United States: 2017 California Employment Law Updates

In 2017, the California Legislature enacted numerous employment-related laws. California employers should take note of these new laws to ensure that their policies and procedures are in compliance. Below is a summary of the important new laws affecting employers and employment litigation.

All laws are effective January 1, 2018, unless otherwise noted. Our office is available to assist employers with the implementation of these new laws.

I. WAGE & HOUR

Agricultural Workers: Wages, Hours, and Working Conditions

AB 1066 removes the exemption for agricultural employees regarding hours, meal breaks, and other working conditions, including specified wage requirements, and creates a schedule that would phase in overtime requirements for agricultural workers over the course of 4 years, from 2019 to 2022. Beginning January 1, 2022, the legislation requires any work performed by a person employed in an agricultural occupation in excess of 12 hours in one day to be compensated at the rate of no less than twice the employee's regular rate of pay. Employers who employ 25 or fewer employees are provided an additional 3 years to comply with the phasing in of these overtime requirements.

Labor-Related Liabilities: Original Contractor

AB 1701 amends Labor Code section 218.7 to make general contractors liable for the wage claims of employees of subcontractors who did work for the general contractor's original contract. The bill also allows third parties owed fringe benefits to bring a civil action to enforce the liability of a general contractor. General contractors would be allowed to seek payroll and contract information from subcontractors in order to apprise themselves of their potential liability to a subcontractor's employees and third parties.

Overtime Compensation: Private Elementary or Secondary Academic Institutions: Teachers

AB 2230 amends Labor Code section 515.8 to lower the wage threshold for overtime compensation of private school teachers. Beginning July 1, 2017, the bill would prescribe a revised earnings standard for exemption from overtime provisions that would require a teacher employed by a private elementary or secondary institution to earn no less than the lowest salary offered by any school district or the equivalent of no less than 70% of the lowest schedule salary offered by the school district or county in which the private elementary or secondary institution is located.

Minimum Wage Violations: Challenges

AB 2899 amends Labor Code section 1197.1 to increase costs for employers contesting minimum wage violations. The bill would require a person seeking a writ of mandate contesting the Labor Commissioner's ruling regarding a minimum wage violation to post a bond with the Labor Commissioner in an amount equal to the unpaid wages assessed under the citation, excluding penalties. The bill would require that the bond be issued in favor of the unpaid employees and ensure that the person seeking the writ makes prescribed payments pursuant to the proceedings. The bill would provide that the proceeds of the bond, sufficient to cover the amount owed, would be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings.

Wages: Barbering and Cosmetology Act: Licensees

SB 490 amends the Labor Code to require certain payment schedules and wages for employees covered by the Barbering and Cosmetology Act. The bill requires commission wages paid to any employee who is licensed under the Barbering and Cosmetology Act to be due and payable at least twice during each calendar month on previously established regular paydays and authorizes the employee and employer to agree to a commission in addition to the base hourly rate. The bill would provide that commission wages are wages paid as a percentage or a flat sum portion of the sums paid to the employee by the client receiving the service, and for selling goods, provided that the employee is paid a regular base hourly rate of at least 2 times the state minimum wage rate in addition to commissions paid. The bill also specifies that the employee may be compensated for rest and recovery periods at a rate of pay not less than the employee's regular base hourly rate.

II. EMPLOYMENT DISCRIMINATION, HARASSMENT, RETALIATION

Employers: Wage Discrimination

AB 46 amends section 1197.5 of the Labor Code to define "employer" to include both public and private employers, as that term is applied to wage discrimination based on sex. Accordingly, both private and public employers are prohibited from paying any of its employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work. The remaining distinction between public and private employers is that public employers are not subject to a misdemeanor provision, which provides that employers in violation of this section are guilty of a misdemeanor.

Employers: Salary Information

AB 168 adds Section 432.3 to the Labor Code to prohibit employers from relying on the salary history information of an application for employment as a factor in determining whether to offer an applicant employment or what salary to offer an employee. It further prohibits employers from seeking salary history information about an applicant for employment and requires employers, upon reasonable request, to provide the pay scale for a position to an applicant. Applicants are not prohibited from voluntarily disclosing salary history information nor is an employer prohibited from considering or relying on that voluntarily disclosed salary history information in determining the applicant's salary.

