By July 1, 2024, California employers will be required to implement specific measures for workplace safety. This legislation compels most non-health care related businesses to review and develop certain workplace violence measures by mandating the creation, execution, ongoing maintenance, and employee training of a Workplace Violence Prevention Plan (WVPP). Below, we outline five issues California employers need to understand in meeting these requirements by the July 1 deadline:

1. Determine if your business is a covered employer that must develop a WVPP.

The new requirements under the new law apply to all employers, employees, places of employment, and employer-provided housing, except for the following:

  1. Employees teleworking from a location of the employee’s choice, which is not under the control of the employer.
  2. Places of employment where there are less than 10 employees working at the place at any given time and that are not accessible to the public, if the places are in compliance with Section 3203 of Title 8 of the California Code of Regulations.
  3. Health care facilities, service categories, and operations covered by Section 3342 of Title 8 of the California Code of Regulations.
  4. Employers that comply with Section 3342 of Title 8 of the California Code of Regulations in the health care setting.
  5. Facilities operated by the Department of Corrections and Rehabilitation, if the facilities are in compliance with Section 3203 of Title 8 of the California Code of Regulations.
  6. Employers that are law enforcement agencies that are a “department or participating department,” as defined in the California Code of Regulations and meet other requirements.

The exceptions are vary limited, and most employers in California will need to take steps to comply with the requirements by July 1, 2024.

2. Prepare a written plan by July 1, 2024.

For covered employers under the law, an essential first step in violence prevention is conducting comprehensive risk assessments to identify potential hazards that could lead to workplace violence. Factors such as working conditions, the nature of the employment, and interactions with the public can all contribute to risk. Employers need to evaluate these factors to develop targeted prevention strategies.

Covered employers must craft a detailed WVPP that outlines the responsibilities of all parties involved, incorporates employee and representative involvement, and establishes clear protocols for handling and responding to incidents of workplace violence. This plan should include procedures for emergency responses, effective training programs, and methods for identifying, evaluating, and mitigating violence hazards.

Cal/OSHA published a model written Workplace Violence Prevention Plan for General Industry (Non-Health Care settings), which is available as a resource guide for employers.  Employers may download the model form as a Word document here. 

3. Conduct employee training about the plan by July 1, 2024.

Employers are required to train the employees by July 1, 2024, and annually thereafter.  Employers may prepare and conduct the required training on their own, and there is not a required length of time for the training (as opposed to the 1 hour or 2-hour training requirements for sexual harassment prevention training).  However, the regulations do set out some parameters for the training.  For example, the training material must be appropriate in content and vocabulary to the educational level, literacy, and language of employees

The training needs to cover all of the following topics:

(A) The employer’s plan, how to obtain a copy of the employer’s plan at no cost, and how to participate in development and implementation of the employer’s plan.

(B) The definitions and requirements of this section.

(C) How to report workplace violence incidents or concerns to the employer or law enforcement without fear of reprisal.

(D) Workplace violence hazards specific to the employees’ jobs, the corrective measures the employer has implemented, how to seek assistance to prevent or respond to violence, and strategies to avoid physical harm.

(E) The violent incident log required and how to obtain copies of records.

(F) An opportunity for interactive questions and answers with a person knowledgeable about the employer’s plan.

Cal/OSHA requires additional training when a new or previously unrecognized workplace violence hazard has been identified and when changes are made to the plan. The additional training may be limited to addressing the new workplace violence hazard or changes to the plan.

Employers may consider implementing this training at the end of the sexual harassment prevention training for new employees.  However, remember that the violence prevention plan training must be done each year, and the sexual harassment prevention training is only once every two years, so employers will still need to conduct standalone violence prevention plan trainings each year. 

4. Review Cal/OSHA’s FAQs and other resources to stay informed.

Cal/OSHA’s FAQs on the WVPP are published here.  Employers should review the FAQs, and revisit them regularly to learn about any updates or additional clarifications made by Cal/OSHA. 

5. Maintain and review compliance records.

Compliance with the new legislation includes thorough documentation and record-keeping related to the WVPP. Employers must keep detailed records of all violence prevention efforts, including hazard identification and mitigation, training sessions, incident responses, and investigations. Examples of incident logs are included in the model Workplace Violence Prevention Plan published by Cal-OSHA.  Violent incident logs are required to be kept by the employer for five years. 

