Legislative News

New Laws for 2009

By Jessica Hawthorne

It's a new year, which means new laws. Almost everyone is aware of the "Notexting" law, but listed below are several other laws that could have an impact on your business.

Cell Phone Use

Since July 1, 2008, drivers have been required to use a hands free device while talking on ac ell phone and driving. Starting January 1,2009, text based communication while driving is prohibited as well, with the same penalties $20 for the first offense and $50 for subsequent offenses. Specifically, the law prohibits writing, sending or reading text based communication including text messaging, instant messaging and email, on a wireless device or cell phone while driving.
- Update your policies, or get the 2009 Employee Handbook software to ensure compliance with these laws.
- Consult with legal counsel regarding the type of policy appropriate for your workforce regarding the use of cell phones while driving.

Minimum Pay for Exempt Computer Professionals

Effective January 1, 2009, Labor Code 515.5 was amended to allow payment to computer professionals as a monthly or annual salary. Before this change, computer professionals had to earn a minimum hourly rate, set by th eDivision of Labor Statistics and Research (DLSR) annually.The change sets a minimum monthly and annual amount for computer professionals who are paid on a salaried basis and who are exempt from overtime. That hourly rate for 2009 is increased from $36.00 to $37.94 and for 2009 the minimum monthly salary exemption = $6,587.50, and the minimum annual salary exemption = $79,050.00.
What Should You Do?

- Review job descriptions of all employees classified as computer professionals to ensure they earn at least the minimum wage and/ or salary for 2009.

Ensure computer professionals who are properly classified as exempt (through job duties and hourly wage) get required meal and rest breaks, as they are only exempt from overtime.

Political Speech

In July 2008, the president of the National Labor Relations Board (NLRB) issued guidelines to employers concerning employee participation in political advocacy activities and providing guidance to employers as to when disciplinary actions for these activities may be appropriate. The guid elines are inresponse to numerous unfair labor practice charges filed by employees in 2006. The charges were filed because the employees were disciplined for leaving work or for being absent from work to participate in demonstrations protesting proposed changes in immigration regulations. The issue centered on whether employees who participated in those demonstrations were engaged in legally protected activity.

The memorandum provides that:
- Non disruptive political advocacy for or against a specific issue, related to a specifically identified employment concern that takes place during employees' own time and in nonwork areas, is protected
- On-duty political advocacy for or against aspecific issue, related to a specifically identified employment concern is subject to restrictions imposed by lawful and neutrally applied work rules
- Leaving or stopping work to engage in political advocacy for or against a specificissue, related to a specifically identified employment concern may also be subject to restrictions imposed by the employer What Should You Do?

All employers are strongly encouraged to consistently apply and enforce all work place rules and disciplinary actions, especially relating to attendance.

When absences to attend political rallies or demonstrations during scheduled work hours are treated in the same manner as any other unexcused absence, the employee's conduct should not be considered protected under the National Labor Relations Act or by the NLRB.

Workers' Comp Injury Reporting

Labor Code section 6409.1 was amended to change the reporting of work related injuries and illnesses. Currently, form 5020 must befiled with the Division of Labor Statistics and Research (DLSR) within five days of an incident. Once the regulations are finalized (because of this new law), insured employers must file a form as prescribed by the Divisionof Workers' Compensation (DWC) with the DWC, and self insured employers must use a new, yet to be created, electronic form within the time specified by the DWC. Amended reports following a death must now be filedw ith the DLSR instead of the DWC. Insurers must use a new, yet to be created, electronic form with the DWC. The bill specifies tha tregulations must be created to implement these changes, which will not go into effect until the regulations are finalized.

What Should You Do?

Talk to your insurance carrier to ensure it uses the most up to date forms.

Keep an eye on HR California Extra for updates on these regulations.

Passport Cards for Identification on I9

The Departments of State and Homeland Security have begun to issue "passport cards" which may be used as a "List A" document to verify employment in accordance with the I9 form. The passport card is more limited in its

uses for international travel (e.g., it may not be used for international air travel), but it is a valid passport that attests to the U.S. citizenship and identity of the bearer. Accordingly, the card may be used for the Form I9 process and can also be accepted by employers participating in the E Verify program. The passport card isc onsidered a List A document that may be presented by newly hired employees during th eemployment eligibility verification process to show work authorized status. List A documents are those used by employees to prove both identity and work authorization whencompleting the Form I9.

What Should You Do?

Ensure that you understand all acceptable documents for proof of eligibility to work in the United States.

Never require employees to present specific forms of identification when filling out the I9.

Maintain I9 Forms in a separate file for easy reference.