Employment Regulation: Immigration Worksite Enforcement Actions

AB 450 adds sections 7285.1 - 7285.3 to the Government Code and sections 90.2 and 1019.2 to the Labor Code relating to employment regulation. It imposes various requirements on public and private employers with regard to federal immigration agency immigration worksite enforcement actions. It prohibits an employer from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant. It also prohibits employers from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer's employee records without a subpoena or court order. Penalties for failure to comply with the prohibitions range from $2,000 up to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.

The act also requires employers to provide current employees notice of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving the federal notice of inspection. Employers are further required, upon reasonable request, to provide an affected employee a copy of the notice of inspection of I-9 Employment Eligibility Verification Forms. Finally, employers are prohibited from reverifying the employment eligibility of a current employee at a time or in a manner not required by federal law, subject to a $10,000 fine for violation of this provision.

Employment Discrimination: Conviction History

AB 1008 adds section 12952 to the Government Code and repeals Section 432.9 of the Labor Code. This legislation repeals the prohibition on a state or local agency from asking an applicant for employment to disclose information regarding a criminal conviction. Instead, it provides that it is an unlawful employment practice under the Fair Employment and Housing Act (FEHA) for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant's conviction history, to inquire into, or consider the conviction history of an applicant until that applicant has received a conditional offer, and when conducting a conviction history background check, to consider, distribute, or disseminate information related to specified prior arrests, diversions, and convictions.

In addition, this provision also requires an employer who intends to deny an applicant a position of employment solely or in part because of the applicant's conviction history to make an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific duties of the job and to consider certain topics when making that assessment. Those employers who make the preliminary decision to deny employment based on that individualized assessment are required to provide the applicant written notification of the decision. The applicant has 5 business days to respond to that notification before the employer may make a final decision. Employers who make the final decision to deny employment are required to notify the applicant in writing of specified topics. Certain positions of employment are exempt from this provision.

Prohibited Discrimination Against Service Members

AB 1710 conforms Section 394 of California's Military and Veterans Code to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA). The bill expands protections against discrimination for military service members to include the terms, conditions, and privileges of employment. The bill's primary aim is to prevent hostile work environments for members of the military, whether state or federal.

Employment Protections: Victims of Domestic Violence, Sexual Assault, or Stalking

AB 2337 amends Labor Code section 230.1 to require employers to provide employee-victims of domestic violence, sexual assault or stalking with a written description of their rights. Specifically, the bill would require employers to inform each employee of his or her rights established under existing laws by providing specific information in writing to new employees upon hire and to other employees upon request. The bill also requires the Labor Commissioner to develop a form an employer may elect to use to comply with the bill's provisions and to post it on the Commissioner's website by July 1, 2017.

Farm Labor Contractors: Sexual Harassment Prevention

SB 295 amends the Labor Code to expand the responsibilities of farm labor contractors related to sexual harassment training. Existing law requires applicants for farm labor contractor licenses to attest that certain employees have received prescribed sexual harassment training and to keep certain records in connection with that training. The bill would additionally require that training for each agricultural employee be in the language understood by that employee. The bill would require a licensee, as part of his or her application for license renewal, to provide the Labor Commissioner with a complete list of all materials or resources utilized to provide sexual harassment prevention training to the licensee's agricultural employees in the calendar year prior to the month the renewal application is submitted. The bill would also require a licensee, as part of that application for license renewal, to provide to the Commissioner with the total number of agricultural employees trained in sexual harassment prevention in the calendar year prior to the month the renewal application is submitted.

The bill would make it a violation of existing laws relating to farm labor contractors to fail to comply with specific existing provisions relating to the training requirements or the bill's requirement to provide the training in the language understood by the employee. The Commissioner would be authorized to issue citations and assess civil penalties of $100 for each violation.