HR often gets sidelined in executive suite meetings, but its role is far too important to be overlooked. Effective HR departments and leaders who connect with employees and help them develop create more profitable organizations with reduced litigation costs. Here are five compelling reasons why HR should play a more critical role in your company:

1. The Personal Touch Matters

Regardless of your title—CEO, CFO, HR, or even corporate pilot—having a personal touch is crucial. Just think of the connection that you would have if you were able to meet your sports hero as a kid. Not even a very long interaction, but maybe just a high five and a few words would endear you to the athlete for the rest of your life. One-on-ones, lunches, and really getting to know co-workers has a similar effect in the workplace. This kind of personal engagement can differentiate top performers and foster loyalty and support. In the business context, personal connections with employees can significantly enhance workplace culture and morale.

2. Authenticity in Engagement

Personal touch cannot be faked. Employees can easily discern genuine engagement from obligatory interactions. If an organization tries to feign interest in its employees, it risks being seen as hypocritical. Authentic relationships and genuine concern for employee well-being are essential. Pretending to care is worse than not engaging at all, as it can damage trust and credibility.

3. Reduced Litigation Through Fair Treatment

Treating employees with fairness and respect can reduce litigation costs. While being harsh or disrespectful to employees isn’t illegal, it often leads to disgruntled employees seeking retaliation through lawsuits, whether meritorious or not. High turnover and dissatisfaction can escalate employment litigation. A respectful and supportive HR approach can mitigate these risks by fostering a positive work environment.

4. Reduced Turnover = Reduced Litigation

It goes without saying, a higher employee retention rate reduces litigation. From a purely numerical perspective, reducing employee turnover decreases litigation exposure. Moreover, high turnover is a red flag that companies and HR departments must constantly monitor. When there is an uptick in turnover, an immediate review is necessary to identify potential causes. Employee turnover can be due to external factors beyond the company’s control. However, if a problematic employee or a toxic culture exists within the company, it will likely lead to more litigation.

A-players who create discord can be detrimental to the organization. Employees who are disruptive, regardless of their skill level, can lower overall morale and productivity. Organizations that foster a respectful and collaborative work environment where all employees feel valued and supported will see better overall performance, higher retention rates, and reduced litigation.

5. HR’s Role Beyond Paperwork and Birthdays

HR should be more than just the department that handles paperwork and enforces policies. Administrative tasks like new hire paperwork and policy compliance can be delegated to other departments. HR’s focus should be on employee development and satisfaction, and providing a place for employees to be heard. By prioritizing relationships and engagement over administrative duties, HR can significantly contribute to a positive company culture and employee retention.

As workplace technology increases, direct personal contact becomes even more critical. Creating a genuine culture goes beyond perks like unlimited vacation or ping pong tables. It requires meaningful engagement and a dedicated HR department that prioritizes employee well-being and development. It’s time for HR to take on a more critical and central role in your company’s success.

As we discussed last week, makeup time provides flexibility for California employers and employees to offset time taken off within the same workweek without incurring overtime obligations. Additionally, the California Labor Code permits the use of compensatory time, commonly known as “comp time.” However, the federal Fair Labor Standards Act (FLSA) imposes significant limitations on how California employers can implement comp time. Here are five key issues that California employers need to understand about comp time:

1. Definition and Purpose of Comp Time

Compensatory time off, often referred to as “comp time,” allows employees to take time off instead of receiving overtime pay. This concept is frequently used to address the needs of both employers and employees. However, many California employers implement comp time without fully understanding the applicable rules and regulations.

2. Legal Framework in California

In California, the rules governing comp time are detailed in Labor Code section 204.3. According to this code:

  • Comp time must be provided at the same rate as the overtime rate, typically one and one-half hours per hour of overtime worked.
  • There must be a written agreement between the employer and the employee before the overtime work is performed.
  • Employees must request comp time in writing.
  • Employees must be regularly scheduled to work at least 40 hours per week and cannot accrue more than 240 hours of comp time.
  • Upon termination, any unused comp time must be paid out at the employee’s final regular rate of pay or the average rate over the last three years, whichever is higher.

