CaliforniaWritten Contracts Required for Commission-Based Pay

Employers who pay employees in whole or in part based on a commission are required to have written contracts. The contract must be signed by the employer and employee, and a copy must be provided to the employee, who must sign an acknowledgment of receipt. Even if employers have an incentive program that does not meet the definition of "commissions" under the law (payment based on a percentage of the sale), it is still good practice to put the policy in writing. Commission plans vary in complexity, but it is important to make sure the plan is crystal clear. At a minimum, the written contract should detail: the time period covered; how commissions are calculated; when commissions are earned, including any conditions that must be met; when commissions will be paid; and what happens to commissions if the sale is not completed before the employment ends.

Protections for Breastfeeding

California law prohibits discrimination based on "sex," which is defined to include gender, pregnancy, childbirth and related medical conditions. The new law extends these protections to include "breastfeeding or medical conditions relating to breastfeeding." Employers may not take any adverse action against employees based on breastfeeding, including relating to pay or disciplinary actions. Employers should be careful not to create an arguably hostile work environment (such as teasing, even if good-natured) or harass breastfeeding employees. Employers do not have to pay for lactation breaks in excess of regular break time already required under the law. Employers must make reasonable efforts to provide a private room (not a restroom stall) to employees for the purpose of breastfeeding or using a breast pump.

Accommodating Religious Dress and Grooming Practice

California's prohibition against religious discrimination in the workplace includes prohibiting employers from discriminating against employees and job applicants based on religious dress or grooming practices. "Religious dress" broadly refers to wearing or carrying religious clothing, head or face coverings, and any other item that is part of the observance of an individual's religion. "Religious grooming practice" includes all forms of head, facial and body hair that are part of the observance of an individual's religion. Importantly, employers must not segregate employees who observe religious dress or grooming practices from other employees or the public, such as hiding an employee in a back office.

The employer is required to reasonably accommodate religious dress unless the employer can show that to do so will cause undue hardship. The employer must be engaged in the interactive process with the employee to find a reasonable accommodation, a standard that must be evaluated on a case-by-case basis.

Right to Wage Statements and Personnel Files

Employers must provide California employees with wage statements that include the gross or net wages paid during the pay period, deductions made from the gross wages, the name and address of the employer and the employee's name and last four digits of his/her social security number or identification number. Failure to comply with these requirements could result in an award of damages, a penalty of up to $4,000 and attorneys' fees and costs against the employer.

Employers must keep complete wage statements for 3 years, although the new law clarifies that electronic records are acceptable as long as they include all required information. Current and former employees may inspect and copy wage statements within 21 days of a request or the employer may be charged a $750 penalty.

Current and former employees have the right to a copy of their personnel files within 30 days of a written request, and an employer is subject to a $750 penalty if the employer fails to comply. In addition, the employee may sue for injunctive relief and to recover costs and attorneys' fees.

Overtime Pay for Salaried Non-Exempt Employees

California law now prohibits employers from paying non-exempt employees a fixed salary that purportedly includes both regular pay and a certain amount to cover anticipated overtime pay, whether or not the employee actually works any overtime hours. This law overturns a prior California Appellate Court decision that allowed such a practice. Under the new law, all non-exempt employees are entitled to additional pay for overtime hours worked regardless of whether they are paid by the hour or are salaried.

Restricted Access to Social Media

Employers may not require employees and job applicants to provide login and password information necessary to access their non-public social media activity. In addition, employers may not require employees and applicants to access their private social media activity in the employer's presence or to otherwise disclose to the employer such activity.

These new laws demonstrate that California continues to enact restrictions on employers while providing additional protections to employees.

Mary Watson FisherDavid K. HaberFeel free to contact the authors with any questions:  

Managing Partner - Orange
Mary Watson Fisher at
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Associate - Orange
David K. Haber at
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Or any WFBM attorney with whom you are working.