Retaliation Actions: Complaints: Administrative Review

SB 306 amends the Labor Code to grant significantly expanded investigatory powers to the Labor Commissioner in regard to suspected retaliation or discrimination. Existing law requires a complaint of discrimination or retaliation submitted to the Commissioner to be investigated by the Commissioner's staff. Importantly, the bill expands the investigatory power of the Commissioner by allowing investigations to commence without a complaint when retaliation or discrimination is suspected during the course of a wage claim or other investigation. The bill would also authorize the Commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for injunctive relief. The bill would require a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the Commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred. Temporary injunctive relief granted under the bill's provisions would not prohibit an employer from disciplining or terminating an employee for conduct that is unrelated to the claim of the retaliation.

The bill also authorizes the Commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill establishes review procedures including a hearing and writ of mandate. The bill would subject an employer who willfully refuses to comply with a final order pursuant to the bill to civil penalties payable to the affected employee.

The bill also expands employee reinstatement rights by authorizing an employee who is bringing a civil action under Labor Code section 1102.5 to also seek injunctive relief from the court. The bill provides for notice to the restrained party and establishes criteria for the court to evaluate in granting or denying the application for injunction: 1) In addition to any harm resulting directly from the violation of Section 1102.5, 2) the court shall consider the chilling effect on other employees asserting their rights under that section. An injunction will issue if reasonable cause exists to believe a violation has occurred. The bill would provide that injunctive relief granted under these provisions is not stayed pending appeal.

Employment: Gender Identity, Gender Expression, and Sexual Orientation

SB 396 amends the Government Code and Unemployment Insurance Code to expand sexual harassment training requirements for employers covered by the Fair Employment and Housing Act (FEHA). Existing law mandates sexual harassment training by provided to certain employees of employers with greater than 50 employees. The bill would require employers to include in their training materials information on harassment related to gender identity, gender expression, and sexual orientation. In addition to currently required posters, the bill would require employers to post a poster developed by the Department of Fair Employment and Housing (DFEH) regarding transgender rights.

The California Workforce Innovation and Opportunity Act makes programs and services available to individuals with employment barriers. The bill would expand the definition of an "individual with employment barriers" to include transgender and gender nonconforming individuals. The bill also would authorize the appointments to the board representing the state workforce to include representatives of community-based organizations that serve transgender and gender nonconforming individuals.

III. OSHA HEALTH AND SAFETY

Apprenticeship: Fire Protection: Firefighter Preapprenticeship Program

AB 579 adds section 13159.15 to the Health and Safety Code, and takes effect immediately as an urgency statute. This section requires the Division of Apprenticeship Standards, in collaboration with the California Firefighter Joint Apprenticeship Committee (CAL-JAC) to develop a statewide firefighter preapprenticeship program designed to recruit candidates from underrepresented groups. The preapprenticeship program must meet specified objectives, and requires CAL-JAC to provide pilot classes and program models for the program.

Employment Safety: Injury and Illness Prevention Program

AB 978 amends sections 6319.3 and 6401.7 of the Labor Code to require employers who receive written requests for a paper or electronic copy of the written injury prevention program from a current employee to comply with the request no later than 10 business days from the date the employer receives the request. Employers are required to provide a copy of the written injury prevention program free of charge and authorized to take reasonable steps to verify the identity of a current employee.

Health Facilities: Whistleblower Protections

AB 1102 amends section 1278.5 of the Health and Safety Code to increase the maximum fine for a misdemeanor violation of the provisions within that section from $20,000 to $75,000.

Alcoholic Beverage Control: Responsible Beverage Service Training Program Act of 2017

AB 1221 establishes the Responsible Beverage Service (RBS) Training Program Act of 2018. It requires the Department of Alcoholic Beverage Control to develop, implement, and administer a curriculum for an RBS training program by January 1, 2020. Beginning July 1, 2020, alcohol servers are required to successfully complete an RBS training course offered or authorized by the department.

IV. LEAVE OF ABSENCE AND SICK LEAVE

Unlawful Employment Practice: Parental Leave

SB 63 expands baby bonding leave under the California Family Rights Act (CFRA) to require employers with locations that have between 20 and 49 employees to provide eligible employees up to 12 weeks of unpaid leave to bond with a new child within one year of the child's birth, adoption, or foster care placement. Employees are eligible if they have more than 12 months of service with the employer, at least 1,250 hours of service with the employer during the previous 12-month period, and if they work at a worksite in which the employer employs at least 20 employees within 75 miles. Employers with worksites that have 50 or more employees within 75 miles are covered by the CFRA and its baby-bonding requirements and are not covered by the New Parent Leave Act.