Invalid Waivers

A bill amended Labor Code 206.5 making null and void the execution of any release on account of wages due. Employers who violate this law are guilty of a misdemeanor. The new law effective January 1, 2009 adds the following language: "For purposes of thiss ection, 'execution of a release' includes 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 th eemployer knows to be false."Under current law, every employer is required to keep accurate information with respect to each employee including the following:

Full name, home address, occupation and Social Security number.

Birth date, if under 18 years, and designation as a minor.

Time records showing when the employee begins and ends each work period. Mea lperiods, split shift intervals and total daily hours worked shall also be recorded. Meal periods during which operations cease and authorized rest periods need not be recorded.

Total wages paid each payroll period,including value of board, lodging or other compensation actually furnished to theemployee.

Total hours worked in the payroll period and applicable rates of pay. This information shall be made readily available to the employee upon reasonable request.

When a piece rate or incentive plan is ino peration, piece rates or an explanation of the incentive plan formula shall be provided to employees. An accurate production record shall be maintained by the employer. In addition, on a semi monthly basis or at the time each payment of wages is furnished to each employee, employers must, either as a detachable part of the check, draft or voucher paying the employee's wages, or separately,include an itemized statement in writing showing: All deductions

The inclusive dates of the period for which the employee is paid

The name of the employee or the employee's Social Security number

The name of the employer, provided that all deductions made on written orders of the employee may be aggregated and shown as one item. Employers must maintain required records in English and in ink or other indelible form. Records must be properly dated, showing the month, day and year, and must be kept on file by the employer for at least three years at the place of employment or at a central location within the state. An employee's records shall be available for inspection by the employee upon reasonable request. In addition to any other civil penalties provided by law, any employer or any other person acting on behalf of the employer who violates, or causes to be violated, the provisions of this order, shall be subject to the civil penalty of:

Initial Violation $50 for each under paidemployee for each pay period during which the employee was underpaid, in addition to the amount which is sufficient to recover unpaid wages.

Subsequent Violations $100 for each underpaid employee for each pay period during which the employee was underpaid, in addition to an amount which is sufficient to recover unpaid wages.

The affected employee shall receive payment of all wages recovered. The labor commissioner may also issue citations pursuant to California Labor Codesection 1197.1 for nonpayment of wages fo rovertime work in violation of this order. According to supporters of the bill, the intent was to get at the unscrupulous employers who withhold pay until an employee acknowledge sfalse time records. This was already illegal, so this new law muddies the water a bit.

What Should You Do?

Follow legal requirements pertaining to payroll practices.

Maintain accurate time records.

Do not force employees to work off the clock or miss meal and rest breaks, and pay employees on time.

Train supervisors and managers to followand enforce your policies.

Nutritional Information for Chain Restaurants

A new law added section 114094 to the Health and Safety Code. It requires chain restaurants with 20 or more facilities in California to post nutritional information. Beginning July 1,2009, to December 31, 2010, each facility must disclose nutritional information or calorie count information about the food it serves. Nutritional information includes, but is not limited to, all of the following, per standard menu item, as that item is usually prepared and offered for sale: Total number of calories

Total number of grams of carbohydrates

Total number of grams of saturated fat

Total number of milligrams of sodium A food facility that does not provide sit down service shall disclose the information in a clear and conspicuous manner on a brochure that is made available at the point of sale prior to or during the placement of an order. A food facility that provides sitdown service shall provide the nutritional information in a clear and conspicuous size and typeface on at leastone of the following:

A brochure available on the table

A menu next to each standard menu item

A menu, under an index section that is separate from the listing of standard menu items

A menu insert

A table tent on the table

Temporary Employees

Wages for employees of temporary services employers shall be paid weekly or daily if an employee is assigned to a client on a day to day basis or to a client engaged in a trade dispute. This requirement does not apply to employees who are assigned to a client forover 90 consecutive calendar days unless theemployer pays the employee weekly. Failure to do so can result in civil and criminal penalties. Labor Code 201.3 was amended to provide that:

Employee's wages are due and payable noless frequently than weekly, regardless of when the assignment ends, and wages forwork performed during any calendar week shall be due and payable not later than the regular payday of the following calendar week.

If an employee of a temporary services employer is assigned to work for a client on a day today basis, that employee's wages are due and payable at the end of each day. Unless the worker is assigned for more than 90 days.

What Should You Do?

If you are a temporary agency, update yourpayroll practices in light of this new law.

Ensure consistent communication with you rclients to be sure you know the correct hours your employees work.

Exemption for Physicians Paid on Hourly Basis

A licensed physician or surgeon who i sprimarily engaged in performing duties for which licensure is required is exempt from overtime if he/she is paid at least the minimum hourly rate set annually by the state.

Effective January 1, 2009, the minimum hourly rate is $69.13. The current rate can also be found in the California Chamber's Exempt Analysis Worksheet - Professional Exemption.This exemption does not apply to employees in medical internships or resident programs, physician employees covered by collective bargaining agreements or veterinarians.