Employment Law Update – How up to date are you?
By Daniel Richardson
Is your employee handbook up to date? An up to date employee handbook is important because it outlines for the employee the employer’s policies and procedures as well as establishing the expected standards. Using an employee handbook from the outset of the employment relationship to establish expected standards can be invaluable in litigation if the employment relationship turns sour. Sometimes, an employment handbook may even create an enforceable contract between the employer and employee.
The employment law landscape is constantly evolving. Employers need to ensure that their employee handbooks are updated to reflect new legal developments. Below are some examples of employment law developments that employers should consider incorporating into their employee handbooks.
Since many employees use company-issued technology for personal use and Bring-Your-Own-Device policies have become more common, it is important to create clear policies regarding electronic privacy. As a general rule, an employee has no right to privacy with a company-owned device, but an employer does not have the right to inspect an employee owned computer or other electronic device if it is used primarily for business. It is extremely important for employers to outline in their employee handbooks their expectations for the use of company-owned computer and electronic devices. If the employer issues a computer or other electronic device to employees, the employee handbook should expressly state that the computer or electronic device is property of the employer, the employee has no reasonable expectation of privacy in data stored on that device, and, upon termination, the employee must return the device and not keep a backup of the device’s data.
HourlyEmployees and Overtime
Employers do not have to pay hourly employees for work if the employer does not know the employee is working and the employee does not notify the employer about her work. For instance, if an employee shows up every morning ten minutes before the start of her shift to make coffee, the employer does not have to compensate her for that time if making the coffee was outside of the job description and the employer was unaware that the employee was arriving at work early. However, employees must be compensated when they are required to be at work even if they are not performing their duties.
- Cal. Gov’t Code § 12926 was amended to include in the definition of religious discrimination “religious dress and grooming practices.” Under the amended statute, religious grooming practices are to be construed broadly and include “wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of the observance by an individual of his or her religious creed.” Religious grooming includes “all forms of head, facial, and body hair that are part of the observance of his or her religious creed.” An “accommodation” for an employee’s religious dress or grooming that segregates the employee from the public or other employees is not a reasonable accommodation.
- Employers should be aware that although they can require employees to adhere to a “reasonable workplace appearance,” the employer must allow the employee to “appear or dress consistently with the employee’s gender identity or gender expression.”
Working from Home and Bring-Your-Own-Device (BYOD) Policy
Allowing employees to work remotely or to use their own devices is becoming an increasingly common practice. These policies, however, could render employer trade secrets and other confidential information vulnerable. In one recent Northern District of California case, mere possession of an employer’s confidential information on a former employee’s personal computer and backed up on a personal hard drive did not constitute misappropriation because the employer did not have a policy in place prohibiting retention of the employer’s files after the employee’s position was terminated. At a minimum, employers who implement policies allowing employees to work remotely or use their own devices should address trade secrets and other confidential information in their employment handbook including requiring employees to bring the device in to confirm the deletion of confidential information remaining in their possession when employment terminates.
Covenants not to compete are generally not enforceable in California. There are, however, exceptions. Contractual agreements not to compete are enforceable in certain limited circumstances such as the sale of the business or dissolution of a partnership. If there is a possibility that the business may be sold to an employee, it may be prudent for the employer to consider executing a contract not to compete with that employee.
Employers are now statutorily prohibited from requesting an employee to disclose personal social media information and passwords. Despite this prohibition, there are some exceptions. Employers may request social media usernames or passwords if the employer reasonably believes that the social media would be relevant to an investigation of employee misconduct or if the social media was accessed on an employer-issued electronic device.
For employers that employees that work on commission, employers are required to provide a written employee contract outlining the method for calculating and computing commissions.
Military and Veteran Employees
Effective January 1, 2014, military and veteran status became protected classes for the purposes of employment discrimination.
California’s minimum wage will increase from $8.00/hour to $9.00/hour, effective July 1, 2014.
- Employers are required to give employees ten minute rest periods for every four hours of work. Failure to have either a written or unwritten rest period may be deemed a failure by the employer to authorize rest periods.
- When employees are paid on a piece-rate basis, employers must compensate them separately for rest periods.
Certain computer professionals are exempt from California’s overtime requirements. Beginning January 1, 2014, however, computer professionals who are exempt from California’s overtime requirements must be paid at least $40.38/hour or an annual salary of at least $84,130.53.
Beginning July 1, 2014, paid family leave has been expanded to cover grandparents, grandchildren, siblings, and in-laws.
Employment law is a constantly changing and evolving landscape. The above is only a sampling of recent developments in employment law. A comprehensive employee handbook is one excellent way to clearly define the terms of an employer/employee relationship. Investing the time to stay up to date with new developments in employment law and keeping the employee handbook current can save countless dollars down the road.
ADVERTISING MATERIAL. The purpose of this article is to provide information on legal developments that may affect your business and is not to be considered advice nor does reading this content create an attorney-client relationship.