United States: California Legislative Update

Last Updated: May 29 2015
Article by Christopher E. Cobey

The end of the first week of June is the deadline for California bills to pass out of their house of origin. The following are significant bills affecting private-sector employers in the Golden State that have advanced to date:

  • AB 465 would, in essence, prohibit pre-dispute binding arbitration agreements as a condition of employment.  The bill would prohibit any person from requiring another person, as a condition of employment, to agree to the waiver of any legal right, penalty, forum, or procedure for any employment law violations. The measure would prohibit a person from threatening, retaliating against, or discriminating against another person based on a refusal to agree to such waiver, and would render such a waiver unconscionable, against public policy, and unenforceable. The bill would require that any waiver of a person's employment rights be knowing and voluntary and in writing, and expressly not made as a condition of employment. Under the measure, a person seeking to enforce a waiver would have to prove the waiver was knowing and voluntary. The bill would apply to any waiver agreement entered into on or after January 1, 2016, and would impose a penalty of up to $10,000 against the employer for each violation of the bill's provisions.  It would also award the penalty and reasonable attorney's fees to the prevailing claimant.  Employers  considering amending or extending such agreements this year should track this legislation and seek the advice of counsel on the content of their agreements.  
  • SB 358 would dramatically amend California's pay equity statute, originally enacted in 1939.  The bill would lower the standard of proof required for a plaintiff to prove a violation, expand the basis for such a claim, and narrow the available employer affirmative defenses to a pay equity claim.  The legislation would make explicit an employee's right to ask other employees about their compensation for the purpose of researching such a possible claim.  As this bill has both bipartisan—and labor and business—support, it is expected to pass and become law next year.
  • AB 359, according to the Assembly Floor report, is sponsored by the United Food and Commercial Workers Union Western States Council (UFCW) and would establish a worker retention requirement for specified grocery establishments. The UFCW indicates that this measure is modeled after a grocery worker retention ordinance enacted by the City of Los Angeles in 2005.  The work retention concept has been adopted in other cities for various categories of employees, including airport, hospitality, hotel, and marine workers. Upon a change in control of a grocery establishment, the bill would require an incumbent grocery employer to prepare a list of specified eligible grocery workers for a successor grocery employer, and would require the successor grocery employer to hire from this list during a 90-day transition period. The bill would require the successor grocery employer to retain eligible grocery workers for a 90-day period, prohibit the successor grocery employer from discharging those workers without cause during that period, and, upon the close of that period, require the successor grocery employer to consider offering continued employment to those workers.
  • AB 1017 would prohibit an employer from seeking salary history information from an applicant for employment and from releasing the salary history of any current or former employee without written authorization from the current or former employee.
  • AB 525 (franchise reform) would substantially alter the existing law on franchises, which dates back more than three decades. Among other changes, the bill would require the monetization of equity of a franchise on its sale or transfer, and make significant changes on the process of contract renewals and franchise terminations.
  • AB 622 would expand the definition of an unlawful employment practice to prohibit an employer or any other person or entity from using the E-Verify system to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds. The bill would provide for a civil penalty of up to $10,000 for an employer for each violation of these provisions.
  • AB 970 would authorize the Labor Commissioner to enforce violations of local overtime or minimum wage laws.
  • AB 987 would prohibit an employer or other entity covered by the FEHA from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted.
  • AB 1509: California Labor Code sections 98.6, 1102.5, and 6310 prohibit an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified. Existing law provides that an employee who made a bona fide complaint, and was consequently discharged or otherwise suffered an adverse action, is entitled to reinstatement and reimbursement for lost wages. Existing law makes it a misdemeanor for an employer to willfully refuse to reinstate or otherwise restore an employee who is determined by a specified procedure to be eligible for reinstatement. Existing law subjects a person who violates these provisions to a civil penalty of up to $10,000 per violation. This bill would extend the protections of these provisions to an employee who is a family member of a person who engaged in, or was perceived to engage in, the protected conduct or make a complaint protected by these provisions.

And, for a smaller cohort of California employees:

  • AB 202 would, for purposes of all of the provisions of state law that govern employment, including the Labor Code, the Unemployment Insurance Code, and the California Fair Employment and Housing Act, require a cheerleader who is utilized by a California-based professional sports team during its exhibitions, events, or games to be deemed an employee. The bill would also require the professional sports team to ensure that the cheerleader is classified and treated as an employee.

The following are significant private-sector employment bills pending final passage in their house of origin:

  • AB 11 (paid sick leave for in-home supportive services workers)
  • AB 20 (California Agricultural Act: undocumented workers)
  • AB 67 (Double Pay on the Holiday Act of 2015)
  • AB 219 (public works: concrete deliveries)
  • AB 304 (paid sick leave: accrual and limitations)
  • AB 357 (Fair Scheduling Act of 2015)
  • AB 561 (agricultural labor relations)
  • AB 621 (drayage truck operators)
  • AB 676 (employment: discrimination: status as unemployed)
  • AB 883 (employment: public employee status)
  • AB 1065 (employment: unfair practices: immigrants)
  • AB 1470 (classification of positions as overtime-exempt)
  • SB 3 (adjustment to minimum wage)
  • SB 406 (expands California Family Rights Act's definition of "child")
  • SB579 (expands basis for protected leave for child care)

Finally, among the items submitted for initial approval and circulation as a potential 2016 ballot initiative is a proposed increase in the minimum wage (15-0026).

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Christopher E. Cobey
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