17 | December 2017

New Employment Laws Coming In Soon!

October 30, 2013

New Employment Laws for 2014

It's new laws time! The governor has now signed or vetoed any employment related bills from the 2013 legislative session.

The 2013 session produced quite a few new laws that will affect California employers' day-to-day operations and policies in 2014. Some of the new laws make significant changes to existing state law, such as the raise to the state minimum wage, new protections for immigrants and expanded leaves of absence. Other new laws make small changes to different parts of existing law.

Unless specified, all new legislation goes into effect on January 1, 2014.

Minimum WageOne of the most publicized pieces of legislation this year is the minimum wage hike. AB 10 raises California's current minimum wage of $8 per hour by two, one-dollar increments:

To $9 per hour, effective July 1, 2014; and

To $10 per hour, effective January 1, 2016

This is the first increase to the minimum wage since January 1, 2008.

Employers should be mindful of the effect of the minimum wage increase on exempt/nonexempt classifications and ensure that employees meet the salary basis test for the particular exemption claimed.

Domestic Work EmployeesAB 241 enacts the Domestic Worker Bill of Rights which provides for specific overtime pay for certain in-home employees. A "domestic work employee who is a personal attendant" will be eligible for overtime at one and one-half times the employee's regular rate of pay if the employee works more than nine hours in any workday or more than 45 hours in the workweek.

Those with in-home help will need to carefully determine whether the new law applies to them because AB 241 contains many specific definitions and exclusions.

The U.S. Department of Labor also issued new rules on personal attendants. However, the new federal rules do not take effect until January 1, 2015. California's rules take effect on January 1, 2014.

Meal and Rest Periods - Expansion to Heat Illness Recovery Periods Current law prohibits employers from requiring employees to work during any meal or rest period and establishes a premium pay penalty on employers that violate the law. Premium pay is one additional hour of pay for each workday that the meal or rest period is not provided.

SB 435 expands that prohibition and penalty to "recovery" periods:

An employer cannot require an employee to work during a recovery period mandated by state law

An employer who does not provide an employee with a recovery period must pay the premium penalty

SB 435 defines a "recovery period" as a "cooldown period afforded an employee to prevent heat illness." Employers with outdoor places of employment are subject to Cal/OSHA's heat illness standard, which states that employees must be allowed and encouraged to take a cooldown rest in the shade for a period of no less than five minutes at a time when they feel the need to do so to protect themselves from overheating. The recovery period is on an "as-needed" basis.

Damages for Minimum Wage Violations AB 442 expands the penalty for minimum wage violations. Under existing law, any employer who pays less than minimum wage to its employees can be penalized with a citation that includes a civil penalty and restitution of wages to the employee.

AB 442 expands the citation by also including a requirement that the employer pay liquidated damages to the employee in amounts equal to the amounts improperly withheld.

Protections for Exercising Rights Under Labor CodeAB 263 amends various Labor Code provisions regarding retaliation. The new law expands employer liability for violating Labor Code sec. 98.6, which protects employees who have asserted their rights under the Labor Code; for example, complaining of wage theft.

The new law:

Specifically prohibits retaliation or adverse action against employees who assert their rights under the Labor Code (current law only specifically prohibits discharge and discrimination)

Expands protected conduct under Labor Code section 98.6 to specifically include a written or oral complaint by an employee that he/she is owed unpaid wages

Critically, AB 263 adds a civil penalty of up to $10,000 per employee per violation of Labor Code sec. 98.6.

AB 263 is also discussed in the Immigration Protections section below.

Labor Commissioner Lien on Property for Employee Complaints AB 1386 gives the Labor Commissioner the ability to file a lien on an employer's real property. Under current law, the Labor Commissioner is authorized to issue orders, decisions or awards related to employee complaints about employment-related issues regulated by the Labor Code.

AB 1386 would require that the amount due under a Labor Commissioner order, decision or award that has become final shall create a lien that the Labor Commissioner may record on the employer's real property.

Attorneys' Fees - Prevailing Party Wage Claims SB 462 makes it more difficult and rare for employers to recover attorneys' fees and costs when they win a wage and hour lawsuit filed by an employee. SB 462 states that employers who win wage-claim lawsuits filed by employees may recover attorneys' fees and costs only if a trial court finds that the employee filed the lawsuit in bad faith.

Employee Wage Withholdings - Criminal Penalty SB 390 creates a criminal penalty for an employer that fails to remit withholdings from an employee's wages that were made pursuant to state, local or federal law.

Garment Manufacturer RequirementsAB 1384 creates a civil penalty for a garment manufacturer's failure to display his/her name, address and registration number at the front entrance of the premises. The penalty for the initial citation is $100 per day for each calendar day that the person does not comply with the requirement. The fine increases to $200 per calendar day for subsequent violations.

