Under the previous version of Labor Code section 1198.5, an employee had the right to inspect his/her personnel file within “a reasonable time” after making a request for any personnel records “relating to the employee’s performance.”  Now, employers must provide a copy of personnel records or make them available for inspection within 30 calendar days of a written request

Since the employers must respond to an employee’s request for personnel records within a specific time, Labor Code section 1198.5 now requires that these requests be made in writing.  Even though employers must provide a form that employees may use to request their personnel records, employees are not required to use it.

When the request for personnel records is made by a former employee, inspection or copies must be provided wherever the employer stores the records.  If the former employee wishes to receive copies of his/her personnel records by mail, the employer is entitled to be reimbursement for actual postal expenses.  Finally, former employees are entitled to only one personnel records demand per year.

Employers must maintain copies of personnel records for a minimum of three years after termination.  If, however, a current or former employee files a lawsuit that relates to a personnel matter, he/she loses any right to inspect or copy files until the lawsuit concludes.

Each failure to comply with an employee’s demand for his/her personnel records exposes an employer to: a $750 penalty; injunctive relief and attorneys’ fees.

By January 1, 2013, every employment contract with an employee who is to be paid on commission  “shall be in writing and shall set forth the method by which the commissions shall be computed and paid.”  (Labor Code § 2751(a))  Furthermore, the employer must “give a signed copy of the contract to every employee who is a party thereto and shall obtain a signed receipt for the contract from each employee.”  (Labor Code § 2751(b))

Since it is common for commission structures to be periodically revised, the new law requires employers to get the revisions in writing that is signed by the employee.  “In the case of a contract that expires and where the parties nevertheless continue to work under the terms of the expired contract, the contract terms are presumed to remain in full force and effect until the contract is superseded or employment is terminated by either party.”

The bottom line here is simple.  If you pay any employee on commission, you must have a written, signed employment contract that discusses how and when commissions are to be paid.

The new law begins by broadly defining social media as “an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.  (Labor Code § 980(a))  After defining what qualifies as social media, the new law prohibits an employer from requiring or requesting “an employee or applicant for employment to do any” one of three things.  (Labor Code § 980(b))

(1) Disclose a username or password for the purpose of accessing personal social media.

(2) Access personal social media in the presence of the employer.

(3) Divulge any personal social media, except as relevant to an investigation of employee misconduct.

Not only are employers prohibited from making these demands or requests, they also are prohibited from retaliating in any way “against an employee or applicant for not complying with a request or demand by the employer that violates this section.”  (Labor Code § 980(e))

The bottom line is that every employer should update its procedures for screening job applicants as well as its social media policy.  Larger employers also should educate employees in supervisory positions about these limits on their access to the employees’ social media.  Since these new law expressly prohibits retaliation against any employee who declines an employer’s demand or request for access to his/her social media, except an explosion of these retaliation cases over the next few years.

Effective this year, California effectively ended this practice by amending Labor Code § 515(d) such that employers are required to pay non-exempt salaried for each overtime hour at a rate equal to at least 1.5 times the employee’s weekly salary divided by 40.  (Labor Code § 515(d)(1))  Furthermore, the new law provides that a salary this duty shall not affected by any agreement between the employer and the employee.  (Labor Code § 515(d)(2))

The bottom line for employers is that any salary given to a non-exempt employee entitles the employer to no more than forty hours per week.  Whenever the employee worked beyond 40 hours in a week, the employer has an absolute duty to pay the employee time and a half.

That changed in February 2013 when the California Supreme Court issued its opinion in Harris v. City of Santa Monica (“Harris“).  In Harris, the Supreme Court held that “when a jury finds that unlawful discrimination was a substantial factor motivating a termination of employment, and when the employer proves it would have made the same decision absent such discrimination, a court may not award damages, backpay, or an order of reinstatement.” Harris, however, was not a complete victory for employers because the Court also held that an employee still could (1) obtain declaratory or injunctive relief by establishing that that discriminatory policies or practices were also a substantial motivating factor in the employer’s decision and (2) if successful, recover attorney’s fees and costs.

The bottom line is that a mixed motive theory provides a defense, albeit an incomplete one.  By allowing employees to also pursue declaratory and injunctive relief in mixed motive cases, the Harris decision creates an incentive for plaintiffs’ lawyers to litigate mixed motive cases for the purpose of collecting significant attorneys’ fees.