3. Use and Accrual Limits

Under California law, employees can request to use their accrued comp time within a reasonable period after making the request. Additionally, employees can ask for their accrued comp time to be paid in cash if it has been accrued for at least two pay periods. However, certain industries governed by specific Industrial Welfare Commission Orders are exempt from these provisions.

4. Federal Law Prohibits Comp Time by Private Employers

While California’s Labor Code section 204.3 sounds promising for employers, Federal law, specifically 29 U.S.C. §207(o), influences how comp time can be used. This federal regulation only applies to state and local government employees, not to private employers. Therefore, California employers must be cautious when using comp time to avoid violating federal laws, which mandate overtime pay for hours worked over 40 in a week.

5. Practical Implications

While comp time may seem like a useful tool for managing overtime, the overlap of state and federal laws can complicate its implementation. For most California employers, comp time must be taken within the same workweek it is earned (and comply with the other parameters set forth above) to comply with federal overtime requirements. Failure to do so can result in legal issues, making it essential for employers to understand both state and federal regulations thoroughly before offering comp time to employees.

As difficult as it is to comply with California’s daily overtime rules, it is easy to forget the one form of flexibility provided to employers — make-up time. This provision allows employers to avoid paying overtime when employees want to take off an equivalent amount of time during the same work week. This Friday’s Five covers what make-up time is, and the general requirements for it to apply under the California Labor Code.

What is make-up time?

Make-time time can offer employees and employers some flexibility in scheduling.  For example, it offers employees the ability to take time off work without having to use their paid time off (PTO), sick leave, or vacation time.

For example, take an employee who is scheduled to work from 8 a.m. to 5 p.m. five days a week, leaves work 1 hour early on Wednesday in order to pick up his child from school. On Thursday, the employee asks if he can work until 6 p.m. to make up the missed time on Wednesday.  If the employer agrees to this, the employee can work the 9 hours on Wednesday, and the employer would not be required to pay overtime for this hour of work. 

California Labor Code section 513 set forth the requirements of how and when make-up time can be used.  Make-up time is different than comp time, which we will cover in a different article soon.

There are, however, a few requirements that must be met to ensure that the employer is not required to pay overtime for the makeup time:

Requirement #1: An employee may work no more than 11 hours on another workday, an not more than 40 hours in the workweek to make up for the time off;

Requirement #2: The time missed must be made up within the same workweek;

Requirement #3: The employee needs to provide a signed written request to the employer for each occasion that they want to makeup time (and if employers permit makeup time, they should have a carefully drafted policy on makeup time and a system to document employee requests); and

Requirement #4: Employers cannot solicit or encourage employees to request makeup time, but employers may inform employees of this option.

Remember, time and a half overtime is due for (1) time over eight hours in one day or (2) over 40 hours in one week or (3) the first eight hours worked on the seventh consecutive day worked in a single workweek; and double time is due for (1) time over 12 hours in one day and (2) hours worked beyond eight on the seventh consecutive day in a single workweek.

The California Supreme Court’s decision in Naranjo v. Spectrum Security Services, Inc. represents a significant win for employers across the state, providing much-needed clarity on wage statement requirements and the categorization of premium pay for missed breaks. While this ruling alleviates some of the complexities surrounding California’s stringent labor laws, it also serves as a reminder that vigilance in wage and hour issues remains crucial. In this article, we’ll break down the top five takeaways from the court’s decision, highlighting how it benefits employers and emphasizing the ongoing need for meticulous compliance to safeguard against potential penalties and legal challenges:

1. Good Faith Defense for Wage Statements.

The California Supreme Court ruled that if an employer reasonably and in good faith believed it was providing complete and accurate wage statements in compliance with section 226 of the Labor Code, then it has not knowingly and intentionally failed to comply with wage statement requirements. This establishes a good faith defense for employers against penalties for purported wage statement violations.

2. Wage Statement Requirements.

The ruling reaffirms the obligations under Labor Code section 226 that employers must provide employees with detailed wage statements that list hours worked, wages earned, and other pertinent information. Failure to comply, if not based on a good faith belief, can still lead to statutory penalties.

