To address the prevalent and ongoing practice of permitting employees to work from home, a new California law authorizes employers to provide required workplace notifications to their employees as attachments to emails. Senate Bill (SB) No. 657 was signed into law on July 16, 2021. While the new law maintains the requirement to physically display mandatory postings in the workplace, SB 657 also provides California employers with a new way to provide important notifications to employees about wage and hour issues that could help deter employers from class and collective action liability regarding such claims.
Existing law requires California employers to "post" or "provide" various information in the workplace, including notices about state wage and hour laws.
Some of the required postings require California employers to do the following:
- Post the wage order(s) that cover their industry or occupation. (Labor Code § 1183)
- Provide each employee, "[a]t the time of hiring," with written notice of various information, including: (a) "[t]he rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable"; (b) "[t]he regular payday designated by the employer in accordance with the requirements of [the California Labor Code]"; (c) "[t]hat an employee  may accrue and use paid sick leave"; and (d) "[a]ny other information" required by the labor commissioner. (Lab. Code § 2810.5(a)(1))
- Post "a notice specifying the regular pay days and the time and place of payment" (the "Payday Notice"). (Lab. Code § 207)
- Post "a notice containing pertinent information regarding safety rules and regulations," including, among other required information, "a clear explanation of an employee's right to report any unsafe working conditions." (Lab. Code § 6328)
- Post "a list of employees' rights and responsibilities under the whistleblower laws, including the telephone number of the whistleblower hotline" (the "Whistleblower Protection" posting). (Lab. Code § 1102.8)
The California Senate Standing Committee on Judiciary issued a report on April 16, 2021, in which it summarized the issue that the bill was intended to address as follows:
The COVID-19 pandemic accelerated a pre-existing trend toward remote work, in which employees perform their labor at locations other than the employer's property. Often this means the employee is working from home. The prevalence of remote work may continue, even after the pandemic subsides.
Remote work complicates the role of posted notices as a mechanism for communicating information to employees. In traditional workplace settings, the presence of posters setting out workplace rights meant that employees could casually peruse the information while taking a break, say, or filling up at the office water cooler. Obviously, the same dynamic does not necessarily apply in the context of a home office.
To help facilitate the flow of information to employees working remotely, this bill would authorize employers to provide employees with required notices and postings as attachments to email sent to the worker.
In addition to physically "posting" information in the workplace, and "providing" paper documents to employees in the workplace, SB 657 offers employers a new way to inform employees about legal requirements in the workplace by sending emails and eliciting electronic signatures and confirmations of receipt. California employers may consider using this new method to reaffirm their wage and hour policies and practices. For example:
- The wage order posting provides a summary of state law on minimum and overtime wages, as well as on meal and rest breaks. Employers may want to attach the meal and rest break policy and require each employee to electronically sign an acknowledgement form that they have read, understood, and will comply with the policy. Employers may also consider sending their timekeeping policies along with clear language prohibiting off-the-clock work. Employers may also consider requiring employees to sign an acknowledgement that they will accurately record all time worked and will not work off the clock.
- Along with the wage and overtime rate information, employers may consider providing information about the definition of "workweek" and "workday" applicable to each employee so that employees can better understand how their overtime is calculated. For example, employees may not understand that they only accrue daily overtime when they work more than eight hours in the defined "workday" and that when they work longer shifts that straddle the defined workday, those additional hours in the second defined "workday" will not necessary qualify as overtime.
- When providing the Payday Notice, employers may also consider explaining to employees when wages are paid if the regular payday falls on a weekend or holiday. Many employees rely on the specific day when their paycheck is directly deposited in their respective accounts, so notifying employees when that date may change is important.
- When providing the required safety postings, employers may also consider reaffirming their commitment to providing compliant meal and rest break opportunities to ensure employee health and safety. For example, in Donohue v. AMN Services, LLC, the Supreme Court of California recently emphasized the important health and safety purposes of duty-free meal breaks:
[E]ven relatively minor infringements on meal periods can cause substantial burdens to the employee. Forcing employees to work through their meal periods not only causes economic burdens in the form of extra work but also noneconomic burdens on the employees' health, safety, and well-being. ... Employees denied compliant meal periods "face greater risk of work-related accidents and increased stress" and lose valuable time "free from employer control that is often needed to be able to accomplish important personal tasks." ... Shortening or delaying a meal period by even a few minutes may exacerbate risks associated with stress or fatigue, especially for workers who are on their feet most of the day or who perform manual labor or repetitive tasks." (Internal citations omitted.)
When distributing the required safety-related posting, employers can again reaffirm their commitment to a compliant meal and rest break policy to ensure employee health, safety, and well-being.
- Along with providing the Whistleblower Protection posting, employers may want to consider providing their Open Door policies that welcome, encourage, and require employees to report any concerns about wage and hour issues, including when work requirements prevent employees from taking meal and rest breaks, instances of off-the-clock work, unauthorized manager edits of time records, unreimbursed business expenses that were necessarily incurred to discharge work duties, and instances of retaliation for reporting any of these concerns.
Employers may want to ensure that their wage and hour policy notifications are not solely distributed during the onboarding process. Employers may also want to ensure that they regularly provide employees with updates and reaffirmations of the policies.
SB 657 provides employers with an efficient process to keep employees informed and attentive to meal and rest breaks and accurate timekeeping practices, and such documentation can serve as important evidence to defend related class action claims.
A version of this article was previously published in Law360.
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