2013 California Legislative Round-Up
November 1, 2013 by Beeson Tayer & Bodine
Contributors: Peter McEntee, Susan Garea, Vishtasp Soroushian, Adrian Barnes, Christopher Hammer, Dalisai Nisperos and Kate Hegé. Edited by Teague Paterson.
As has become a ritual in recent years, Governor Brown signed a large number of labor and employment related statutes at the end of the legislative season. This year was no exception. Generally, the new labor and employment-related laws for 2013 are narrow “fixes” or modest expansions of existing laws, although we report on several notable worker-protection achievements. Cumulatively, the new laws have significant impact on:
- Bargaining under the Meyers-Milias-Brown Act;
- Protections for immigrant workers;
- Greater coverage under FEHA;
- Prevailing wage enforcement and coverage;
- Wage and hour enforcement;
- An increase in the minimum wage and extension of overtime to domestic workers.
Below we have summarized the new state laws, in the following categories: Wage and Hour, Public Sector Collective Bargaining, Immigrant Worker Protections, Prevailing Wage, Employment Discrimination and Leave Entitlement, Regulation of Employment Applications, and Employment in Specific Industries. All of these new laws, unless noted otherwise, become effective on January 1, 2014. As always, do not hesitate to contact us if you would like more information.
Wage and Hour Standards
Increased Minimum Wage (AB 10)
State and local “raise the wage” campaigns are having an effect, while inaction on the federal level persists. Under AB-10 the minimum wage will increase from $8.00 to $9.00 per hour beginning July 1, 2014. Two years after that, the minimum wage will again increase, to $10.00 on January 1, 2016. Under AB-10, California remains a leader in setting minimum wage standards; only Washington State, which has an inflation-adjusted minimum wage scale, is currently higher.
Criminal Penalties to Employers that Neglect Wage Withholding Laws (SB 390)
This bill expands Labor Code section 227, which makes it a crime for an employer to fail to make agreed-upon payments to health and welfare funds, pension funds, or benefit plans. Now it is also a crime to fail to remit to the appropriate agency any wages withheld pursuant to state, local or federal law. This includes failures to deposit withholdings for federal and state taxes and State Disability Insurance.
Enforcement of Employee’s Right to Recovery or “Cool Down” Periods (SB 435)
Labor Code section 226.7 provides that employees denied a meal period or rest break are entitled to an additional hour of pay. This provision has now been expanded to include employees who have been denied a “recovery” or “cool down” period in order to prevent heat stress or illness. Employees who work out of doors are entitled to a recovery period under applicable Cal-OSHA regulations, and now can enforce this entitlement and recover an additional hour of pay if their employer prohibits a cool down period. Currently, the regulations require employers to provide a shaded area, and to allow employees to take at least a five minute break, as needed, when the temperature exceeds 85 degrees.
Additional Penalties for Minimum Wage Violations (AB 442)
This law authorizes the Labor Commissioner to collect ‘liquidated damages’ on behalf of the employees of an employer who has committed wage theft by failing to pay the minimum wage. The amount of liquidated damages is equal to the amount of unpaid wages, and therefore, this law doubles the damages due the underpaid employees. Prior to this amendment, the Labor Commissioner could only collect unpaid wages from the employer as well as a civil penalty of $100 for the first offense and $250 for subsequent offenses.
Faster Collection by Labor Commissioner on Wage Claims(AB 1386)
This law provides for an automatic judgment and lien on an employer and its property when the Labor Commissioner issues an administrative order on a wage claim action. Prior to AB 1386, the Labor Commissioner was required to formalize orders with the Superior Court by obtaining a judgment. Now, the Labor Commissioner may directly record a certificate of lien with county recorders and the county recorder is required to accept, record, and index the certificate of lien.
Greater Protections for Immigrant Workers
Protection from Employer Retaliation (AB 263)
AB 263 provides a comprehensive framework for protecting immigrant workers from retaliation when they exercise their rights under the Labor Code. The law specifically prohibits employers from taking the following actions when motivated by retaliation: (1) requesting new or different immigration documents or refusing to honor documents that appear on their face to be genuine; (2) misusing the federal E-Verify program; (3) threatening to file or filing a false police report; and (4) threatening to contact or contacting immigration authorities. Importantly, the law establishes a presumption of retaliation if the employer takes any of these actions within 90 days of a worker exercising a right under the Labor Code. Workers are authorized to sue their employer in court and, as an additional remedy, empowers courts to temporarily suspend the business license of employers found to have violated worker rights and to impose a $10,000 civil penalty.
