California Legislative Watch: Pending Labor and Employment Bills
Topics: 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.