3. Treatment of Missed-Break Premium Pay as Wages.

The Court previously held that employers are required to treat premium pay for missed meal and rest breaks as wages. Under California law, employees are entitled to certain rest and meal breaks during their workday. If an employer fails to provide these mandated breaks, the employee is typically owed one hour of pay at their regular rate for each day that the break was not provided—this is known as “premium pay.”

The California Supreme Court confirmed that this premium pay for missed breaks should be treated as wages, rather than penalties. This distinction has significant implications for reporting on wage statements, calculating timing payment of wages and final wages, and penalties. 

4. Penalties for Non-Compliance.

The Supreme Court confirmed that penalties for not including required information on wage statements can be avoided if the employer can demonstrate a reasonable and good faith belief in their compliance, even if that belief is later shown to be mistaken.  If an employer knowingly and intentionally fails to provide a wage statement with all required information, the employee may recover statutory penalties. Specifically, for initial violations, an employee can recover $50, and for each subsequent violation, the penalty increases to $100 per employee, up to a maximum of $4,000. In addition to these penalties, the employee can also recover costs and reasonable attorney’s fees.

5. Distinction in Handling Missed-Break Premium Pay.

The Supreme Court clarified that missed-break premium pay must be treated as wages, not penalties. This interpretation is crucial because it means that premiums paid for missed meal and rest breaks must be included in the final wage payments upon an employee’s termination and reported on wage statements. If these payments were to be considered penalties, the payments would not be subject to the same stringent reporting and payment requirements as wages. This distinction impacts how employers should handle missed-break premiums both during employment and in final paychecks, emphasizing the need for accurate payroll practices and compliance with wage statement requirements to avoid additional liabilities.

As reported last week, the California Attorney General’s office announced that the new state law banning “junk fees” will extend to surcharges at restaurants, marking a significant shift in billing practices in the food industry. Today, the Attorney General finally released the FAQs which were promised last week. Under this interpretation of the Attorney General of Senate Bill 478, which does not mention restaurants or restaurant surcharges, California restaurants will be prohibited from adding service fees to bills starting July 1, 2024—a practice that had been adopted by many eateries as a means to support higher wages in lieu of traditional tipping. 

The FAQs state the following regarding restaurants:

What about tips or gratuities left voluntarily by customers?

This law does not affect tips or gratuities left by customers, since they are not mandatory. These voluntary payments to workers are governed by other laws, including Labor Code section 350. For more information see this FAQ from the California Labor Commissioner.

What about mandatory fees charged by restaurants?

If a restaurant charges a mandatory fee, it must be included in the displayed price. Under the law, a restaurant cannot charge an additional surcharge on top of the price listed. Gratuity payments that are not voluntary must be included in the list price.

Does DOJ expect that its initial enforcement of this law will focus on existing fees that are paid directly and entirely by a restaurant to its workers, such as an automatic gratuity?

No. There are many factors that we consider when making enforcement decisions, but we do not expect that our initial enforcement efforts will focus on existing fees that are paid directly and entirely by a restaurant to its workers, such as an automatic gratuity. However, businesses may be liable in private actions.

The California Restaurant Association came out against the FAQs published by the Attorney General’s Office, calling the FAQs a “prime example of legislating through a press release.”  The CRA is considering options to potentially block implementation of the law as interpreted by the Attorney General’s Office.  We will continue to report on any developments regarding SB 478.

In the case Jones v. Riot Hospitality Group, the plaintiff, Alyssa Jones sued her former employer, a bar, Riot Hospitality Group, and its owner individually alleging discrimination and other employment tort claims.  Plaintiff was found to have intentionally deleted relevant text messages with co-workers from 2017 and 2018, and coordinated with her witnesses to delete additional messages from 2019 and 2020. These actions were taken with the intent to deprive the defendant, Riot Hospitality Group, of information critical to the litigation. The district court ruled that the deletions could not be remedied through further discovery and consequently dismissed the case under Federal Rule Civil Procedure 37(e)(2), which addresses the loss of electronically stored information (ESI) due to a party’s failure to take reasonable steps to preserve it when litigation is anticipated. The court’s decision was based on Jones’ intent to obstruct the litigation, a key factor under the Rule, and determined that lesser sanctions would not be sufficient.

