The 2008 session of the California Legislature failed to produce a state budget, but succeeded in creating several new employment-related bills that were signed by the Governor.  As employment legislation goes, it was a fairly light year.  Some contend that 2008 was the quiet before the storm.  With the country in the deepest “recession” since the Great Depression, layoffs continuing and unemployment at the highest level in decades, it is reasonable to expect that both the state and federal government will increase employment legislation in 2009, and the compliance burden on employers will continue to grow. The following summary highlights several of those bills that will impact employers beginning in 2009.

Wage Agreements And Timesheets (AB 2075) – Prior to the 2008 amendment, the Labor Code prohibited employers from requiring an employee to sign a release of wage claims, unless payment of the wages had been made. This new amendment qualifies the term unlawful “execution of release” based on numerous wage and hour complaints and lawsuits.  California Labor Code Section 206.5 now makes the penalty a misdemeanor violation to require an employee to sign a statement of hours worked containing information the employer knows to be false as a condition of being paid for the hours recorded or worked.  Employers who require employees to certify their hours or submit timesheets attesting to hours not yet worked should evaluate their practices in light of this amendment.

Wages for Temporary Employees (Labor Code Section 201.3) – A new law requires that temporary staffing firms pay temporary workers at least weekly on the regular pay day in the calendar week following the performance of services.  This law also states that a temporary employee whose assignment ends is not due final wages until the next weekly pay date.  There are some exceptions to the law – some employees assigned to positions on a daily basis and workers assigned to a trade or labor dispute must be paid daily.  Additionally, temporary workers on assignments exceeding 90 days may be exempt from some provisions of this law. All employers should ensure the agencies they work with for temporary or casual workers comply with the new law as employees may bring “joint employer” wage claims against both the temporary staffing agency and the client-company.

Computer Exemption (AB 10) - This law broadens the existing requirements for a “computer professional” to be exempt from overtime requirements.  Prior legislation allowed computer professionals to be classified as overtime exempt provided they met exemption criteria and were paid at least $36/hour.  AB 10 allows a “computer professional” to be exempt from overtime if paid on a salaried basis, provided the employee is otherwise eligible for the exemption and is paid an annual salary of not less than $75,000 (or paid at least $6,250 monthly). This exemption continues to be complex and we recommend professional advice on this topic.

Text Messages or E-mail While Driving (SB 28) - Effective January 1, 2009, it will be illegal to write, read or send a text message, e-mail, instant message or engage in any other text-based communication while driving.  The bill imposes a $20 fine for a first offense and $50 for repeat offenders.


New Federal Legislation for 2009
Additionally, there are some key updates to federal employment laws going into effect in 2009.

Family Medical Leave Act (FMLA)/National Defense Authorization Act (NDAA) – The Department of Labor (DLO) has issued its Final Rules regarding the latest changes to FMLA effective January 19, 2009.  This clarifies Military Leaves to care for injured or ill “servicemembers” as well as for exigencies arising from members of the Reserves or National Guard being called into active duty.  The new DOL Rules clarify, in some detail, the notice and certification requirements for both employers and employees as well as many additional clarifications and updates. These rules must be integrated into California’s Family Rights Act.  Please contact our office with questions.

ADA Amendments Act (ADAAA) – This update to the Americans with Disabilities Act (ADA) takes effect January 1, 2009.  It expands the existing lists of major life activities and bodily functions that are covered by ADA as well as mandates that mitigating measures aside from “ordinary eyeglasses or contact lenses” not be used in making a determination of disability. The update clarifies that an employee whose only protected characteristic is being “regarded as” disabled does not entitle the person to a reasonable accommodation.  California employers need only to concern themselves about this update if they have operations out of state as the Fair Employment and Housing Act remains more stringent than the ADAAA.

Employers should update policies to reflect these new requirements.  SharedHR HRMS  and HR Outsourcing clients receive automatic updates to their policies and systems multiple times per year.  The January comprehensive SharedHR updates will interpret and include this changes.

Please contact SharedHR with any questions on compliance or required handbook changes.