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More Troublesome California Laws on the Horizon for California Employers
Mar. 14 2018

More Troublesome California Laws on the Horizon for California Employers

Topics: New Laws & Legislation

Curious what the California Legislature is cooking up for employers in the Golden State this year?  I can tell you it isn’t pretty.  Here’s a list of notable bills (almost all of which are unfavorable for employers) that have been introduced and are pending:

AB 2841 (Paid Sick Leave Expansion):  This bill would expand the current paid sick leave law by requiring employers to provide more paid sick leave to employees.  Under current law, employers must allow employees to accrue at least one hour of paid sick leave for every 30 hours worked (but may limit an employee’s use of sick leave to 3 days/24 hours per year) and may impose a carryover accrual cap of 6 days/48 hours.  Alternatively, an employer may provide at least 3 days/24 hours of paid sick leave “up front” to employees (rather than allowing them to accrue it over time) allow employees to take up to 5 days (40 hours) of paid sick leave per year (up from the current 3 days/24 hours) and to accrue up to 10 days (80 hours) of paid sick leave.  Under this bill, an employer who front loads paid sick leave would have to provide at least 5 days/40 hours up front.  An employer who allows employees to accrue paid sick leave but wishes to impose a cap on carryover and accrual of unused sick leave could not use a cap that is less than 10 days/80 hours.

AB 2069 (Employment Protection for Medical Marijuana Users):  This bill would amend the Fair Employment and Housing Act to make it an unlawful employment practice for an employer to take adverse action against an applicant or employee because of a positive drug test for marijuana (by a medical marijuana cold holder) or because of one’s status as a medical marijuana card holder.  The bill makes clear that an employer may still discipline an employee for being under the influence while working or on the employer’s property, but would change the law in California with respect to whether an employer must accommodate medical marijuana use.  The California Supreme Court has held that the answer is no, and that is the current law in California. This bill would undo the California Supreme Court precedent and give employment protections to medical marijuana users.  The law would provide an exception for employers who would lose a license-related or monetary benefit under federal law if they hired or did not fire an individual who tested positive for marijuana.

SB 937 (Lactation Accommodation):  California already has a law requiring employers to accommodate the break needs of lactating employees.  At least one city (San Francisco) has enacted its own more detailed local ordinance on the subject.  This statewide bill would impose more detailed requirements on employers similar to those under the San Francisco ordinance and guidance on the subject under federal law.  More specifically, the bill would require employers to provide a lactating employee with a lactation room (other than the bathroom) that (1) is close to the employee’s work area, (2) is free from intrusion, (3) is shielded from view, (4) is free of toxic or hazardous chemicals, (5) contains a surface on which to place a breast pump and similar items, (6) has a place to sit, and (7) has access to electricity.  The employer would also have to ensure that the employee has access to a sink and refrigerator in reasonable proximity to the workspace.  Employers would be required to develop a written lactation accommodation policy and to respond to lactation accommodation requests within 5 days.  Employers with less than 5 employees who believe they cannot comply with the law could petition the Labor Commissioner for an exemption based on undue hardship (good luck with that).  The bill of course provides for penalties for non-compliance, and avenues of recourse through the Labor Commissioner and/or a private right of action with recovery of attorneys’ fees to a successful plaintiff.  Interestingly, the bill goes even farther, in proposing to require the California Building Standards Commission to adopt new rules that would require the construction of a lactation accommodation space in new or remodeled buildings that are at least 15,000 square feet.  The bill also sets forth specific parameters for these newly constructed lactation rooms.

SB 826 (Female Representation on Corporate Boards of Directors):  This bill would require publicly held corporations with their principal place of business in California to have at least one female on their board of directors by December 31, 2019.  By 2021, the number would increase to 2 where the board has five members and to 3 where the board has 6 members.  Similarly, SB 984 would require that state boards and commissions be comprised of at least 50% women.

SB 1284 (Annual Pay Data Reporting):  Similar to an unsuccessful bill last year, this bill would require employers that are incorporated under the laws of the State of California with 100 or more employees to annually report to the Department of Industrial Relations certain information on earnings by race, gender, and ethnicity, beginning September 30, 2019 and annually thereafter.  This information would be shared with the Secretary of State, Department of Fair Employment and Housing, and another entity referred to as the Commission on the Status of Women and Girls.

AB 2946 (Expanded Limitations Period for DLSE Discrimination Complaints):  This bill would allow employees up to three years (instead of six months) to file a charge of discrimination with the DLSE.  The bill would also amend Labor Code section 1102.5 to allow for recovery of attorneys’ fees by a prevailing plaintiff (but not by a prevailing employer) in a whistleblower retaliation case.

