California Legislative Update: September 2014

In September 2014, California Governor Jerry Brown signed into law a number of bills that will impact the employer community. A brief summary of these new laws, along with links to the bills, can be found below.

Healthy Workplaces, Healthy Families Act of 2014—Paid Sick Leave (AB 1522)

On September 10, 2014, Governor Brown signed a bill that provides workers with three paid sick days per year. Beginning on July 1, 2015, California employers must provide employees with one hour of paid sick leave for every 30 hours worked. Additional information on the new law can be found in our blog post, “BREAKING NEWS: California Legislature Passes Mandatory Paid Sick Leave Bill.” Ogletree Deakins will also host a webinar on October 9, 2014, addressing the new law.

Practical Tip: An employer’s existing paid time off (PTO) policy will comply with the new law if it is equal to or more generous than the law. For employers without a PTO policy, it will become important to formulate one because the law permits employers to cap use and accrual, among other customizable options.

Employment Discrimination or Harassment: Education and Training: Abusive Conduct (AB 2053)

AB 2053 amends section 12950.1 of the Government Code to require additional training for supervisors. Currently, California employers with 50 or more employees are required to provide harassment prevention training to supervisors. Under the new law, the training must also include training and education on the prevention of “abusive conduct” or bullying. Abusive conduct may include “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” AB 2053 provides that a single act does not constitute abusive conduct, unless it is especially severe and egregious.

Practical Tip: This new training topic can be incorporated into the existing two-hour training obligation. Along with the training, employers may choose to formulate policies discouraging such misconduct, and describing how a victim may seek assistance.

Harassment: Unpaid Interns (AB 1443)

AB 1443 extends the protections of California’s Fair Employment and Housing Act to unpaid interns. The law prohibits employers from subjecting unpaid interns to discrimination and/or harassment based on their race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. Under AB 1443, an employer may also be liable for harassment of an unpaid intern by a nonemployee if the employer knew or should have known of the conduct and failed to take immediate and appropriate corrective action.

Practical Tip: This new anti-harassment category should be added to company policies and incorporated into harassment prevention training. Interns should be advised of their rights and instructed to complain about any misconduct to a designated company representative.

Contracts: Unlawful Contracts (AB 2365)

AB 2365 is intended to protect consumers’ rights to leave negative reviews of goods and services, such as online reviews. The bill prohibits contracts that require that a consumer waive his or her right to make statements about the goods or services that he or she received. It also prohibits businesses from penalizing a customer for making such comments. The law imposes civil penalties of $2,500 for the first violation and $5,000 for each subsequent violation, as well as an additional penalty of $10,000 if the violation was willful, intentional, or reckless. The bill does not prohibit a business that hosts its own consumer reviews or comments from removing a statement that is otherwise lawful to remove.

Child Performer Services Permit (AB 1680)

AB 1680 requires that any person with a valid Child Performer Services Permit include the permit number on advertising in print or electronic media, including on the Internet or any other medium of advertising.

Civil Rights (AB 2634)

AB 2634 expands the law to allow any individual whose civil rights have been violated to institute and prosecute in his or her own name and on his or her own behalf an action for injunctive relief to eliminate the offending pattern or practice of conduct that is in violation of certain civil rights laws.

Workers’ Compensation: Expedited Hearings (AB 1746)

AB 1746 provides for expedited hearings for injured workers of employers that are illegally uninsured for workers’ compensation claims, and the disputed issues are employment or injury. The bill is intended to quickly resolve the issues that determine access to benefits and medical care.

Public Works: Apprenticeship Program (AB 2744)

Current law addresses the violation of the requirements by contractors and subcontractors relating to public works contracts. AB 2744 amends section 1777.1 of the California Labor Code to extend the penalties for those violations to provisions related to the employment of apprentices.

Public Works: Prevailing Wages: Contractor’s Costs (AB 1939)

Current law requires that contractors and subcontractors performing work on publicly funded construction and maintenance projects to pay their workers minimum prevailing wage rates and to comply with other apprenticeship and recordkeeping obligations. Contractors and subcontractors are liable for violations of prevailing wage laws. AB 1939 adds section 1784 to the California Labor Code to allow contractors to bring an action to recover from the hiring party that the contractor directly contracts with, any increased costs such as the difference between the wages actually paid to an employee and the prevailing wage for the project, among other costs.