State Public Employees: Sick Leave: Veterans with Service-Related Disabilities

SB 728 amends the Government Code to expand military-related sick leave benefits to members of the National Guard and military reserve force. Under existing law, the California Wounded Warriors Transitional Leave Act grants a state officer or employee who is a military veteran hired on or after January 1, 2016, with a military service-connected disability rated at 30% or more by the United States Department of Veterans Affairs an additional credit for sick leave with pay of up to 96 hours for the purpose of undergoing medical treatment for his or her military service-related disability. Existing law requires that the sick leave be credited to a qualifying officer or employee on the first day of employment and remain available for use for the following 12 months of employment. The bill extends the above provisions to cover members of the National Guard and military reserve force who sustain a service-connected injury as detailed above. For reservists and members of the National Guard, the leave accrues on the first day that the qualifying employee begins or returns to employment after active duty, whichever is later, and remain available for use for the following 12 months of employment.

Public School Employees: Former or Current Members of the Armed Forces of the United States or California National Guard: Leave of Absence for Illness or Injury

SB 731 amends the Education Code to expand military-related sick leave for teachers to include former active duty members of the Armed Forces and current or former members of the California National Guard. Under existing law, a certificated employee hired on or after January 1, 2017, who is a military veteran with a military service-connected disability rated at 30% or more by the United States Department of Veterans Affairs is entitled to a leave of absence for illness or injury with pay of up to 10 days for the purpose of undergoing medical treatment for his or her military service-connected disability, as specified. The bill would expand these requirements to include a certificated employee who is a former active duty member of the Armed Forces of the United States or a former or current member of the California National Guard or a federal reserve component with a service-connected disability rated at 30% or more by the United States Department of Veterans Affairs that was incurred during the active duty recently completed. The bill would require credit for leave of absence to be credited to a qualifying certificated employee on the effective date of the employee's disability rating decision from the United States Department of Veterans Affairs or on the first day the qualifying certificated employee begins or returns to employment after active duty, whichever is later.

V. LICENSURE

Teacher Credentialing: Spouses of Active Duty Members of the Armed Forces: Expedited Application Process

AB 226 adds section 44343.5 to the Education Code, thereby requiring the Commission on Teacher Credentialing to grant or deny a completed application for a credential within 7 days of the date that the Commission received the application if the applicant is married to, or in a domestic partnership/legal union with, an active duty member of the Armed Forces who is assigned to a duty station in California under official active duty military orders and holds a valid teaching credential in another state, district, or territory of the United States.

Teacher Credentialing: Temporary Certificates

AB 1918 amends Education Code section 44332 to change how county and city boards of education issue temporary certificates to certified employees whose credentials are being processed by the Commission on Teacher Credentialing. Significantly, the bill eliminates the existing requirement that boards run a criminal background check before issuing temporary certificates and substitutes a requirement to obtain a certificate of clearance from the Commission before issuance. The bill also prohibits school districts from using their discretion to register valid certifications or other documents authorizing the holder to serve in a position requiring certification until the district has received a certificate of clearance from the Commission. The bill applies the same requirements for nonpublic, nonsectarian schools.

In addition, the bill requires the Commission to honor requests for expediting credentialing processing on the same basis whether the requests come from a nonpublic, nonsectarian school or any other employing agency. The bill also requires the State Department of Education to recognize all teacher permits, credentials, and certificates issued by the Commission or a county board of education or city board of education as authorized. This bill's provisions are inoperative beginning July 1, 2024, and are repealed on January 1, 2025.

