In 2011, California enacted legislation that added section 2810.5 to the California Labor Code as part of the Wage Theft Protection Act, (‘the Act”). The Act was designed to stop unscrupulous employers from paying below California’s minimum wage or making employees bear the burden of business costs by deducting typical business costs from an employee’s paycheck.
Among the Act’s several protections is Labor Code Section 2810.5. Section 2810.5 requires the employer to immediately provide specific disclosures to each employee hired, including -but not limited to- the employee’s rates of pay, the employer’s legal name and address, and the employer’s workers’ compensation carrier. The disclosures the employer must make are critical to know because if the employer fails to timely make the required disclosures, each pay period that the disclosure is not made creates a continuing liability for the employer. The first pay period missed results in a civil penalty of $100. The second and any subsequent pay period where the disclosure has not been made results in a civil penalty of $200.[i] Further, providing this information is mandatory; the employee cannot waive the notice requirement either at the time of hiring or at a later date.
Section 2810.5 (a)(1) mandates that at the time of hiring, an employer must provide a new employee a written notice containing the following information:
(1) The rate(s) of pay and how the rate is paid (for example, by the hour, salary, commission etc.) and including any rates for overtime, if applicable;
(2) Allowances, if any, that will be claimed as part of the minimum wage (such as meal or lodging allowances);
(3) The regular payday(s), as designated by the employer;
(4) The name of the employer, including any “doing business as” names used by the employer;
(5) The physical address of the employer’s main office or principal place of business, and a mailing address, if different;
(6) The telephone number of the employer;
(7) The name, address, and telephone number of the employer’s workers’ compensation insurance carrier;
(8) That an employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and has the right to file a complaint against an employer who retaliates;
(9) Any other information the Labor Commissioner deems material and necessary.
The notice must be provided to the employee in the language the employer normally uses to communicate with the employee. Example: if the employer regularly communicates in Spanish with the newly hired employee, the notice must be in Spanish.
To make it a tad easier for an employer to comply with the law, the California Department of Labor has created a template for employers to use and provide to new employees that, when filled out, will satisfy the requirements of section 2810.5 (a)(1). This form can be found online at https://www.dir.ca.gov/dlse/lc_2810.5_notice.pdf. The Department of Labor also has translated versions of this notice available in other languages besides English. An employer must fill out this form completely, provide it to the employee, and have the employee sign and date the form as acknowledgment of receipt. A copy of the signed form should be retained by the employer in the employee’s personnel file as proof of compliance with Section 2810.5. If the employee refuses to sign, keep a copy anyway and note the employee’s refusal on the copy.
Courts have found that it is explicitly the employer’s duty to provide an accurate, itemized, written new-hire notice, so employers should take care to always keep accurate records to show compliance with Section 2810.5. See Aburto v. Chartwell Staffing Services, Inc. (C.D. Cal. 2016) 2016 WL 3536169, at 5.
The last important aspect of section 2810.5 is that subsection (b) requires that an employer notify the employee in writing of any changes to the information contained in the initial notice. The employer must provide this written notice of change within seven calendar days, either on an updated form, a written letter, or another writing required by law, including workplace postings. This requirement also does not need to be followed if all the changes are reflected on a timely provided wage statement. Employers take note: the information that must be contained on a wage statement is also regulated by the California Labor Code at section 226. Make sure your wage statements are in compliance with section 226.
ANGELA R. CABRAL
This information is provided for general guidance only. Please contact your attorney or an attorney from Jon Webster Law Group for specific information or questions about the law’s applicability to a particular employee or situation.
[i] See, California’s Private Attorney General Act (“PAGA”) Lab. C. §2699(f)(1) and (2), respectively.