AB 1870 (Expanded Limitations Period for DFEH Charges):  This bill would allow employees up to three years (instead of one year) to file administrative charges of discrimination/harassment/retaliation with the Department of Fair Employment and Housing.  Thus, the bill effectively would extend the statute of limitations for an employee to file a lawsuit against the employer to approximately 4 years from the alleged unlawful employment action.  This would impact employer records retention policies and expose employers to threats of stale legal claims that are made more difficult to defend based on the passage of time, fading memories, employee (witness) turnover, etc.

AB 1867 (Records Retention – Sex Harassment Complaints):  This bill would require employers with 50 or more employees to retain records of sexual harassment complaints for 10 years.

SB 1038 (Personal Liability for Retaliation):  This bill would provide for individual liability for retaliation under the Fair Employment and Housing Act.  Under current law, an individual may be held personally liable for harassment, but not for discrimination or retaliation. 

SB 1300 (Failure to Prevent Discrimination/Harassment):  This bill would change existing law by providing that where an employee alleges a claim for failure to prevent discrimination/harassment, the employee need not prove the underlying discrimination or harassment occurred in order to state a valid claim.  Separately, the bill would also prohibit a release of FEHA claims as a condition of employment or continued employment or in exchange for a raise or bonus.  The bill would also prohibit an employer from requiring an employee to sign a non-disparagement agreement or other document that prevents the employee from discussing unlawful acts, including sexual harassment or any other unlawful or “potentially unlawful” conduct, in the workplace.  Finally, the bill would expand California’s sexual harassment prevention training requirements to apply to all employers regardless of size (currently the training requirement only applies to employers with 50 or more employees) and would require that all employees (not just supervisors, as under current law) be trained within 6 months of hire and every two years thereafter.  It would also expand the scope of the required training to include bystander intervention training.

SB 1343 (Sexual Harassment Prevention Training):  This bill would require employers with 5 or more employees to provide sexual harassment prevention training to all employees by 2020 and once every two years thereafter.  The DFEH would be required to make available a two-hour training video for employers to use.

SB 820 (Confidentiality Provisions in Settlement Agreements):  These bills would prohibit provisions in settlement agreements that prevent disclosure of factual information relating to claims of sexual harassment/assault/abuse and gender discrimination.

AB 2366 (Leave for Victims of Sexual Harassment):  This bill would prohibit employers from taking adverse action against employees who are victims of sexual harassment (or whose immediate family member is a victim of sexual harassment) for taking needed time off work to attend court proceedings or to seek treatment (or to provide assistance or support to an immediate family member in these circumstances).

AB 2613 (Increased Penalties for Payday Timing Violations):  Provisions of the California Labor Code require employers to pay their employees at certain intervals, generally (with some exceptions) twice per month on designated paydays.  Because there aren’t already enough avenues for employees to collect penalties against their employers for technical Labor Code violations, this bill would add even more penalties for a violation of the payday timing requirements.  Specifically, the bill would provide for “statutory” penalties of $100 per employee per day, up to seven days, for an initial late payment.  For subsequent or willful violations, the penalty would be $200 per employee per day, up to seven days.  The penalties would be recoverable by the Labor Commissioner or by employees in a civil action, and would be “in addition to” any other penalties the employees may be entitled to recover for the same violation under the Labor Code.

SB 1252 (Copies of Payroll Records):  This bill would provide that employees are entitled to be provided with copies of their payroll records (not just the right to inspect or copy them) upon request.

AB 2587 (Paid Family Leave/Use of Vacation):  Current law allows employers to require an employee to use up to two weeks of vacation prior to, and as a condition of, receipt of paid family leave benefits through the state.  This bill would disallow this practice.

AB 1885 (Undocumented Agricultural and Service Workers):  This bill would require the State of California to work with the United States government to try to create a guest worker program in California whereby undocumented agricultural or service industry employees would be granted a permit to live and work in California.

AB 2496 (Janitorial Workers/Employee Presumption):  This bill would create a rebuttable presumption that a worker is an employee rather than an independent contractor where the worker performs work for which a property service registration is required by law.

AB 1938 (Inquiries re Familial Status):  This bill is vague in current form, but would generally employers from inquiring about an applicant’s or employee’s familial status (having custody of a child under 18 years of age).

AB 3109 (Confidentiality and No Re-employment Provisions):  This bill would prohibit contract provisions (including settlement agreement terms) that limit a party’s right to free speech in connection with a public issue or that limit a party’s right to seek employment or re-employment in a given occupation or profession.

We will be tracking these bills and will keep you posted as to significant developments.  For more information on these bills, including tracking their progress, click here.  

About CDF

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 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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