Barbering and Cosmetology: Labor Law Education Requirements

AB 2025 amends Business and Professions Code section 7312 to change requirements for licensure of cosmetologists, barbers, estheticians, manicurists, electrologists, and apprentices. The bill would require that all written materials provided to licensees and applicants be available in English, Korean, Spanish, and Vietnamese. The bill also expands the mandate of the Safety Advisory Committee to include providing information on basic labor laws to licensees. New licensees and those applying for a license renewal would be required to sign an acknowledgement that they understand their rights under basic labor laws as outlined in provided informational materials. The bill would also require establishments applying for a license or renewal to acknowledge they understand basic labor laws as provided in information materials. The bill also requires license application materials to include an optional language preference indication. The bill also mandates that the required health and safety course taught by licensed schools include information on basic labor laws. The bill's provision became effective July 1, 2017.

Online Child Care Job Posting Services: Background Check Service Providers: Enforcement

AB 2036 adds Chapter 2.3 commencing with section 18890 to Division 8 of the Business and Professions Code. The bill would require an online child care job posting service providing online information about nonlicensed potential child care providers to include a statement explaining the Trustline system. The bill would also require an online child care job posting service providing online information about licensed potential child care providers to include a statement regarding a parent's right to access complaint information about a provider.

If an online child care job posting service provides access to a background check, the bill would require the service to include on its website a written description of the background check provided by the background check service provider which the background check service provider would be required to furnish.

Importantly, the bill would authorize an online child care job posting service or background check service provider to be liable for a civil penalty for failing to comply with these requirements and would authorize the Attorney General, a city attorney, or a county counsel to bring such an action if certain requirements are met. The bill would also authorize an individual damaged by willful violation of these provisions to bring a civil cause of action for damages.

VI. PUBLIC EMPLOYEES

Higher Education Employer-Employee Relations Act: Employees

SB 201 amends the Higher Education Employer-Employee Relations Act by removing a provision that exempted student employees from coverage if their employment was related to their education objectives, such educational objectives were not subordinate to the services they perform, and such exemption did not further the purposes of the Act. Instead, the bill would make student employees whose employment was contingent on their status as student employees for the purposes of the Act. The bill also specifies that the University of California's decisions regarding students' satisfactory progress toward a degree would not be within the scope of employer-employee relations thus excluding the subject from meet and confers with employee organizations.

Public Employers: Union Organizing

SB 285 amends Government Code section 3550-3552 to enlarge protections for employees from interference in union activities by state agencies. In addition to existing law which prohibits a public employer from using public funds to assist, promote, or deter union organizing, the bill would prohibit a public employer from deterring or discouraging public employees from becoming or remaining members of an employee organization without regard to the source of funding. The bill expands the definition of public employer to include entities like counties, cities, districts, the state, schools, transit districts, the University of California, and the California State University, among others.

Enhanced Industrial Disability Leave

SB 334 amends the Government Code to grant enhanced industrial leave to members of State Bargaining Unit 8 which is comprised of firefighters. Existing law already provides industrial leave to state employees who are members of the Public Employees' Retirement System or the State Teachers' Retirement System. The bill would provide an employee who is a member of Unit 8 and is temporarily disabled in the course of state employment for more than 22 days an extended industrial disability leave benefit based on his or her net salary. The bill would authorize the employee to receive this benefit for a period not to exceed 52 weeks after the date of injury or until the date the injury is declared permanent, whichever is earlier. The bill would additionally authorize an eligible employee whose injuries are burn-related to receive the benefit for up to 156 weeks.

VII. MISCELLANEOUS

Digital Signatures

AB 2296 amends Civil Code section 1633.2 by making clear digital signatures satisfy the requirements of an electronic signature under the Uniform Electronic Transactions Act, which is applicable to Department of Fair Employment and Housing (DFEH) documents.

Public Contracts: Skilled and Trained Workforce

SB 418 amends the Public Contract Code to revise the definition of "skilled and trained workforce" for the purpose of public contracts. Beginning January 1, 2017, the definition of "skilled and trained workforce" is amended to require contractors to hire for work on public contracts at least 30% skilled journeypersons who have graduated from an apprenticeship program in their discipline. Each year thereafter, and with a final adjustment on January 1, 2020, the percentage of journeymen increases by 10 percentage points, ending with a requirement of 60% journeypersons who have graduated from an apprenticeship program in their discipline. The bill exempts a number of occupations from the requirements including teamsters, bricklayers, drywall installers, etc.

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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