Car Wash Industry AB 1387 increases the bond requirement for employers in the car wash industry from $15,000 to $150,000 but exempts an employer from the bond requirement if the employer has a collective bargaining agreement in place that meets specified criteria. The bond is used by the state to compensate employees in the car wash industry for employers' nonpayment of wages.

Farm Labor Contractors - Successor Liability SB 168 makes a successor farm labor contractor liable for wages or penalties owed by a predecessor farm labor contractor to a former employee of the predecessor. The successor farm labor contractor will be liable only if it meets certain specified criteria, such as using substantially the same facilities or workforce and offering substantially the same services as the predecessor. An affirmative defense is available to the successor.

Prevailing Wages A number of bills signed this year relate to prevailing wages. Employers who provide services or construction work for the government or public entities must pay the prevailing wage, which is usually significantly higher than the minimum wage.

The bills include AB 1336, SB 7, SB 54, SB 377 and SB 766. One notable bill (SB 54) expands payment of prevailing wages to privately financed refinery construction projects.

Discrimination and Retaliation Protections

Several new laws will expand employee protections for 2014.

Protection for Military and Veterans AB 556 adds "military and veteran status" to the list of categories protected from employment discrimination under the Fair Employment and Housing Act.

The law provides an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding a veteran's preference as permitted by law. Legislation from prior years required veteran preference on civil service employment lists.

Sexual Harassment Definition Clarified SB 292 amends the definition of harassment to clarify that sexually harassing conduct does not need to be motivated by sexual desire. The new law clarifies that hostile treatment can amount to unlawful sexual harassment regardless of whether the treatment was motivated by any sexual desire.

Whistleblower Protections Labor Code sec. 1102.5 provides whistleblower protections to encourage employees to notify an appropriate government or law enforcement agency when employees have reason to believe that their employer is violating a federal or state statute.

SB 496 expands whistleblower protections to:

Include reports alleging a violation of a local rule or regulation

Protect an employee who discloses, or may disclose, information regarding alleged violations "to a person with authority over the employee or another employee who has authority to investigate, discover or correct the violation"

Prohibit retaliation against an employee because the employer "believes the employee disclosed or may disclose information"

Immigrant Protections

Many new laws will affect immigrants in 2014. New protections will address retaliation against immigrant workers who complain about unfair wages or working conditions. Privileges such as drivers' licenses for undocumented immigrants were also extended.

Retaliation and unfair immigration practices AB 263 prohibits an employer from engaging in "unfair immigration-related practices" when an employee asserts protected rights under the Labor Code.

Under AB 263, employers cannot use immigration law to retaliate against employees who exercise their employee rights. For instance, an employer may not threaten to contact, or contact, immigration authorities because an employee complained that he/she was paid less than the minimum wage. Employers who engage in unfair immigration-related practices will face various penalties, including an employee's right to bring a civil action and potential suspension of certain business licenses.

License Revocation for Threatening to Report Immigration Status SB 666 permits the state to suspend or revoke an employer's business license where that employer reports, or threatens to report, the immigration status of any employee because the employee makes a complaint about employment issues. It also allows for disbarment of attorneys for similar conduct against witnesses or parties in a lawsuit.

The law covers reports, or threats to report, employees, former employees, prospective employees or family members, as defined, to immigration authorities.

Employers are not subject to the suspension or revocation of a business license for requiring a worker to verify eligibility for employment under the Form I-9.

Criminal Extortion for Threatening to Report Immigration Status AB 524 clarifies that a person may be guilty of criminal extortion if the person threatens to report the immigration status or suspected immigration status of an individual, or his/her relative or a member of his/her family.

Driver's License for Undocumented Immigrants AB 60 requires the California Department of Motor Vehicles (DMV) to issue a driver's license to an undocumented person who can prove identity and California residency and meet all other licensing requirements, such as the written and behind-the-wheel exams. The card will have a notation stating that it is not acceptable for federal purposes, such as verifying eligibility for employment. In other words, this card is not acceptable for Form I-9 verification.

AB 60 does not take effect until January 1, 2015, or on the date the DMV's director executes a specified declaration, whichever is sooner. The DMV must adopt regulations to implement the new law, including documents acceptable for the purposes of proving identity and California residency, as well as procedures for verifying authenticity of documents.

Under AB 60, this card will bear a mark noting "DP" instead of "DL" and will also bear this notation: "This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits."

For employers who hire commercial drivers, AB 60 states that its provisions do not authorize an individual to apply for, or be issued, a commercial driver's license without submitting his/her Social Security number with his/ her application.

