In October 2011, Governor Brown signed AB 469 – the “California Wage Theft Prevention Act of 2011” (the “Act”). The Act created Labor Code section 2810.5(a) which, as of January 1, 2012, requires employers to provide some new employees at the time of hire with a written notice that details their rate of pay, employer name and address, workers’ compensation carrier, and other information specified in the Act. The Act also instructed the DLSE to create a model notice that employers can use.
The DLSE issued its model notice in late December 2011 which can be obtained at: www.dir.ca.gov/dlse/LC_2810.5_Notice.pdf. Because AB 469 specifically provided that the DLSE could include additional information in the notice, the model notice calls for more information than that itemized in Labor Code section 2810.5(a). It is not mandatory that employers use the DLSE model form. However, if they prepare their own form, it must include all of the information contained in the model form.
This notice is not required if an employee is: (a) directly employed by the state or any political subdivision thereof; (b) is exempt from the payment of overtime wages by statute or wage order; or (c) covered by a collective bargaining agreement that expressly provides for wages, hours of work and working conditions, and provides for premium wage rates for all overtime worked.
One requirement contained in the DLSE’s model notice that is not itemized in the statute, is a requirement that the employer note whether employment is under an oral or written employment agreement. Most non-exempt at-will employees are not subject to a formal written employment agreement; instead they merely fill out an application and are offered – and accept – an oral offer of employment. However, if there is any writing (e.g. offer letter) that reflects the terms of employment, then the employer will need to reflect the existence of such writing on this notice.
Also, it appears that the DLSE is taking the position that in addition to new hires, employers must provide the notice to current employees. Also, as expressly provided in section 2810.5(b), if any of the information contained in the notice changes during employment, the employer is required to communicate that change to the employee within seven calendar days of such change.
Finally, while the statute does not specify what, if any, penalties can be imposed for failure to comply with the notice requirement, it is likely that the Private Attorney General Act (“PAGA”) penalties will be relied upon by employees and/or the DLSE when pursuing a non-compliance claim. Under certain circumstances, PAGA penalties can be imposed against an employer for failing to comply with various Labor Code sections. The amount of PAGA penalties can range anywhere from $100 per employee per pay period for the initial violation to $200 per pay period per employee for subsequent violations.
If you have questions about the new notice requirement, feel free to contact any of the employment lawyers at Weintraub Genshlea Chediak Tobin & Tobin Tobin & Tobin who are always available to answer questions and assist employers in all of their employment law needs. Happy New Year.