurer, on a form prescribed for that purpose by the Division of Labor Statistics and Research. The current form is Form 5020. (Link to Form 5020.)
The amended law will, instead, require an insured employer to file the report with the insurer on by way of an electronic form prescribed by the Administrative Director of the Division of Workers’ Compensation. The bill provides that these changes shall become effective upon the effective date of regulations adopted by the administrative director to implement these changes.
Immigration – AB 1278
Immigration Expenses
Assembly Bill 1278 added Section 1670.7 to the Civil Code to provide that any provision of a contract that purports to allow a deduction from a person's wages for the cost of emigrating and transporting that person to the United States would be void as against public policy. This law is aimed at human trafficking, but it could also affect employers hiring foreign professionals or technical workers.
More Legal Update articles.
Download entire January Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2009 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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