Leaves and Benefits

Several new laws will make changes to leaves of absence in California for 2014.

Time Off for Crime Victims SB 288 adds new protections for crime victims to attend court proceedings involving the alleged perpetrator of the crime. Employers may not discriminate or retaliate against an employee who is a victim of specified serious crimes for taking time off from work to appear in any proceeding in which a right of the victim is at issue. Crimes include such as offenses as solicitation for murder and vehicular manslaughter while intoxicated.

SB 288 defines a "victim" as any person "who suffers direct or threatened physical, psychological, or financial harm as a result of the commission or attempted commission of a crime or a delinquent act," and a victim also includes the person's "spouse, parent, child, sibling or guardian."

Employees must comply with specific requirements for requesting the leave. Violations of the law will be enforced by the Labor Commissioner. Refusal to reinstate someone wrongfully fired under this law is a misdemeanor.

Time Off for Victims of Stalking and Accommodation for Domestic Violence, Sexual Assault and Stalking Victims SB 400 extends existing protections for victims of domestic violence or sexual assault to victims of stalking.

Current law protects victims of domestic violence or sexual assault and prohibits employers from taking any type of adverse employment action against a victim of these crimes if the victim takes time off to attend to issues arising as a result of the crime:

All employers must provide time off to these victims to appear at legal proceedings

Employers with 25 or more employees have to provide time off to deal with medical/psychological treatment, including safety planning

In addition to extending the protected time off to stalking victims, SB 400 makes it unlawful to discriminate or retaliate against an employee because of his/her status as a victim of domestic violence, sexual assault, or stalking if: (1) the victim provides notice to the employer of their status as a victim of one of these types of crimes; or (2) the employer has actual knowledge of the status.

SB 400 also adds a new reasonable accommodation requirement for victims of domestic violence, sexual assault or stalking. Reasonable accommodations under the statute may include safety measures, including transfer or reassignment, among others. The new law creates specific requirements and exceptions (including undue hardship) relating to the reasonable accommodation requests.

An employer that refuses to reinstate someone wrongfully fired under this law is guilty of a misdemeanor.

Time Off for Emergency Duty Under existing law, California employers with at least 50 employees must provide temporary leaves of absence of up to 14 days per calendar year for employees who are volunteer firefighters for the purpose of fire or law enforcement training.

The new law, AB 11, adds reserve peace officers and emergency rescue personnel to the list of employees eligible for this training time off. AB 11 also expands the law to cover time off for "emergency rescue training."

Paid Family Leave Benefits Under current law, employees may seek wage replacement benefits under the family temporary disability program (also referred to as paid family leave or PFL) for taking time off to care for certain seriously ill family members.

SB 770 expands paid family leave benefits for employees to include benefits for time taken off to care for a seriously ill grandparent, grandchild, sibling or parent-in-law.

PFL does not create the right to a leave of absence, but provides California workers with some financial compensation/wage replacement during a qualifying absence.

This legislation will not take effect until July 1, 2014.

San Francisco Family-Friendly Workplace Ordinance San Francisco passed a Family-Friendly Workplace Ordinance that will require employers with employees working in San Francisco to consider employee requests for "flexible or predictable working arrangements to assist with care giving responsibilities."

The ordinance applies to employers with 20 or more employees and covers employees working within the geographic boundaries of San Francisco, including part-time employees. An employer must consider the request if the employee has more than six months of service and works at least eight hours per week on a regular basis.

The ordinance also protects employees from retaliation for making a request and protects employees from adverse action based on "caregiver status."

There are specific guidelines relating to the manner of making and responding to requests. The ordinance requires a poster informing employees of their rights. The San Francisco Office of Labor Standards Enforcement (OLSE) will enforce the ordinance and develop the required notice.

Background Checks

AB 218 prohibits a state or local agency from asking an applicant to disclose information regarding a criminal conviction until after the agency determines the applicant meets minimum employment qualifications.

There are specified exceptions, such as where a criminal history background check is otherwise required by law for the position. This legislation will not go into effect until July 1, 2014.

Workers' Compensation

Several bills relating to workers' compensation were signed into law in 2013:

AB 1309 limits the ability of professional athletes who work for out-of-state sports teams to bring workers' compensation claims in California. A player employed by an out-of-state sports team who wants to bring claims for cumulative trauma (such as for arthritis or brain injuries due to multiple concussions) will have to prove that he/she worked a good part of his/her career for teams based in California or spent more than 20 percent of his/her professional time working in California

AB 607 relates to death benefits for dependent children

AB 1376 relates to language assistance and interpreters

SB 146 deals with medical treatment and billing and copies of prescriptions

SB 809 involves reporting of controlled substances

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