AB 263 also expands discrimination protections for retaliation against workers that exercise their rights under the Labor Code to explicitly include “adverse actions” taken against the employee, and expands retaliation protections to workers who make oral or written complaints about wage theft directly to their employers. Workers who update their personal information are protected from employer adverse action, discrimination, or retaliation.
Suspension or Revocation of Employer’s Business License for Retaliation Against Employees Based on Citizenship/Immigration Status (SB 666)
SB 666 overlaps with AB 263, described above, but provides additional remedies to immigrant workers that exercise their rights under the Labor Code. The law designates as an “adverse action” the reporting of employees’ or their family members’ suspected immigration status to a governmental agency because of the employee’s legally protected activity under the Labor Code. The law also authorizes the Labor Commissioner or a court to suspend or revoke the business 2 license of an employer who makes such a report. Importantly, SB 666 authorizes the California State Bar to discipline, suspend, or disbar an attorney who engages in a retaliatory immigration threats or reports against a witness of her family members to a governmental agency.
Prohibition on Threats Regarding Immigration Status (AB 524)
AB 524 amends section 519 of the Penal Code, providing that the crime of extortion may include extortionate threats to report the actual or suspected immigration status of an individual or his or her relative. This new law will allow prosecution of individuals who have threatened to report an individual’s immigration status and may prove to be a tool to combat employers who threaten to report an employee’s immigration status in order to prevent employee from enforcing his or her rights under the Labor Code or the NLRA.
Public Sector Labor and Employment
MMBA: Adoption of MOUs and Enforcement of Arbitration Provisions (AB 537)
This bill clarifies the rules for consummating negotiated MOUs under the MMBA, as well as the scope of PERB’s and the courts’ jurisdiction over disputes encompassed under an MOU’s grievance arbitration provision. Once the bargaining parties have reached an agreement over terms and conditions of employment, the governing body of the public employer must vote to accept or reject the agreement within 30 days of the date it was first presented for consideration. The bill further requires the parties to jointly prepare an MOU upon adoption of the tentative agreement by the governing body. The bill also provides that an MOU’s arbitration provision is enforceable, even if the dispute involves conduct that could be the subject of a PERB unfair practice charge. The law further prohibits employers from refusing to arbitrate based on a procedural defense, for example, timeliness. Any procedural defenses to arbitration must be presented to the arbitrator for resolution, and not to the courts.
Expansion of Union Representative’s Right to Paid Time Under MMBA (AB 1181)
Existing law under the MMBA requires employers to pay their employees who serve as union bargaining representatives for their time served formally meeting and conferring with the employer during working hours. This new law extends the right to paid time for union representatives who serve as the Union’s designated representative at conferences, hearings or other proceedings before PERB or at hearings before personnel or merit commissions. This is an important expansion of the current law, allowing public sector union representatives to take part in hearings related to the union’s representation of their members without losing pay.
Public Employer Prohibition to Social Media Sites (AB 25)
Last year, the legislature passed AB 1844 prohibiting employers from requiring or requesting their current employees or applicants to disclose usernames and/or passwords used for accessing personal social media, requiring a user to access personal social media in the employer’s presence (also called “shoulder surfing”), or divulging any personal social media content. This bill expands these protections to all public sector employees, ensuring they are also protected.
Employment Discrimination and Leaves
Expanded Definition of “Family” for Paid Family Leave (SB 770)
The California Family Rights Act allows eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Leave under CFRA is generally unpaid, however, the California’s Paid Family Leave program allows employees to be paid temporary disability insurance benefits for taking leave to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a minor child, including foster or adopted child. SB 770 broadens the Paid Family Leave program’s definition of “family” to permit workers caring for their seriously ill siblings, grandparents, grandchildren, and/or parents-in-law to also receive Paid Family Leave benefits.
Military and Veteran Status Now Protected Under FEHA (AB 556)
This law adds military or veteran status to the list of protected categories under FEHA in the employment context. “Military or veteran” status is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, United States National Guard, and the California National Guard. As a result, employers may not discriminate against service members, as they are now afforded the same protections as the other protected categories.
