August 16, 2013
Posted by Cal Labor Law in New Laws & Legislation
There are a number of bills being considered by the California Legislature this session that are of interest to California employers. With the Democratic supermajority in both legislative houses, as well as a Democratic Governor, it is quite likely that more employee-friendly bills will be passed and signed into law than in recent years. The following are some of the notable pending bills:
SB 404 (FEHA/familial status): This bill would expand the list of protected categories for employment discrimination purposes under FEHA, to include “familial status.” “Familial status” is defined to include individuals who provide medical or supervisory care to a family member (child, parent, spouse, domestic partner, or parent-in-law). If signed into law, this will expand the scope of lawsuits and potential liability against employers for alleged discrimination against applicants or employees based on their familial status.
AB 556 (FEHA/military and veteran status): This bill would add “military and veteran status” to the list of protected categories for employment discrimination purposes under FEHA.
SB 400 (domestic violence/stalking): This bill would expand employment protections provided to victims of domestic abuse (Labor Code section 230) by adding a provision that prohibits employers from discriminating against applicants or employees based on their known status as victims of domestic violence, sexual assault or stalking, and would also require employers to provide time off to employees who need to attend court proceedings dealing with stalking (the law already provides for time off for proceedings relating to domestic violence and assault). Most notably, the law would require employers to provide “reasonable accommodation” to victims of domestic violence, sexual assault and/or stalking in the form of implementing safety measures for the employee while at work.
SB 655 (FEHA/mixed motive cases): This bill is intended to codify the California Supreme Court’s recent decision in Harris v. Santa Monica, specifically to codify the burden-shifting framework and remedies available in cases where there are mixed motives for an adverse employment action in a FEHA discrimination case. Under this bill, a plaintiff in a discrimination case will prevail if he/she proves that his/her protected status/activity was a “substantial motivating factor” for the employer’s decision to take adverse employment action against the plaintiff. However, the employer can try to limit its liability by pleading and proving that it would have made the same adverse employment decision even without consideration of the protected characteristic/activity. If the employer proves this, the employer will not be liable for economic damages (back pay/front pay). However, the employer will still be liable for non-economic damages (emotional distress damages), attorneys’ fees, expert witness fees, a penalty of $15,000, and possibly injunctive relief.
AB 263/SB 666 (wage complaints and immigration practices): These bills would amend Labor Code 98.6 to make clear that written or oral complaints regarding wages the employee believes are owed him/her are protected activities for purposes of the prohibition on retaliation against an employee for engaging in protected conduct. These bills would also make clear that an employee may, but is not required to, exhaust administrative remedies before filing a lawsuit. These bills would also add sections 1019 et seq. to the Labor Code, delineating certain unfair and unlawful immigration-related practices. “Unfair immigration practices” include requesting more or different documents of an applicant than are allowed under federal I-9 rules; refusing to honor documents that appear genuine on their face; using the federal E-verify program to check authorization status of a person at a time or in a manner not required or authorized under the program procedures; and threatening to file or filing a false police report. The new law would also prohibit retaliation against applicants/employees who complain about the employer’s non-compliance with these provisions and/or inform others of their rights in this regard, or who even seek information from the employer about its compliance. The new law would provide a rebuttable presumption that adverse action taken against an employee within 90 days of such protected activity is retaliatory.
AB 442 (liquidated damages for wage violations): This bill would expand the remedies available to employees who file claims with the Labor Commissioner for payment of a wage lower than minimum wage. The bill would permit the Labor Commissioner to award liquidated damages (employees can already recover liquidated damages in a civil lawsuit), in addition to unpaid wages, penalties, and interest.
AB 729 (privilege for communications with union agent): This bill would create an evidentiary privilege (similar to the attorney-client privilege) to protect from disclosure confidential communications between a union agent and a represented employee or former employee.
AB 218 (limits state/local agency inquiries into applicant criminal history): This bill would add section 432.9 to the Labor Code and would generally prevent state and local agency employers from asking applicants to disclose criminal history information, via application or otherwise, until after it is first determined that the applicant meets the minimum qualifications for the position.
