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HOT TOPICS AND ACTION ITEMS FOR 2013. What Will We Cover?. New laws and regulations Religious dress; social media; pregnancy; disability Old laws that take effect this year Health care Trends and developments National Labor Relations Board Discrimination. Action Items!.

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What will we cover
What Will We Cover?

  • New laws and regulations

    • Religious dress; social media; pregnancy; disability

  • Old laws that take effect this year

    • Health care

    • Trends and developments

    • National Labor Relations Board

    • Discrimination

California new laws and regulations
CALIFORNIA – New Laws and Regulations

New in ca religious dress grooming
New in CA: Religious Dress, Grooming

  • Protected by FEHA

    • Religious clothing

    • Jewelry

    • Facial hair

  • Segregation prohibited

    • Do not isolate protected employees from customers, public or coworkers

Personal social media protected
Personal Social Media Protected

  • Cannot require:

    • Disclosure of user names, passwords

    • Personal social media access in front of manager

  • Exceptions

    • Request to current employee as part of investigation; reasonable belief access will result in relevant information

    • Electronic device issued by employer

Pregnancy disability leave
Pregnancy Disability Leave

New regulations as of Dec. 30, 2012

Increased Eligibility

  • 4 months of PDLper pregnancy, not year

  • No discrimination against “perceived” pregnancy

  • Examples of pregnancy-related disabilities

    • Bed rest, gestational diabetes, loss of pregnancy


Pdl regulations continued
PDL Regulations (continued)


  • In past, denial if holding job would undermine business

  • Now, refusal to reinstate ok only if employee would not have been employed in same position for legit business reason unrelated to pregnancy (e.g. layoff)

  • If job eliminated, provide notice of available jobs

  • “available” = open within 60 days of scheduled return

Sex discrimination and breastfeeding
Sex Discrimination and Breastfeeding

  • “Sex” under FEHA includes breastfeeding and related medical conditions

  • Post updated Workplace Discrimination and Harassment poster (mandatory)

Production of personnel records
Production of Personnel Records

  • Previously, employee could inspect most personnel records and obtain copies of signed documents

  • Now, employeeor the employee’s representative (with written authorization from employee) can obtain copies of personnel records

Production of Personnel Records (continued)

  • All requests to inspect/receive personnel records must now be in writing

  • Employer has 30 calendar days from date of receipt of written request; can be extended to 35 days by agreement

  • Employees under CBA that has provisions for inspection of personnel records cannot make 1198.5 requests

  • Penalty for noncompliance: $750

Itemized wage statements
Itemized Wage Statements

  • Must retain exact copies of itemized statements provided to employees, or computer-generated records of all the same info, for at least 3 years

  • Penalty of up to $4,000 for incomplete or inaccurate wage statements

Federal new laws and regulations
FEDERAL –New Laws and Regulations

Patient protection affordable care act
Patient Protection Affordable Care Act

  • January 1, 2013– Employers filing 250 or more W-2 forms must report the total cost of their group health benefit plan coverage on the W-2 forms

  • January 1, 2013 – $2,500 cap/employee on Flexible Spending Accounts (regardless of the number of individuals covered)

Ppaca continued
PPACA (continued)

  • March 1, 2013 – Newly hired employees must be provided the Notice of Exchange, including:

  • existence of an Exchange + description of the services provided + how to contact the Exchange

  • if employer plan’s share of total benefit cost is less than 60%, employee may be eligible for a premium tax credit or a cost-sharing reduction through the Exchange

  • employee may lose any employer contribution toward the cost of coverage and all or a portion of employer contributions to coverage may be excluded from federal income tax

Health care action items
Health Care Action Items

  • Ensure your 2012 W-2s include the total cost of their group health benefit plan coverage, if applicable

  • Ensure your Flexible Spending Accounts have a $2,500 cap per employee

  • Start preparing your Notice of Exchange information to be provided to employees hired on or after March 1, 2013 (be on the lookout for model notices)

  • Plan on attending the “Healthcare Reform Update” on February 21, 2013

National labor relations act
National Labor Relations Act

  • “Concerted activity”: Two or more employees acting together to improve their terms and conditionsof employment

  • Applies to both union and non-union employees

Nlrb and social media
NLRB and Social Media

  • Social media websites = modern-day water coolers

  • Complaints about boss, wages, safety issues, etc. are protected

  • Ensure social media policy does not discourage protected concerted activity

Nlrb and at will policies
NLRB and At-Will Policies

  • “I agree that the at-will relationship cannot be amended, modified, or altered in any way.”

  • Problem: Union contract might change at-will status

  • Solution: Employer can modify status

  • Review and revise at-will policy (handbook, offer letter, forms) regarding modification of at-will status, if necessary

Nlrb and internal investigations
NLRB and Internal Investigations

  • Right to self-organize includes right to discuss discipline or disciplinary investigations

  • Need “legitimate and substantial business justification” for requiring confidentiality:

    • Witness needs protection

    • Evidence is in danger of being destroyed

    • Testimony may be fabricated

    • Need to prevent a cover up

  • Case by case

Investigation action items
Investigation Action Items

  • Review and modify practices and policies regarding confidentiality instructions

Discrimination trends and developments
Discrimination: Trends and Developments

Trend unemployment discrimination laws
Trend: Unemployment Discrimination Laws

  • In 2011, the EEOC considered unemployment discrimination but did not issue an opinion

  • No Federal law or California law (Governor vetoed bill)

  • In 2012, 17 states considered bills prohibiting discrimination against the unemployed

  • NJ, OR, and the District of Columbia passed laws

U s supreme court shake up
U.S. Supreme Court Shake Up?

  • Four U.S. Supreme Court Justices (Scalia, Kennedy, Ginsburg, and Breyer) are in their seventies