Nov 26, 2013

California Employment Update

Paid Family Leave Program Expanded

Governor Jerry Brown recently signed Senate Bill (“SB”) 770 that will expand the scope of California’s family temporary disability program to adapt to the modern family dynamic that is emerging in the workforce.  Due to the increase in the number of single parents, as well as the increase in participation of both parents in the workforce, the bill responds to workers’ needs to care for their ailing family members.

Previously, “family care leave” encompassed only caring for a child, parent, spouse, or domestic partner.  After July 1, 2014, the expanded definition allows an employee to take leave to care for a grandparent, grandchild, sibling, or mother or father-in-law.  The law still provides up to six weeks of family temporary disability insurance benefits for any 12-month period.

The expansion will amend sections 2708, 3300, 3301, 3302, and 3303 of California’s Unemployment Insurance Code.  Employers should review their policies to ensure compliance with the new law by July 1, 2014.

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Stalking Victims Provided Greater Protection

Existing California law provides protection to victims of domestic violence or sexual assault and prevents retaliation against such victims for taking time off of work to attend to issues arising as a result of these crimes. Under the current law, an employer may not willfully refuse to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for such hiring.  SB 400 extends these protections to victims of stalking.  The bill also prohibits an employer from discharging, discriminating or retaliating against an employee in any manner because of the employee’s status as a victim of domestic violence, sexual assault, or stalking.

Additionally, employers are required to provide reasonable accommodations to such victims including, but not limited to, transfer, reassignment, modified schedules, changed work telephone numbers, changed work stations, and referral to a victim assistance organization.

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Fair Employment and Housing Act Extends Protection to Veterans

The California Fair Employment and Housing Act protects against discrimination based on race, religious creed, color, national origin, ancestry, physical disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.  Assembly Bill (“AB”) 556 extends this protection to add “military and veteran status” to the list of categories protected.  The new law provides an exemption for inquiries by an employer regarding military or veteran status for the purpose of awarding a veteran’s preference permitted by law.  “Military and veteran status” is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.

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New Protections for Victims of Crime

California’s current law prohibits an employer from discharging or discriminating against an employee who is: 1) taking time off to serve on a jury, 2) a victim of a crime for taking leave to appear in court as a witness, or 3) a victim of domestic violence or sexual assault for taking leave to address any issues related to the crime.

SB 288 prohibits an employer from discharging, discriminating against, or retaliating against an employee who is a victim of a crime for taking time off of work to appear in court or be heard at any judicial proceeding.  In the event of such improper employer behavior, the employee may now be entitled to reinstatement and lost wages and benefits.

The law lists several crimes that are covered including, but not limited to, assault resulting in the death of a child under eight years of age, felony domestic violence, felony physical abuse of an elder or dependent adult, vehicular manslaughter, felony child abuse, and sexual assault.  The term “victim” includes the person’s spouse, parent, child, sibling, or guardian.  The employer cannot take any action against the employee if the employee, within a reasonable time of the absence, provides a certification to the employer.  A certification may include a police report, a court order, or documentation by a medical professional.

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Employers’ Recovery of Attorney’s Fees Limited

California law requires that in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, a court must award reasonable attorney’s fees and costs to the prevailing party as long as one of the parties requested attorney’s fees at the commencement of the action.  Unfortunately for California employers, that is no longer the case.

The new law amends Section 218.5 of the California Labor Code to provide that an award of attorney’s fees and costs where the prevailing party is not an employee is contingent on a finding by the court that the employee brought his or her claim against the employer in bad faith.  However, employers and attorneys should note that this section will not apply to claims to recover minimum wage or overtime compensation.  Further, Section 218.5 does not apply to claims brought for unpaid meal and rest breaks.

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Rescue Personnel and Reserve Peace Officers Allowed Leave of Absence for Training

Existing law requires an employer with 50 or more employees to permit an employee who is a volunteer firefighter to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in fire or law enforcement training.  AB 11 amends these provisions to require employers to permit not only volunteer firefighters, but also reserve peace officers and emergency rescue personnel to take temporary leaves of absence for training purposes.

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New Domestic Worker Bill of Rights

AB 241 was enacted to regulate the work hours for certain domestic work employees and provide an overtime compensation rate for those employees.  The bill defines “domestic work” as services related to the care of persons in private households or maintenance of private households or their premises.  Domestic work occupations include, but are not limited to, childcare providers, caregivers of people with disabilities, sick, convalescing or elderly persons, house cleaners, housekeepers, and maids.  As of now, the bill provides a bill of rights for a “personal attendant,” that is, any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision.  According to the bill, personal attendants must receive one and one half times the pay for any and all hours worked over nine hours in any workday or more than 45 hours in any week.  Additions will likely be made to the bill in the future since no other rates of pay for domestic workers are defined yet.

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Sexual Harassment Definition Expanded

In Kelley v. The Conco Cos., 196 Cal. App. 4th 191 (Cal. Ct. App. 2011), a male ironworker brought suit against his former coworker and company where he was repeatedly barraged with sexually laden, crude, and offensive language by the coworker.  The First District Court of Appeal found that such conduct did not constitute sexual harassment because it was not an expression of actual desire or intent, and the remarks were not motivated by the plaintiff’s sexual orientation because the plaintiff was a heterosexual. In response, the California Legislature introduced SB 292 that allows an employee who claims sexual harassment to prevail on his or her claim without having to show that such harassment was motivated by the harasser’s sexual desire, thus overruling the decision in Kelley.

