California Labor &
Employment Law Blog

Mar. 15 2017

California Legislative Watch:  New Employment Bills

Topics: New Laws & Legislation

Each legislative session, there are a number of employment-related bills introduced -- some of which are helpful for California employers (and almost always get killed in committee early on) and others which are bad for California employers.  Here is a list of notable bills that have been introduced this session:

AB 5 – This bill, known as the “Opportunity to Work Act” would add section 559 to the Labor Code and require employers with 10 or more employees to offer additional hours to existing non-exempt employees before hiring new employees (including subcontractors and/or staffing agency employees).  The bill would not require employers to offer additional hours to an employee if doing so would necessitate the employee working overtime and being owed overtime compensation.  The bill would allow employees to sue in court for violations and to recover attorneys’ fees if they prevail.  The City of San Jose adopted a similar law last year, and the Cities of San Francisco and Emeryville have similar ordinances in place for retail employees.

AB 46 – This bill would amend Labor Code 1197.5 (equal pay law), which prohibits employers from paying a lower wage rate to employees on the basis of gender, race, or ethnicity.  This bill would clarify that these provisions apply to both public and private employers.

AB 168 – This bill is one that we’ve seen before and thus far, the legislature has not been successful in getting the bill signed into law.  Being a determined bunch, they are trying again.  This bill would prohibit employers from seeking prior salary information from applicants and would also require employers, upon request, to provide the pay scale for a position to an applicant.

AB 1008 – This bill is a “ban the box” measure and would amend FEHA to make it an unlawful practice for an employer to inquire about an applicant’s criminal conviction history (on an employment application or otherwise) prior to making a conditional job offer.  An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s prior conviction of a crime must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.  If the employer makes a preliminary decision that the applicant’s conviction history disqualifies him or her from employment, the employer shall notify the applicant of this preliminary decision in writing and (1) identify the conviction at issue; (2) provide a copy of the conviction history report; and (3) provide the applicant at least 10 business days to respond and to either challenge the accuracy of the information and/or provide evidence of mitigation or rehabilitation (defined by the bill to mean evidence showing that at least one year has elapsed since release from prison without subsequent conviction of a crime, evidence showing compliance with terms and conditions of parole, and/or any other evidence of present fitness such as letters of reference). If the applicant provides such evidence, the employer shall not disqualify the applicant from employment.  If an employer does decide to deny employment based on a criminal conviction, the employer must notify the applicant in writing and disclose information concerning any existing procedure the employer has to challenge the decision or request reconsideration, whether the applicant may be eligible for other employment or occupation with the employer, the earliest date the applicant may reapply for a position of employment, and the employee’s right to file a complaint with the Department of Fair Employment and Housing.

AB 442 – This bill would limit state enforcement actions for certain non-serious OSHA violations against small businesses and microbusinesses by providing that such actions may not be commenced unless the agency first gives the employer notice of the violation and 30 days to cure.

AB 281 – This is a favorable bill that would amend PAGA by expanding employers’ right to cure alleged violations prior to an employee being permitted to file a lawsuit against the employer.  The bill would exclude only alleged health and safety violations from the right to cure provision, and the bill would expand the time period for an employer to cure violations from 33 days to 65 days.  Finally, the bill would provide that only an employee who has actually suffered from an alleged violation may recover civil penalties.

AB 1429 – This bill would amend PAGA to limit actions for PAGA penalties to claims alleging violations of Labor Code 226, 226.7, 510, or 512.  However, the bill also would eliminate the existing right to cure provisions of PAGA.  I suspect this bill will undergo amendments.

AB 1430 – This bill is yet another effort to amend PAGA.  This bill would greatly limit employees’ ability to sue under PAGA by providing that an employee may only file a civil lawsuit if the employee first provides notice of the alleged violations to the Labor Workforce Development Agency AND receives a notice from the agency stating that the agency determines that there is a “reasonable basis” for the lawsuit.  The bill requires the agency to investigate charges within 120 days of receipt and issue a determination as to whether or not there is a reasonable basis for a lawsuit.  If the agency determines that there is a reasonable basis or fails to issue any determination within 120 days, the employee can file suit.

AB 1173 – This bill would allow employees in the retail industry, with approval of their employers, to work an alternative workweek schedule of 10 hours per day/40 hours per week without payment of overtime during the holiday season (November to January).

AB 353 – This bill would allow private employers to establish and maintain a policy that provides for preferential hiring and retention of veterans.

AB 568 – This bill would require school districts and community colleges to provide paid maternity leave.

AB 1099 -- This bill would require an employer who allows a patron to pay for services by debit or credit card to also accept a debit or credit card for payment of gratuity, payable not later than the next regular payday.

AB 1174 – This bill would make California a “right to work” state by prohibiting an employee from being required, as a condition of employment, to contribute financial support to a union.

SB 62 – This bill would amend the California Family Rights Act by expanding the list of family members for whom an employee may take up to 12 weeks off to provide care.  The expanded definition would include grandparents, grandchildren, siblings, domestic partners, and adult children.  There have been prior unsuccessful attempts to sign similar bills into law.

SB 63 – This bill is very similar to a bill that was vetoed by Governor Brown last year.  The bill would require California employers with 20 or more employees to provide up to 12 weeks of job-protected leave to eligible employees to care for/bond with a new child.  California law (CFRA) already provides for such leave for employees working for large employers (50 or more employees).  This bill would expand the leave requirements to smaller employers.

SB 482 – This bill would permit employers in the home health care industry to agree with a live-in domestic employee that a regular period of up to 8 hours of sleep time may be excluded from compensable hours worked. This bill is intended to respond to industry concerns caused by the California Supreme Court’s recent decision in Mendiola v. CPS Security Solutions.

SB 524 – This bill would establish a limited affirmative defense for employers in wage lawsuits in circumstances where the employer proves that it relied in good faith on a published enforcement policy or opinion letter of the DLSE.  Similar bills have failed in the past.

In addition to the foregoing, there are a number of “spot” bills (i.e. placeholders) that may be amended and used to introduce additional employment-related proposals as the legislative session continues.  We will keep you posted as to significant developments.

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For over 20 years, CDF has distinguished itself as one of the top employment, labor and immigration firms in California, representing employers in single-plaintiff and class action lawsuits and advising employers on related legal compliance and risk avoidance. We cover the state, with five locations from Sacramento to San Diego.

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About the Editor

Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws.
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