1. Missing text messages.

    During discovery, Riot obtained text messages between Jones, her friends, and co-workers between October 2015 and October 2018.  However, Riot found instances where plaintiff abruptly stopped texting with people she had been communicating with on almost a daily basis.  Riot subpoenaed Jones’ third-party imaging vendor, and the vendor’s response showed that text messages between Jones and co-workers had been deleted from Jones’ phone.  In addition, during depositions of two co-workers, they both admitted that they had exchanged text messages with Jones about the case since October 2018.  After Jones failed to comply with a court order producing those messages, the court ordered that a third-party forensic search specialist review the phones of Jones and the three prospective witnesses.  Jones and two of the witnesses produced their phones to the search specialist.  The third witness claimed to have damaged her phone and that it was lost (of course).  The court excluded this third witness’ testimony. 

    2. Expert determination that plaintiff and witnesses coordinated deletion of text messages.

    After finally receiving all of the text messages extracted from Jones’ and the witnesses’ phones, the forensic search expert submitted a report to the court that after reviewing the messages between the phones, that “an orchestrated effort to delete and/or hide evidence subject to the Court’s order has occurred.”  In 2022, the district trial court dismissed the case with prejudice, relying on the holding that plaintiff and her witness deletion of the text messages was intended to deprive Riot from using this evidence in the litigation.

    3. Dismissal under Federal Rule 37(e)(2)

    Rule 37(e) applies when electronically stored information (ESI) “that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.”  If the court finds the loss harmful to the other party, it “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). However, if the court finds that a party “acted with the intent to deprive another party of the information’s use in the litigation,” dismissal is authorized. Fed. R. Civ. P. 37(e)(2).

    Rule 37(e) provides a framework for addressing ESI issues in litigation. Employers can use this rule strategically by emphasizing their efforts to preserve relevant information and by challenging claims where the opposing party fails to do the same.

    4. The court found plaintiff intentionally destroyed text messages.

    The district court found substantial circumstantial evidence indicating that Jones intentionally destroyed a significant number of text messages and collaborated with others in doing so, which was upheld by the Ninth Circuit Court of Appeals. Jones failed to provide a satisfactory explanation for why messages to other employees at the bar were selectively deleted during 2017 and 2018. Additionally, a screenshot of a message sent to Jones, which was missing from her phone in its original form, demonstrated that she deleted at least one message relevant to the case. Furthermore, after being ordered to submit their phones for forensic imaging, Jones and a witness acquired new phones and did not produce the original ones for examination, thereby preventing the recovery of the deleted messages. The court concluded that Jones selectively deleted specific messages while preserving others from the same period, a finding supported by the evidence presented.

    5. Electronic stored information is critical in employment law cases.

    ESI has become critically important in employment law cases due to its comprehensive and revealing nature. In today’s digital age, a plaintiff’s ESI such as emails, text messages, digital documents, and even social media posts can shed light on plaintiff’s allegations in litigation.  Just as Jones did in this case, co-workers will likely text about their work environment, and these real time communications are key in discovering the facts of the case. It provides a time-stamped, verifiable record of communications and transactions that can prove intent, show patterns of behavior, or contradict statements made during litigation. Given its potential impact, the ability to accurately collect and analyze ESI is essential for establishing the facts and in employment disputes.

    The California Attorney General’s office yesterday announced that the new state law banning “junk fees” will extend to surcharges at restaurants, marking a significant shift in billing practices in the food industry. Under Senate Bill 478, effective starting July 1, 2024, California restaurants will be prohibited from adding service fees to bills—a practice that had been adopted by many eateries as a means to support higher wages in lieu of traditional tipping.

    This legislation comes amid rising concerns over transparency in pricing. The intent, as outlined by a Department of Justice spokesperson, is to ensure that consumers understand the complete cost of services upfront, with all charges included in the listed prices. This approach aims to eliminate hidden costs that inflate the final bill unexpectedly, a tactic commonly seen in sectors like entertainment and hospitality.