AB 241 (domestic workers/wages): This bill, which was introduced but unsuccessful last year, is back. This bill would add certain wage protections for domestic workers, such as babysitters and house cleaners. With certain exceptions, the bill would require payment of daily and weekly overtime and compliance with other wage order requirements, for most household workers. With respect to babysitters, the law would exempt babysitters under age 18 and would also exempt "casual" babysitters who work no more than 6 hours per week in any given month (these employees are still entitled to minimum wage for all hours worked, however). The law also sets forth specific requirements for live-in household employees.
AB 10 (minimum wage increases): This bill provides for state minimum wage increases as follows: $8.25/hour on January 1, 2014; $8.75/hour on January 1, 2015; $9.25/hour on January 1, 2016; $9.50/hour on January 1, 2017; and $10.00/hour on January 1, 2018.
AB 25 (social media/public employers): Last year, a new law was passed prohibiting private employers from requiring applicants or employees to disclose usernames/passwords for social media and/or requiring employees to access or divulge social media. This bill would extend these provisions to public employers.
SB 770 (paid family leave expansion): This bill would expand California's paid family leave partial wage replacement program (administered through EDD) to provide wage replacement benefits to an employee who takes time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law, effective July 1, 2014. (Current law already provides such benefits to employees who take time off to care for a spouse, child, parent, or domestic partner.)
In addition to the foregoing bills being considered by the California Legislature, the Legislature already passed and the Governor already signed into law SB 292, which "clarifies" that a plaintiff claiming sexual harassment under FEHA need not prove that the harassment was motivated by sexual desire in order to prove "sexual" harassment. This is not really a change in the law, but the bill was aimed at curtailing the effect of a recent California Court of Appeal decision, Kelley v. Conco, 196 Cal.App.4th 191 (2011), which had some language suggesting that in a same-sex harassment case, evidence that the alleged harasser was heterosexual and not motivated by sexual intent or desire could defeat a harassment claim.
The full text of each of these bills, along with information on the bills' sponsors, is available here. Wondering why this list does not include all of the employer-friendly bills pending before the Legislature? (Of course there aren't any--they were all defeated early on in the session.)
The California Legislature has until September 13 to pass bills this session, and the Governor thereafter has until October 13 to sign or veto such bills.
In 2003, the Second District Court of Appeal for California, in American Airlines, Inc. v. Superior Court, 114 Cal.App.4th 881 (2003), refused to recognize a privilege for communications between a union representative and bargaining unit employee under the California Labor Code, the Railway Labor Act, common law privacy or any other provision. In 2005, Illinois became the first state to enact a statute creating a privilege for such communications. Last year, the Alaska Supreme Court in Peterson v. State, 280 P.2d 559 (Alaska 2012), created a new Alaskan common law privilege for certain communications between an employee and his/her union representative.
The California Legislature is now attempting to overturn American Airlines, and follow Illinois by creating a statutory privilege for such communications through Assembly Bill 729. AB 729 amends the California Evidence Code to create a privilege for confidential communications between an employee or former employee and his/her union agent that is similar to the attorney-client privilege. AB 729 passed the full Assembly in May by almost a 2/3 majority. Last week, the Senate Judiciary Committee voted in support of the bill 4-2. AB 729 now moves to the Senate Appropriations Committee for consideration before being considered by the entire state Senate. Unionized employers should play close attention to this piece of legislation. We will continue to keep you advised on how this develops.
California’s newest regulations pertaining to the rights of the disabled in the workplace require employers to allow “assistive animals” in the workplace as a reasonable accommodation to certain disabled employees. See CCR 7293.6 & 72940(k).
While service dogs for the visually and hearing impaired have become a more common sight in California’s workplaces, the regulations specifically permit other animals that provide “emotional or other support to a person with a disability….”
An employer need not play “possum” when confronted with an employee’s request to bring an assistive animal to the office. First, an employer may require the employee to provide medical certification from the employee’s health care provider (which, broadly defined, now includes therapists, acupuncturists, dentists, physicians, clinical social workers, nurse practitioners, midwives, chiropractors, optometrists, psychologists, and podiatrists) certifying that the employee has a disability and that explains why the assistive animal provides an accommodation.
