California Labor &
Employment Law Blog
Jun 5, 2017

California Legislative Update

Topics: New Laws & Legislation

At the California Legislature, last Friday was the last day for bills to be passed out of their house of origin.  As is usually the case in the Golden State, the bills that California’s legislators approved are largely bad for employers, with the helpful bills having been killed early on in committee.  The bills that passed their house of origin are still far from becoming law (they still have to be passed by the second house and signed into law by the Governor), but they are on that path at this time.  Here’s the list of bills moving on for consideration by the second house of the Legislature:

SB 63 (New Parent Leave):  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.  This bill is very similar to a bill that  was vetoed by Governor Brown last year.

AB 450 (Penalty for Cooperating with ICE):  This bill would prohibit California employers from providing federal government enforcement agents access to worksites or to employment records (including I-9 forms) without a judicial warrant or subpoena. The bill would authorize the Labor Commissioner to recover civil penalties of between $10,000-$25,000 for employer violations of these requirements.  The bill would also require employers to provide at least 24 hours' advance written notice to employees and to the Labor Commissioner of impending immigration worksite enforcement actions (audits or inspections of I-9 forms or other employment records, worksite interviews, investigations, and/or raids). The employer also would have to give the Labor Commissioner access to the workplace and allow the Labor Commissioner to conduct its own investigation(s) -- including into unrelated labor standards matters.  In the event a federal immigration agent appears at the worksite without advance notice, the employer would have to notify the Labor Commissioner immediately and provide the Labor Commissioner access to the worksite.  Under the bill, the Labor Commissioner would have the authority to notify affected employees that they have the right to remain silent, the right to speak to a lawyer before answering questions, and the right to speak to his or her foreign consulate. Again, an employer's failure to comply with these notice provisions would subject the employer to fines of between $10,000-$25,000.

AB 1209 (Pay Data/Gender):  This bill would require employers with 250 or more employees to submit to the Secretary of State’s Office, and post on a public Internet site, information on gender pay differentials, including (1) the difference between the mean salary of exempt male employees and exempt female employees, by job classification; (2) the difference between the median salary of exempt male employees and exempt female employees, by job classification;  and (3) the differences in the mean and median compensation of male and female board members.  This data would not take into account any justifications for reported pay differentials.

AB 1565 (Salary Increase for Exempt Status):  This bill would increase the minimum salary for exempt executive, administrative, or professional workers to $47,472 or twice the state minimum wage, whichever is greater.  As California's minimum wage continues to rise, a salary of twice the state minimum wage eventually will be a number greater than $47,472.  Until that time, $47,472 would be the minimum salary for exempt status in California. 

AB 168 (Prior Salary Information):   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.  The Legislature has tried to get similar bills signed into law in recent years, but thus far has not succeeded.

AB 1008 (Criminal History):  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 569 (Discrimination Based on Reproductive Health):  This bill would add Labor Code 2810.7 to the Labor Code to prohibit an employer from taking any adverse employment action, as defined, against an employee based on his or her reproductive health care decisions, methods, or the use of any drug, device, or medical service related to reproductive health by an employee or employee’s dependent.  The bill would also prohibit requiring an employee to sign a code of conduct or similar document that purports to deny any employee the right to make his or her own reproductive health care decisions, including the use of a particular drug, device, or medical service.  The bill would require an employer that provides an employee handbook to its employees to include in the handbook notice of the employee rights and remedies under the provisions of this bill.

AB 568  (School Employees – Paid Maternity Leave):  This bill would require school districts and community colleges to provide paid maternity leave.

AB 1099  (Tips – Gig Economy):  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.

SB 201 (CBA Rights for Student Employees):  This bill would grant collective bargaining rights to student employees of the University of California, California State Universities, and Hastings College of Law.

SB 306 (Expanded Labor Commissioner Power; Retaliation Claims):  This bill would amend several Labor Code provisions to strengthen Labor Commissioner power in investigation retaliation claims, including by allowing the Labor Commissioner to petition a court for, and to secure, temporary injunctive relief against an employer based on a showing of “reasonable cause” to believe that an employee has been the victim of retaliation.  The bill would also allow the Labor Commissioner to recover attorneys’ fees.

AB 46 (Equal Pay Law Amendment):  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 263 (Emergency Medical Services Workers/Rest Breaks):  This bill would allow certain emergency medical services workers to remain “on-call” during rest breaks. 

AB 353 (Veteran Hiring Preference):  This bill would allow private employers to establish and maintain a policy that provides for preferential hiring and retention of veterans.

The foregoing bills will be considered by the non-originating house between now and September 15, 2017.  Bills that are passed by both houses will then be presented to Governor Brown to veto or sign into law by October 15, 2017.

For those who are interested, the following are the key employment-related bills that were killed by the Legislature over the last few months:

AB 281/1429/1430 (PAGA Amendments):  These bills would have amended PAGA to allow certain rights to cure before a lawsuit could be brought, as well as other amendments intended to curb abusive PAGA litigation.

AB 1173 (Retail Employees/Alternative Workweeks):  This bill would have allowed employees in the retail industry to volunteer to work an alternative workweek schedule (e.g. a 4/10 schedule) without payment of overtime during the holiday season.

AB 442 (OSHA Actions):  This bill would have limited OSHA enforcement actions by allowing certain small businesses the right to advance notice and an opportunity to cure.

AB 1174 (Right to Work State):  This bill would have made California a right to work state, prohibiting employees from being required to join or contribute financially to unions.

SB 524 (Affirmative Defense; Reliance of DLSE Guidance):  This bill would have allowed employers to assert an affirmative defense in wage and hour cases if they relied on published DLSE policy or interpretive guidance (that a court later disagreed with).

AB 5 (Opportunity to Work):  Similar to a local San Jose Ordinance that recently was enacted, this bill would have required employers throughout the state to offer more hours to existing part-time employees before hiring new employees.

For more information on these bills and their progress, or to voice support or opposition to a bill, click here.

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For over 25 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 has a regular presence in California state and federal courts and has been lead defense counsel and appellate counsel for large and small California employers in litigation (and arbitration) ranging from individual discrimination and harassment claims to complex wage and hour representative and class actions. She also leads the firm’s appellate practice, having substantial experience and success handling appeals, writ petitions, and amicus briefs in both state and federal court on issues such as class certification (particularly in the wage and hour arena), manageability and due process concerns associated with class action trials, exempt/non-exempt misclassification issues, meal and rest break compliance, trade secret/unfair competition matters, and the scope of federal court jurisdiction under the Class Action Fairness Act.
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