Employment Protection for Victims of Stalking (SB 400)
SB 400 provides employment protection to domestic violence and sexual assault victims. The law preserves employment rights of victims who take time off to obtain relief, such as psychological counseling or to pursue a temporary restraining order. The new law also requires an employer to provide reasonable accommodations to an employee who is a victim of stalking, and prohibits taking adverse actions against employees who exercise their rights under the statute.
Employment Protections for Victims of Crime (SB 288)
SB 288 adds section 230.5 to the California Labor Code, now prohibiting an employer from discharging, discriminating or retaliating against an employee who has been the victim of a serious criminal offense and must take time off from work to appear in court for any proceeding involving the employee’s rights as a victim, as provided under California’s declaration of victims rights. Employees must provide the employer with reasonable notice in advance of taking time off, unless advanced notice is not feasible. Note that the employee need not be called to testify or otherwise required to attend the hearing to be protected.
Sexual Harassment Claims (SB 292)
The bill addresses a 2011 ruling in Kelley v. Conco Companies, in which an appellate court ruled that a plaintiff who brings a sexual harassment claim under the Fair Employment and Housing Act must prove that the harassment was motivated by sexual desire. That decision — which many viewed as contrary to the intent and language of FEHA — is now overridden by SB 292, which amends FEHA’s definition of sexually harassing conduct to clarify that the conduct need not be motivated by a sexual desire on the part of the harasser.
“Ban the Box” Goes Public in California (AB 218)
In response to ongoing “Ban the Box” campaigns and increased awareness, California has ‘banned the box’ in public employment. The “box” refers to the square applicants are asked to check in the event they have ever been convicted of a crime. The “box” is viewed as a significant barrier to re-entering the workforce, as many employers will not consider qualified applicants with criminal histories, no matter how long-past. AB 218 addresses this in the public employment sector. Under current law, no employer may ask applicants for information about arrests or detentions that did not lead to a criminal conviction. Starting on July 1, 2014, state and local agency employers may not request information regarding criminal convictions at the outset of the application process, and not until the agency has determined that the applicant meets the minimum employment qualifications. These provisions do not apply for positions where a state or local agency is required by law to conduct a background check, any position within a criminal justice agency, or any individual working on a temporary, permanent or contract basis for a criminal justice agency.
Prohibition On Obtaining Expunged Conviction Information (SB 530)
Senate Bill 530 amends California Labor Code Section 432.7 to expand protections for California job applicants. Current law prohibits employers from asking job applicants to provide information relating to an arrest that did not result in a conviction. With few exceptions, employers are now prohibited from seeking out, or asking applicants to disclose, information about a conviction that has been expunged or judicially dismissed. Employers may not use this information to decide whether to hire or fire the applicant or decide whether to provide training leading to employment. Employers that violate these restrictions may be liable to the applicant for damages.
Criminal Background Checks for Private School Employees (AB 389)
Current law requires public school districts and charter districts to conduct a background check on any person employed by the District through the Department of Justice, and the districts receive notification of any subsequent arrest through the Department. This new law requires private schools and nonpublic schools (private schools that receive public funding) to fingerprint their employees who have contact with pupils. The bill also provides that as part of the Superintendent of Public Instruction’s certification of nonpublic schools, the SPI must be given access to evidence that demonstrates that the schools are conducting the required background checks.
Prevailing Wage on Charter City Public Works (SB 7)
SB 7 is a response to last year’s California Supreme Court ruling in State Bldg. & Constr. Trades Council of California v. City of Vista, which held that charter cities are not required to comply with the state’s prevailing wage laws, as well as to conservative groups that have, and continue to pursue, voter initiatives prohibiting prevailing wage requirements on the local level. SB 7 responds by cutting off state funding for any public works projects that do not comply with state prevailing wage requirements. Specifically, the new law prohibits charter cities from receiving state funding or financial assistance for construction projects if the city has enacted a rule that exempts public works contractors from prevailing wage provisions.