Still got your goat? An employer may also require a certain level of training, namely that the assistive animal
- is free from offensive odors and displays habits appropriate to the work environment, for example, the elimination of urine and feces;
- does not engage in behavior that endangers the health or safety of the individual with a disability or others in the workplace; and
- is trained to provide assistance for the employee’s disability.
But an employer must act jackrabbit quick, because it is only within the first two weeks that the assistive animal is reporting to the workplace that an employer is expressly permitted to challenge the animal, based on objective evidence of offensive or disruptive behavior. (It is not clear what happens if an animal becomes violent, dangerous or its toilet training breaks down after the first two weeks). Thereafter, annually, the employer may (and should) require annual recertification of the employee’s continued need for the support animal.
As assistive animals become more common in the workplace, employers will increasingly be confronted by the potential conflict and disruptions that service animals will provide. Not only the distraction from the getting the job done, but other employees’ claims of allergy and other reactions to the animals which may then require additional accommodations. It is not clear how the courts will react to these cases as there is no precedent.
May 1, 2013
Posted by Cal Labor Law in New Laws & Legislation
California's Legislature is considering AB10 this session, which would increase California's minimum wage from the current $8 per hour to $8.25 per hour next year, to $8.75 per hour in 2015, and to $9.25 per hour in 2016. Beginning in 2017 and thereafter, the minimum wage would be automatically adjusted upward based on the state's inflation rate. Recent legislative efforts to increase California's minimum wage rate have failed and it is not clear whether this bill will fare differently. However, the bill did recently pass the Assembly Labor and Employment Committee. California's minimum wage is already one of the highest in the country. Only a handful of states have minimum wage rates higher than California's.
On the federal level, legislation has also been introduced to raise the federal minimum wage from the current $7.25 per hour to $8.20 per hour three months after the legislation is passed, to $9.15 per hour one year after the legislation is passed, and to $10.10 per hour two years after the legislation is passed. Starting the third year after the legislation is passed, the federal minimum wage would be automatically adjusted upward based on teh Consumer Price Index. The federal legislation, known as the Fair Minimum Wage Act of 2013, would also increase the minimum wage for tipped employees over the next three years from $2.13 per hour to 70% of the minimum wage.
We will post developments on this and other employment-related legislation here.
In recent years, the FMLA has been amended several times, most recently in 2009 under the National Defense Authorization Act and Airline Flight Crew Technical Corrections Act. While the most recent amendments relate to rarely used FMLA provisions, the DOL recently approved new regulations covering these provisions, and of even more significance to all FMLA-covered employers, issued a new FMLA poster effective today, March 8, 2013. The new poster is available here. All employers covered by the FMLA should begin using the new poster immediately. For more information on the most recent amendments to the FMLA, see our prior post here. Additional information relating to the new regulations is available on the DOL's website here.
We recently posted about California's adoption of new pregnancy disability regulations, which took effect December 30, 2012. On December 18, California further adopted general disability regulations governing accommodation requirements for non-pregnancy related disabilities. The disability regulations took effect December 30, 2012 and are available here. The new regulations are 23 pages in length and contain definitions of mental and physical disabilities, explain essential versus non-essential job functions, and provide detail on employer and employee responsibilities in engaging in the interactive process and providing reasonable accommodation. The new regulations incorporate the broad disability definitions and standards set forth under the recent amendments to the federal ADA, making the analysis of whether an employee is disabled much more similar under California and federal law than it used to be. In simplest terms, it is rather easy to qualify as "disabled" under California (and federal) law. Thus, in disability discrimination cases, the pivotal liability analysis will focus on the employer's response to the disability, not whether the employee qualifies as disabled. In short, almost any condition (save and except very minor conditions, such as a common cold or scrape) qualifies as a disability as long as it limits a major life activity in some way. The California regulations make clear, like the recent amendments to the ADA, that mitigating measures (such as glasses or contact lenses) may not be considered when determining whether a condition limits a major life activity. Additionally, where the major life activity of working is considered, a condition can be determined to limit an employee's ability to work even if the condition only limits the employee's performance of one particular job (as opposed to an entire class of jobs).
