New Laws Impacting California Employers in 2013

By Mary Bosworth

2013 has brought many changes in California Employers’ obligations to its employees. Below are highlights of several changes in the law that impact the employer-employee relationship in California.  If you are a California employer, you have more obligations (and limits on your actions) than ever before.

Social Media Privacy

Under Labor Code § 980, an employer is prohibited from requiring or requesting an employee or applicant to:

  • disclose a username or password for accessing personal social media;
  • access personal social media in the presence of the employer; or
  • divulge any personal media, except as part of an employer investigation.  (The term “divulge” is vague, at best, so it will have to be defined by the courts in the future.)

This new law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates the above rules.

Employers should note that this new law specifies that the prohibitions above do not alter an employer’s existing rights and obligations to request an employee to divulge personal social media reasonably believed to be relevant to an investigation into employee misconduct or employee violation of the law, provided that the social media is used solely for that investigation or a related proceeding.  This law also does not prohibit an employer from requiring or requesting an employee to disclose a username, password, or other method for accessing an employer-issued electronic device.

While an employer cannot retaliate against an employee for not complying with an employer request that violates this new law, the law also specifies that employers are not prohibited from terminating or otherwise taking action against an employee or applicant, if otherwise permitted.

While the bill prohibits employers from requiring employees to divulge passwords, it does not prohibit employers from accessing publicly-available social media, nor does it prohibit the employer from seeking to join an employee’s network or making a friend request.

There are no penalties for violating this new law.  However, existing law under the Labor Code would allow an employee or applicant to file a civil suit.  Interestingly, the Department of Labor Standards Enforcement (“DLSE”) is not required to investigate alleged violations of this law.

FEHA Religious Accommodation Expanded

California’s Fair Employment and Housing Act (“FEHA”) already prohibits religious discrimination, and requires employers to reasonably accommodate “religious beliefs or observances.”  Cal. Govt. Code §§ 12900-12996. (The only exception being where the accommodation would cause undue hardship to the employer).  “Religious belief” includes observance of holy days and reasonable travel time before and after a religious observance.

The change in the law adds “religious dress and grooming practices” to protected activities, including wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts and any other item that is part of religious observance.  It also includes all forms of hair (head, facial and body) that are part of the religious observance.

This new law specifies, however, that an accommodation is not “reasonable” if it requires segregation of an employee from customers or the public.  An accommodation is also not required if it would result in a violation of FEHA or any other law prohibiting discrimination or civil rights.

This change can be found at Government Code § 12926(p).

FEHA Expanded to Include Breastfeeding

California’s Fair Employment and Housing Act (“FEHA”) already prohibits discrimination based on sex, which is defined to include gender, pregnancy, childbirth and medical conditions related to pregnancy or childbirth.  The new law adds breastfeeding and related medical conditions to the FEHA’s definition of “sex” as protected from unlawful employment discrimination.

This law supplements the law already on the books at Labor Code §§ 1030-1033, which prohibits employers from discriminating or retaliating against female employees who express milk at work after they return from pregnancy disability or CFRA baby-bonding leave.

This new law specifically states that it is declaratory of existing law and can be found at Government Code § 12926(q)(1)(C).

For More Information

Please e-mail Mary Bosworth with any questions about these new laws, or other laws, which impact California employers.

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