Wage Protection Act Template Effective January 1, 2012, Has Been Updated
California employers trying to comply with the recently enacted Wage Theft Protection Act should take note that the Labor Commissioner has again modified the notice template, effective April 12, 2012. The new law, which went into effect January 1, 2012, requires California employers to provide non-exempt new hires with written notice of wage and related information. Most of the information required to be provided is set forth in the statute itself. However, the Labor Commissioner has authority to prescribe additional categories of information to be provided in the notice. Given that authority, the Labor Commissioner was also tasked with publishing a template that employers can use to satisfy their notice obligations. Causing challenge to employers is the fact that the Labor Commissioner waited until close to January 1 to publish any template and then prescribed additional content beyond that set forth in the text of the statute. If that is not confusing enough, the Labor Commissioner’s office cannot seem to make up its mind about the contents of the template or the requirements of the Act. The Labor Commissioner has at least twice revised the FAQ on the Act’s notice requirements, and has now issued a revised template. Employers who downloaded the original template will want to review the newly published template and newly revised FAQ. Most of the changes are fairly minor, but the newly revised template has different language on the subject of whether there is a written or oral employment agreement. It appears that this was in response to concern from employers that checking one of these boxes suggests the employee actually has some sort of employment agreement, weakening the at-will nature of the employment relationship. The new template has been revised to make clear that all this is referring to is whether the rate of pay is set forth in writing or was communicated only verbally. The revisions also make clear that the acknowledgement of receipt portion is optional, not mandatory. The new revised template is available at www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf. Employers will want to review these forms to ensure compliance. Unfortunately, there is no practical way for employers to stay apprised of continued changes by the Labor Commissioner going forward other than to periodically check the Labor Commissioner’s website. I will of course try to report on changes on this blog.
Employee Rights Posting Found to be Unlawful! No Posting Required by the End of April.
A South Carolina District Court ruled that the NLRB did not have authority to mandate the Employee Rights Poster. The ruling is in conflict with the only other court to rule on the issue thus far–the District Court for the District of Columbia–and that decision is on appeal. Well, as a result, the D.C. Circuit Court of Appeal granted the National Association of Manufacturers’ request for a temporary injunction enjoining the NLRB’s posting requirement pending appeal. The court reasoned that the uncertainty regarding enforceability of the posting requirement counsels in favor of temporarily preserving the status quo pending appeal.
In response to the DC Circuit’s order, the NLRB has announced that is postponing its mandate until the courts finally rule on the legality of the posting requirement. The NLRB’s Chairperson announced: “In view of the DC Circuit’s order, and in light of the strong interest in the uniform implementation and administration of agency rules, regional offices will not implement the rule pending the resolution of the issues before the court.”
Based on this development, employers are not required to post the NLRB poster on or before April 30. I will continue to keep you updated.