While the new regulations are too lengthy to summarize in their entirety in this post, there are some interesting points worth noting. First, the regulations contain a lot of discussion about considerations of transferring a disabled employee to a vacant alternative position as a reasonable accommodation. This concept is not new in and of itself. However, what is new is that the regulations expressly state that employers are required to give preference to disabled employees when filling a vacant position. The only exception is that the employer is not required to ignore a bona fide seniority system.
The regulations also discuss the circumstances under which employers may require medical documentation to support a request for reasonable accommodation. Interesting in this regard is that the regulations imply that an employer is not entitled to request medical documentation in every circumstance. The regulations instead say that the employer may request medical documentation "when the need for reasonable accommodation is not obvious." Furthermore, in situations where the employer seeks medical documentation, the employer must communicate its requests (whether initial or supplemental) through the employee (not directly to a medical provider). California (unlike federal law) continues to disallow employers from seeking diagnosis information or any medical information not necessary to determine the need for reasonable accommodation. Finally, where the employee needs reasonable accommodation for over a year, the employer may request further medical certification on a yearly basis. The regulations do not allow requests for recertification at earlier or more frequent intervals.
All California employers (in particular, their Human Resources or other personnel responsible for managing leave requests or accommodation requests) should review the new disability regulations to ensure that their practices comply with the standards set forth therein.
Yesterday, on the first day of this year’s California Legislative session, Assemblymember Luis Alejo introduced a bill that would significantly raise California’s minimum wage starting in 2014. If enacted in its current form, the California minimum wage would go to $8.25 in 2014, $8.75 in 2015 and $9.25 in 2016. Starting in 2017, the minimum wage would be automatically adjusted based on inflation indexes. For a complete copy of the bill, you can click here. With the Democrats holding supermajority status in the Assembly and State Senate, we expect many pro-employee bills to be introduced in the coming months. We will track them for you throughout the Legislative session.
California's Fair Employment and Housing Commission recently proposed new pregnancy disability regulations. These proposed regulations underwent rounds of public comment and revision, but were recently finalized and approved by California's Office of Administrative Law. As such, the new regulations take effect December 30, 2012. The new regulations are available here. California employers with 5 or more employees are required to provide up to 4 months of pregnancy disability leave to employees disabled by pregnancy or related conditions and there is no length of service requirement to be eligible for this leave. The new regulations detail the process an employer is required to follow in accommodating such leave requests, from initial certification through reinstatement. The regulations also clarify how "four months" is calculated for purposes of identifying the maximum amount of leave available to full-time and part-time employees. The regulations further make clear (based on a recently enacted California law) that employers are required to maintain group health benefits under the same terms as if the employee was actively reporting to work for up to 4 months, and that this requirement is in addition to any additional obligation to maintain health benefits during an an additionally approved FMLA/CFRA leave of up to 12 weeks. The new regulations contain a great amount of detail and guidance for employers trying to manage this leave process. Employers are advised to review the rules and their policies and practices to ensure compliance.
The FEHC also has proposed regulations pending on disability (non-pregnancy) leaves. Those rules are not yet final, but are available here for employers who are interested in reviewing and possibly providing comment and/or proposed changes to the FEHC. A public comment period is currently underway through December 17, 2012. We will post developments here.
The Internal Revenue Service has announced the standard mileage reimbursement rate for business travel for 2013. Effective January 1, 2013, the standard mileage rate will be 56.5 cents per mile (up from 55.5 cents per mile in 2012). The IRS announcement is here. Although California employers are not required to reimburse employee travel at the IRS mileage rate, it is advisable to do so because other methods for providing adequate reimbursement are more difficult and burdensome to prove.
California employers with employees in the cities of San Francisco and San Jose should take note of minimum wage increases for these cities taking effect in 2013. San Francisco passed its minimum wage ordinance a few years ago, but the minimum wage is subject to adjustment each year based on the cost of living. Effective January 1, 2013, the minimum wage for employees who perform at least two hours of work per week in the City of San Francisco is $10.55 per hour (up from $10.24/hour in 2012).
This week, San Jose voters approved a local minimum wage for the City of San Jose as well. With the passage of Measure D, the minimum wage for employees working in San Jose will be $10.00 per hour. The new San Jose minimum wage takes effect 90 days after the election results are certified, which means approximately March 2013.
The state minimum wage otherwise remains at $8.00 per hour.