    However, this change is not without controversy and concern.

    This legislative change also opens the door to potential legal challenges. Businesses that fail to comply could face lawsuits with damages starting at $1,000, mirroring the wave of litigation seen under laws like the Americans with Disabilities Act. The fear of such outcomes adds another layer of urgency for restaurants to adapt their pricing models swiftly.

    Interestingly, the law exempts food delivery platforms like DoorDash from including service fees in the prices shown to consumers.

    As the attorney general’s office prepares to release an FAQ to clarify further details, stakeholders from all sides are on edge. While the goal of SB478 is to promote transparency and fairness, its broad implications suggest a turbulent period ahead for California’s restaurant scene. The coming months will be crucial in determining whether this legislative change can indeed balance consumer protection with the economic viability of the restaurant industry.

    For more information about service charges, tips, and tip pooling, see our prior article here.

    In today’s regulatory environment, conducting background checks in compliance with both federal and state laws is not only a necessity but also a complex legal challenge for employers. This article delves into the intricacies of four major laws that California employers must consider: the federal Fair Credit Reporting Act (FCRA), the California Investigative Consumer Reporting Agencies Act (ICRAA), the California Consumer Credit Reporting Agencies Act (CCRAA), and the California Labor Code. Each of these statutes outlines stringent guidelines for how background checks should be conducted, what employers must disclose, and the rights of employees throughout the process.

     1. Background checks must comply with the federal Fair Credit Reporting Act and the California Investigative Consumer Reporting Agencies Act. 

    Three applicable laws apply to California employers who perform background checks: the federal Fair Credit Reporting Act (FCRA), California Investigative Consumer Reporting Agencies Act (ICRAA), and the California Consumer Credit Reporting Agencies Act (CCRAA).  These laws are complex and are very detailed. 

    The laws generally require employers to:

    1. Obtain written authorization from the employee to conduct the background check
    2. Provide notice about background checks
    3. If taking an adverse employment action based on the information obtained through the background check, additional notices must be provided to the employees.

    For example, before the employer takes an adverse employment action, they must provide the employee with a notice that includes a copy of the consumer report being relied upon in the decision.  The employer must also provide a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act”.

    After the adverse employment action has been taken, the employer must provide certain information to the employee, such as:

    • The employment decision was taken because of the information in the report
    • The name, address, and phone number of the company that compiled the report
    • The company that compiled the report did not make the hiring decision, and
    • That the employee has the right to dispute the accuracy or completeness of the report, and to get an additional free report from the reporting company within 60 days.

    As set forth below, California employers can only perform credit checks for a very limited set of positions, and cannot perform a credit check on every employee.  In addition, the CCRAA requires additional disclosures to the employee if a credit check is performed.  See Cal. Civ. Code section 1785.20.5.

    2. Even if conducting a background check in-house, if an employer searches public records, these records must be disclosed to the employee within seven days.

    Generally, if the employer conducts the background checks itself, the FCRA, ICRAA and CCRAA do not apply.  One exception to this rule is that the ICRAA requires that if the employer searches “public records” the employer must produce a copy of the public record to the employee within seven days of receiving the information (this applies to records received either in written or oral form).  “Public records” are defined as “records documenting an arrest, indictment, conviction, civil judicial action, tax lien, or outstanding judgment.”

    3. Employers are required to provide notice to the third-party conducting the background check under

    Employers using outside credit reporting agencies must provide a certification to the reporting agency that the employer obtained the permission from the applicant/employee to obtain a background report, complied with the FCRA, and does not discriminate against the applicant or employee or otherwise use the information for an illegal purpose.

    Here are some resources for employers to learn more about their requirements under federal law:

    The Fair Credit Reporting Act & social media: What businesses should know (FTC)

    Background Checks: What Employers Need to Know (FTC)

    The interaction between the federal FCRA, and California’s own requirements under the ICRAA and CCRAA adds another level of complexity to the analysis.  It is important for employers to review these laws closely to ensure compliance, and it is highly recommended to have experienced legal counsel review the practices.

    4. California law prohibits employers from asking about criminal convictions prior to making a conditional employment offer. 