Employees: Emergency Rescue Personnel (AB 2536)

Current law prohibits employers from discharging and discriminating against an employee for taking time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel. AB 2536 expands the definition of emergency rescue personnel to include an officer, employee, or member of a disaster medical response organization sponsored or requested by the state. The bill also requires an employee who is a health care provider to notify his or her employer at the time the employee becomes designated as emergency rescue personnel and when the employee is notified that he or she will be deployed as a result of that designation.

Practical Tip: Written policies should be updated to include this expansion of the emergency rescue personnel leave law.

Driver’s Licenses: Nondiscrimination (AB 1660)

AB 1660 amends the Fair Housing and Employment Act (FEHA) and makes it a violation for an employer or other entity to discriminate against individuals with driver’s licenses issued to undocumented workers. This law follows AB 60, enacted in 2013, which authorized the California Department of Motor Vehicles to issue driver’s licenses to undocumented immigrants. The amended FEHA states that discrimination against those possessing this type of license is a form of “national origin” discrimination. The bill prohibits an employer from requiring a person to present a driver’s license, unless required or permitted by law. AB 1660 also obligates an employer to maintain the privacy of certain information related to such driver’s licenses.

Practical Tip: The new law specifies that it does not alter an employer’s obligation to comply with federal immigration law. This would include, for example, following I-9 procedures when hiring new workers. Further, employers may require employees to possess a driver’s license, if required for work.

Labor Contracting: Client Liability (AB 1897)

AB 1897 extends liability for wage, Cal/OSHA, and workers’ compensation violations to companies using contracted labor from staffing agencies and other labor contractors. The bill aims to address the increasing use of long-term temporary workers in place of regular employees by creating joint liability for the labor contractor and the company using temporary labor. (For more on AB 1897, see our blog post, “Governor Brown Signs Bill Making Companies Liable for Employment Violations of Independent Labor Contractor Companies.”)

Practical Tip: When working with any vendor, including staffing companies, it is prudent to review the vendor’s legal compliance measures, service contract terms, and secure adequate insurance, among other measures. This new law could increase the risk of litigation for companies that fail to take adequate precautions.

Foreign Labor Contractors: Registration (SB 477)

SB 477 requires foreign labor contractors, who recruit foreign workers to California, to register with the Labor Commissioner. The law also penalizes such contractors for intimidation, discrimination, and other violations to prevent the exploitation of foreign workers. The law becomes effective July 1, 2016.

Practical Tip: Companies working with foreign labor contractors should confirm that the contractor is registered with the Labor Commissioner, and take other steps to confirm that the contractor is complying with state and federal labor laws.

Farm Labor Contractors (SB 1087)

SB 1087 prohibits the state from issuing a farm labor contractor license to anyone who has been convicted of sexual harassment of an employee within the last three years or who has hired, as a supervisor, an individual who has been convicted of that crime in the last three years.

Practical Tip: Agricultural businesses should continue to work with reputable, licensed farm labor contractors.

Unemployment Insurance Benefits: Determination: Appeals (SB 1314)

Effective July 1, 2015, SB 1314 extends the deadline for a reconsideration or appeal of an unemployment insurance benefit ruling, determination, computation, or administrative law judge decision from 20 days to 30 days.

Practical Tip: This amendment adds 10 days to the deadline to request a hearing, as well as an additional 10 days to file an appeal following the administrative law judge’s ruling. The 20-day deadline for filing unemployment benefits appeals has always been tight for busy HR departments. This law provides some relief, allowing companies time to investigate facts supporting possible disqualification, seek legal counsel, and evaluate the pros and cons of filing an appeal.

Occupational Safety and Health: Violations (AB 1634)

AB 1634 requires that an employer that seeks to receive an abatement credit submit proof, under penalty of perjury, that abatement has occurred. The bill also requires employers to abate serious workplace hazards even if the employer seeks reconsideration.

Practical Tip: Certainly companies will want to immediately eliminate known workplace hazards. In some cases, employers contesting the citation will challenge the existence and need to abate alleged workplace hazards. This amendment complicates an employer’s response. Employers should continue the wise practice of seeking immediate assistance from safety consultants and legal counsel after any workplace accident.

The governor vetoed several bills, including SB 2271 which was intended to prohibit discrimination against unemployed job applicants.