New Procedures for Determining Whether a Construction Project is Public Work (SB 377)
This bill makes a number of changes to the process in which the Director of Industrial Relations determines whether projects are public works. Now, when a request is made for a determination of whether a project or type of work awarded or undertaken by a political subdivision is a public work, the Director must make that determination within 60 days of receipt of the last support or opposition letter; for projects that are private but receive public funds, the determination must be made within 120 days. The time for appeal is reduced to 30 days, and decisions on appeal can be reviewed by the courts. The bill also extends the statute of limitations for prevailing wage claims and payroll record demands, such that the period does not begin until the Director has made a determination that the project is a public work, the period during which the Labor Commission must issue civil wage and penalty assessments to contractors violate laws regulating public works projects and the period during which a joint labor-management committee must commence an action, are tolled.
Joint-Labor Management Committee Enforcement of Prevailing Wage (AB 1336)
Previously, joint labor-management committees were authorized to bring actions against employers for prevailing wage claims on public works projects within 180 days after the filing of a notice of completion or 180 days after acceptance of the public work, whichever occurred last. Under AB 1336, the time period to sue is extended to 18 months. The bill also expands remedies, permitting courts to award restitution to an employee for unpaid wages, plus interest accruing from the date the wages should have been paid, and additional liquidated damages equal to the amount of unpaid wages owed. This bill also removes the requirement that contractors and subcontractors remove employees’ names from payroll records before providing them. Although employees’ social security numbers must be removed, when records are requested by a multiemployer or Taft-Hartley fund for the purpose of allocating contributions, the last 4 digits of the social security numbers must be provided.
Employment Protections in Specific Industries
Domestic Worker Bill of Rights (AB 241)
With the passage of AB 241, The Domestic Worker Bill of Rights, California became the second state in the country to extend overtime protection to “personal attendants.” Personal attendants are caregivers and child care providers who spend at least 80 percent of their time caring for children, the elderly or people with disabilities in the home. As of January 2014, personal attendants will be entitled to time and a half of their regular rate of pay for all hours over 9 per day or 45 hours per week. Certain categories of personal attendants are excluded, including In Home Support Service workers and casual babysitters. The bill will sunset on January 1, 2017.
Successor Liability for Farm Labor Contractors (SB 168)
SB 168 establishes that a farm labor contractor successor is liable for wages and penalties owed by a predecessor farm labor contractor. The wage and penalty liability attaches to the successor farm labor contractor when the successor: (a) uses substantially the same facilities or workforce to offer substantially the same services as the predecessor farm labor contractor; (b) shares in the ownership, management, control of the workforce, or interrelations of business operations with the predecessor farm labor contractor; (c) employs in a managerial capacity any person who directly or indirectly controlled the wages, hours, or working conditions of the employees owed wages or penalties by the predecessor farm labor contractor; or (d) is an immediate family member of any owner, partner, officer, licensee, director or of any person who had a financial interest in the predecessor farm labor contractor. This legislation is an important tool for employees of farm labor contractors to use in collecting on money judgments won for wages owed, which has been particularly difficult in this industry.
Car Wash Labor Protections (AB 1387)
Current law requires car washes to register with the Labor Commissioner and pay a specified registration fee. The fees collected are used by the Labor Commissioner to administer laws regulating the employment practices of car washes, such as specific record keeping requirements employers of car washers must implement. Current law also requires employers of car washes to post a $15,000 bond for the benefit of the state to compensate employees damaged by the employer’s nonpayment of wages. These provisions were set to expire on January 1, 2014. This bill increases the bond requirement amount to $150,000, but exempts an employer from posting the bond if the employer has a collective bargaining agreement in place. The bill also deletes the sunset date, extending these provisions indefinitely.
Garment Manufacturing Failure to Post Penalty (AB 1384)
Garment industry employers must register with the Labor Commissioner and display their name, address, and registration number on the front entrance of the place of business. This bill imposes a civil penalty ($100 per day for an initial citation and $200 per day for a subsequent citation) on any person who engages in garment manufacturing without displaying this information. This new law was passed to provide an enforcement mechanism for this important disclosure requirement intended to ensure that garment manufacturers cannot escape liability.
The material on this website is provided by Beeson, Tayer & Bodine for informational purposes only and does not constitute legal advice. Readers should consult with their own legal counsel before acting on any of the information presented. Some of the articles are updated periodically, and are marked with the date of the last update. Again, readers should consult with their own legal counsel for the most current information and to obtain professional advice before acting on any of the information presented.