    In addition, since January 1, 2018 California employers cannot ask applicants to disclose information about criminal convictions.  The law added as Section 12952 to the Government Code and applies to employers with 5 or more employees.  Once an offer of employment has been made, employers can conduct criminal history background checks, but only when the conviction history has a “direct and adverse relationship with the specific duties of the job,” and requires certain disclosures to the applicant if employment is denied based on the background check.  In addition, local jurisdictions, such as Los Angeles and San Francisco have implemented their own prohibitions on criminal history checks, and employers must also comply with these local requirements as well. 

    5. Credit Checks: California employers can only conduct credit checks (which are different from background checks) only for a limited type of employee in certain positions. 

    Since 2012, California employers can only perform credit checks on employees who meet very specific categories.  Employers must ensure that the employee qualifies under one of the categories set out in Labor Code section 1024.5 in order to conduct a credit check. 

    The landscape of employment background checks in California is governed by a detailed and complex set of federal and state laws. It is imperative for employers to understand and adhere to the specific requirements of the FCRA, ICRAA, CCRAA, the Labor Code, and local laws to ensure legal compliance and protect their businesses from potential liabilities. Given the complexities involved, consulting with experienced legal counsel to review background check practices is highly recommended.

    California is the first state to propose restrictions on an employer’s ability to communicate with employees after work hours.  AB 2751, currently making its way through the California legislature, would give employees the “right to disconnect.”  While this right has been adopted in other countries, such as France, Spain, and Mexico, no state in the U.S. has a specific law addressing this issue.  As discussed below, the proposed law would dramatically change the dynamic on overtime work for both exempt and nonexempt employees in California.  Here are five key issues California employers need to know about the proposed bill:

    1. The proposed bill: AB 2751.

    AB 2751, if passed in its current form, would require employers to develop a policy that provides employees with the right to disconnect “from communications from the employer during nonworking hours.”  Nonworking hours would need to be established in writing between the employer and employee.  The employee could file a complaint for a pattern of violation, which is defined as three or more documented instances of being contacted outside of work hours.  Violations of the law would be a misdemeanor and of at least $100.  Unionized workers covered by a collective bargaining agreement are not provided protection under this law. 

    2. Exceptions under the proposed law.

    The proposed bill does permit employers to contact employees outside of working hours for emergencies or for scheduling purposes impacting changes within 24 hours.  “Emergency” is defined as situations that threaten an employee, customer, or the public, a situation that disrupts or shuts down operations, or causes physical or environmental damage. 

    3. California state and local laws already protect workers.

    California law already provides for numerous protections to employees who are required to work overtime.  Some examples are:

    • Overtime: California law requires employers to pay overtime.  As recognized by the California Supreme Court, this is an unwaivable right by employees.  Labor Code section 510 provides that nonexempt employees must be paid one and one-half their wages for hours worked in excess of eight per day and 40 per week and twice their wages for work in excess of 12 hours a day or eight hours on the seventh day of work.
    • On-call time: Under California law, an employee’s on-call or standby time may require compensation.

    4. The proposed bill would apparently apply to exempt employees and does not account for different industries.

    The proposed bill does not exclude exempt employees from the law.  Therefore, even exempt employees, such as doctors, lawyers, engineers, officers of a corporation, would all still be covered under the law. 

    The proposed bill does not address industries that do not have fixed work hours.  One could only imagine the impact such a bill would have on the trucking industry, catering and event companies, and health care providers.  The bill is silent on industries that do not have established work hours because of the practical considerations for their workplaces and how the law would apply to these industries. 

    5. Not only does the bill create a right to disconnect – it also creates a right to refuse to work overtime altogether.

    In addition to providing employees the right to disconnect, the bill also apparently provides employees with a legal right to refuse to work overtime past their normal work schedule.  Currently under California law, employers may require employees to work overtime, as long as the employer complies with the overtime requirements and other wage and hour requirements (some mentioned above).  However, under the proposed law, it shifts the decision to the employee on whether they want to work overtime.  The employee would be permitted to leave work at the designated “nonworking hour” as agreed with the employer, and refuse to communicate with the employer at that point.  The bill would limit employers’ ability to have employees work overtime only in emergency situations, as defined by the law.