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Revisions Made to the California Whistleblower Protection Act

The California Whistleblower Protection Act prohibits acts of reprisal, retaliation, coercion, or similar acts against a state employee or an applicant for state employment who made a protected disclosure relating to an improper governmental activity.  The current law prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency if the employee has reasonable cause to believe that the information involves a violation of a state or federal statute, or a violation of or noncompliance with a state or federal rule or regulation.

SB 496 expands these provisions to protect employees that disclose information regarding the violation of a local rule or regulation.  The law also prohibits employer retaliation where the employee discloses a violation of federal or state statute, or violation of or noncompliance with a local, state, or federal rule or regulation to any person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation.  Previously, the law only protected disclosures to a government or law enforcement agency.

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Immigration Rights and Anti-Retaliation Protections Expanded

California law prohibits an employer from discharging or discriminating against an employee for engaging in protected conduct to enforce his or her employment-related rights.   An employee who makes a bona fide complaint and is subsequently discharged or suffers other adverse action as a result is entitled to reinstatement and reimbursement for lost wages.  It is currently a misdemeanor for an employer to willfully refuse to reinstate or restore an employee who is eligible for reinstatement.

AB 263 extends these protections to any applicant for employment who engaged in protected conduct.  Moreover, the law expands the protected conduct to include a written or oral complaint by an employee that he or she is owed unpaid wages.  Any violation of these provisions will result in a civil penalty of up to $10,000 per violation.  The new law also provides that it is not necessary to exhaust administrative remedies or procedures in the enforcement of the specified provisions.

This bill also makes it unlawful for an employer or any other person to engage in, or direct another person to engage in, an unfair immigration-related practice against a person in retaliation for exercising a protected right under state law or local ordinance.  The law also creates a rebuttable presumption that an employer’s adverse action is committed in retaliation if taken within 90 days of an employee exercising a protected right.

Additionally, a civil action may be brought by an employee who is the subject of an unfair immigration-related practice, and a court may order the appropriate government agencies to suspend the business licenses held by the violating parties.  Finally, the law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update his personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.

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Employers May Not Ask Applicants for Information about Sealed Convictions

California law currently prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining whether or not to hire the applicant, information concerning an arrest or detention that did not result in a conviction.  SB 530 now also prohibits an employer from asking about or using information regarding an employee’s conviction that was judicially dismissed or ordered sealed.

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Labor Commissioner May Collect Liquidated Damages on Behalf of Workers

Existing state law grants a worker the right to recover restitution and liquidated damages in a minimum wage claim hearing or lawsuit.  However, as it pertains to field investigations, the Labor Commission does not have the authority to collect liquidated damages on behalf of the workers as the Labor Commissioner may only: 1) assess a civil penalty against the employer, or 2) recover wages owed to the worker.  AB 442 fills the remaining gap in the Labor Commissioner’s authority by allowing the collection of minimum wage liquidated damages for entitled workers.

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Employers Now Criminally Liable for Failure to Remit Withholdings

As California employers know, failure to make agreed-upon payments to health and welfare funds, pension funds, or various benefit plans is punishable as a felony if the amount exceeds $500, and punishable as a misdemeanor if the amount is less than $500.  SB 390 now makes it a crime for an employer to fail to remit withholdings from an employee’s wages that were made pursuant to state, local, or federal law.

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Labor Commissioner Can Obtain Lien on Employer’s Real Property

Employers should be on alert as their real property is no longer safe from the Labor Commission.  Current law requires the Labor Commissioner to file a final order in an employment-related action with the clerk of the superior court.  The superior court then enters judgment in conformity with the final order, and the judgment has the same force and effect as a judgment entered in a civil action.  With AB 1386, the Labor Commissioner may now file a certified copy of the order with the county recorder of any county in which the employer’s property may be located.  The amount due under the final order shall be a lien on the employer’s personal and real property, as specified, and would require the county recorder to record the order as a mortgage on the real estate and to file and index the order as a security interest.

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Recovery Periods for Certain Employees Now Required

Existing law prohibits an employer from requiring an employee to work during any meal or rest period mandated by an order of the Industrial Welfare Commission (“IWC”).  A new bill (SB 435) would make the prohibition applicable to a meal, rest, or recovery period mandated not only by the IWC, but by the Occupational Safety and Health Standards Board, and the Division of Occupational Safety and Health as well.  The new law requires that an employer pay an employee for any meal or rest or recovery period mandated by law for each workday that the period is not provided.  “Recovery Period” is defined as a cool down period afforded an employee to prevent heat illness.  Title 8, § 3395 of the California Code of Regulations recommends that employers allow employees to take a cool down rest in the shade as needed for a period of no less than five minutes.

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DMV Required to Issue Driver Licenses to Undocumented Persons

 A new California law requires the DMV to issue driver licenses to persons that cannot offer proof of United States citizenship.  The law will allow the DMV to adopt regulations that detail how applicants can prove their identity and California residency.  The licenses will carry a special designation on the front and a notice that indicates it cannot be used to prove eligibility for employment or public benefits.  Furthermore, the law prevents any discrimination based on the license.

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