Employment Legislation On the Horizon in California
By Ryan McCoy and Catherine Ngo
Several pieces of employment-related legislation are pending before the California Legislature this 2009-2010 term. Some of the more noteworthy items are listed and described as follows:
AB 569 (Emmerson) - This bill would specifically exempt construction employees, commercial transportation drivers, and employees in the security services industry from the meal period provisions of Labor Code section 512 provided that the employees are covered by a collective bargaining agreement meeting certain conditions. Thus, assuming a valid collective bargaining agreement, an employer in the above industries would not be required to provide a meal period to an employee who works more than five hours in a given work day. The bill was passed by the Assembly 72-2, and currently the bill awaits hearing in the Senate Committee on Labor and Industrial Relations.
This bill is supported by the likes of the United Parcel Service ("UPS"), who has argued that the bill would allow unionized transportation companies to negotiate flexible terms for the timing of meal periods because current law significantly restricts the freedom of drivers to decide for themselves when they can take their meal periods. Additionally, the Associated General Contractors argued in support of the bill that although many construction companies and their employees operate under a collective bargaining agreement, recent case law has rendered their agreements inoperative because the meal break statutes supersede any such private agreements. The opposition appears to come primarily from those who believe that the statute should be applied to all industries, instead of just those provided for in the statute. Of course, it is obvious that more clarity is needed with respect to meal and rest break provisions, and it is hoped that the California Supreme Court provides clarification on this issue in its pending decision in Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum).
AB 2727 (Bradford) - This bill would prohibit an employer from denying an application for employment for the reason that the applicant has previously been convicted of a criminal offense unless the employer determines that a) there is a direct relationship between the prior conviction and the employment sought or b) the granting of employment would involve an unreasonable risk to property or persons. This is an expansion from current legal prohibitions on consideration of criminal history. Currently, the bill sits in the Assembly Appropriations Committee awaiting a re-hearing after initially passing the Committee on strict party lines.
According to the author, this bill is intended to codify existing federal EEOC policy into state law. However, this bill is strongly opposed by several groups representing private employers, including the California Chamber of Commerce, all of whom argue the bill goes beyond current EEOC policy. The Chamber specifically argues that it "increases potential liability exposure for hiring decisions by restricting the ability of employers to make their decision based on a job applicant's criminal conviction." Furthermore, the bill places yet another unreasonable burden on employers, which must take into account such factors as protection of the public, other employees, and property when making hiring decisions.
AB 2772 (Committee on Labor and Employment) - This bill clarifies that an employer wishing to appeal a Labor Commissioner decision with the superior court must first post a bond in the amount of the judgment rendered in the administrative hearing. This bill is intended to supersede a California appellate ruling, Progressive Concrete Inc., v. Parker, 136 Cal.App.4th 540, 548 (2006), which held that the bond requirement of Labor Code section 98.2(b) is merely "directory," instead of "mandatory and jurisdictional." This bill states that the bond is indeed mandatory, and the employer would thus be required to first post a bond with the reviewing court in the full amount of the Decision of Award issued by the Labor Commissioner. There is no opposition to the bill currently on file. The bill unanimously passed the Assembly Committee on Labor and Employment, and awaits hearing on the Assembly floor.
AB 2773 (Swanson) - This bill would eliminate current judicial discretion to deny attorneys' fees in a case other than a limited civil case, if the prevailing party recovers a judgment that could have been rendered in a limited civil case. Thus, this bill would overrule the California Supreme Court in Chavez v. City of Los Angeles, 47 Cal.4th 970 (2010), which held that a trial court has discretion in a FEHA case to deny a successful plaintiff his attorneys' fees when the plaintiff chooses to proceed in an unlimited civil jurisdiction, but recovers less than the jurisdictional minimum. After passing the Assembly Judiciary Committee on strict party lines, the bill now awaits hearing on the Assembly floor.
While its supporters contend that this bill will make the system more fair and equitable, groups such as the Civil Justice Association of California oppose the bill, arguing that it would "undo a judicial deterrent to filing frivolous lawsuits." The California Chamber of Commerce has also commented that this bill "unreasonably increases business litigation costs by removing judicial discretion to reduce or eliminate exorbitant legal fees in fair employment and housing cases."
AB 2340 (Monning) - This bill gives California employees the right to take three days of unpaid leave in the event of the death of certain relatives. More specifically, the bill prohibits an employer discharging, disciplining, or discriminating against an employee for requesting or taking up to three days of bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner. The bereavement leave can be taken up to thirteen months following the death, and need not be on consecutive days. Last week, this bill was passed by the Assembly Appropriations Committee on a 11-5 margin and will now make its way to the Assembly floor. Notably, similar legislation was vetoed in 2007 by the Governor Schwarzenegger after passing both the Assembly and Senate.
SB 908 (Wyland) - This bill would exempt employers in the armored car industry from the requirement to provide a meal period to their employees. The bill's author maintains that employees driving armored cars need specific statutory treatment due to both public safety and environmental concerns. As such, this bill represents another attempt to exempt a specific class of employees from general meal break provisions. As detailed in previous blog posts, the development of meal and rest break provisions is otherwise in somewhat of a holding pattern due to the looming California Supreme Court decision, Brinker Restaurant Corp. v. Superior Court of San Diego County (Hohnbaum). Currently, this bill awaits hearing in the Senate Committee on Labor and Industrial Relations.
SB 990 (Dutton) - This bill also seeks to clarify meal break laws by making clear that the requirement to "provide" a meal break means "to make the break available." The bill would also clarify circumstances under which an employee could waive a meal period or agree to an on-duty meal period. This bill still awaits hearing in the Senate Committee on Labor and Industrial Relations.
SB 1304 (DeSaulnier) - This bill requires private employers to permit employees to take up to 30 days of paid leave for an organ donation and up to five days of paid leave for a bone marrow donation. The bill also prohibits retaliation against employees who take this leave, and would authorize an employee to bring a civil action to enforce the provisions of this bill. Though this bill is certainly well-intentioned and designed to encourage organ and bone marrow donations, many groups, including the California Chamber of Commerce, oppose the bill because a new private sector mandate is not the correct policy to advance an otherwise laudable goal. As small business bankruptcies are at an all-time high in this state, many argue that increasing the cost of doing business in an already costly environment is not a good idea to pursue at this time. After passing the Senate Judiciary Committee, this bill has been forwarded to the Senate Appropriations Committee.
SB 1370 (Ducheny) - This bill requires that employees who are paid by commission are provided with a written contract on the terms and conditions of employment. Under existing law, contracts must be in writing if 1) the employer has no permanent and fixed place of business in California, 2) the employer is entering into a contract of employment with an employee for services to be rendered within California, and 3) the contemplated method of payment involves commissions. Under this legislation, any and all employment contracts that envision commissions as a form of payment must be in writing, regardless of where the employer is located and/or where the employee's services are to be performed. This bill was passed by the Senate Committee on Labor and Industrial Relations, and awaits referral to the full Senate.
Employers potentially impacted by the foregoing pending legislation may wish to lodge support or opposition through appropriate channels.