Governor Jerry Brown recently signed AB 1744, AB 2674, and SB 1255, all of which take effect on January 1, 2013. These laws set forth new rules regarding itemized wage statements and personnel file inspection and copying, as well as the Wage Theft Prevention Act notice employers must provide to non-exempt employees.
Revisions to the Wage Statements Law
Labor Code Section 226 requires employers to include an itemization (wage statement) with employee paychecks. The wage statement must include information such as the employer’s proper name and address, information about wages and deductions from pay. Employers also must make copies of these wage statements available to current and former employees. Failure to provide an accurate or complete wage statement can result in penalties.
Newly enacted revisions to section 226 require employers to retain either a duplicate of the itemized wage statement provided to an employee with the paycheck, or a computer-generated record that accurately shows all of the information that Labor Code Section 226 requires.
Beginning on July 1, 2013, temporary services employers must include on each of its employee’s wage statements the rate of pay and the total hours worked for each temporary services assignment. However, if the temporary services employer is a security services company, licensed by the Department of Consumer Affairs which solely provides security services, it is exempt from listing the rate of pay and the total hours worked on an employee’s itemized wage statement.
Section 1198.5 addresses an employee’s right to inspect personnel records. The term “personnel records” is undefined, but does not include several types of documents, including reference letters, records concerning the investigation of a possible crime, records obtained prior to employment, or records concerning promotional or pre-employment examinations. The law also does not apply to employees subject to the Public Safety Officers Procedural Bill of Rights, or employees subject to the Information Practices Act of 1977.
The amended law provides that current and former employees, or their representatives (i.e., a person authorized in writing by the employee), have the right to inspect and/or receive a copy of personnel records. Employees representatives may request in writing to inspect and/or have mailed to them the personnel records. If there is an employer-provided form for making a request, it should be completed and submitted to the individual the employer designates. The employees/representatives may verbally ask the employer for the request form.
Upon receipt of the written request or form, the employer must make the personnel records available for inspection and/or provide a copy, no later than 30 calendar days from the date the employer received the written request. The employer and the employee/representative may agree in writing to a date no later than 35 calendar days from the date the employer received the original written request.
If the employer is providing a copy of the personnel records, the employer should not charge the current or former employee in excess of the actual cost of reproduction. The employer is permitted to redact the name of any nonsupervisory employee contained in the employee’s personnel records.
The employer must maintain a copy of each employee’s personnel records for a period of not less than three years after termination of employment. Current employees may inspect or receive a copy of the personnel records where the employee reports to work or at another mutally agreeable location. If the employee is required to inspect or receive a copy of the records at another location, the time spent doing so must be paid.
Former employees may review or receive personnel records where the employer stores the records or at another mutually agreeable location. A former employee may receive a copy by mail if he or she reimburses the employer for actual postal expenses. However, if the former employee was terminated for a violation of law or an employment-related policy involving harassment or workplace violence, the employer may comply with the written request for personnel records by making the records available at a location other than the workplace that is within a reasonable driving distance of the former employee’s residence or send a copy of the records by mail.
An employer is required to comply with only one request per year by a former employee to inspect or receive a copy of his or her personnel records. An employer may take reasonable steps to verify the identity of a current or former employee/representative. An employer is not required to comply with more than 50 requests for inspection or copies by a representative of a current employee in one calendar month.
If an employee or former employee files a lawsuit against the employer that relates to a personnel matter, the right of inspection/copies is suspended during the pendency of the lawsuit.
If the employer fails to provide the personnel records within the specified time period, the employee or the Labor Commissioner may recover a penalty of $750 from the employer. The employee may also bring an action for injunctive relief to obtain compliance, and may recover costs and reasonable attorney’s fees. An employer may avoid penalties if it could not meet the timeframe due to some reason other than a violation of the law.
Wage Theft Prevention Act
Labor Code section 2810.5 requires employers to provide non-exempt employees with a written notice containing specific wage and contact information. Effective January 1, 2013, if the employer is a temporary services employer (except for those providing only security services and licensed by the Department of Consumer Affairs ), the written notice must include additional information about the temporary assignment.