New Employment Laws for 2016

It was a busy year again for new employment-related laws and an active Legislature. Below are brief summaries of the new employment-related laws most likely to affect employers generally. In some cases the new laws are considerably more complex than can be fully discussed in these brief summaries. Future newsletters will likely focus on the new laws of greatest interest to our clients. Unless indicated otherwise, these laws will go into effect January 1, 2016.  For a full copy of the new laws, simply follow the links.

 Amendment of Paid Sick Leave Law

AB 304

• This bill amends various code sections governing the paid sick leave law passed last year by AB 1522 in an attempt to clarify certain issues. These changes, which went into effect immediately upon signing on July 13, 2015, were discussed at length in a previous blog posted by Adrian Hoppes and is available here.

Public Works: Volunteers

AB 327

• Existing law narrowly defines a “volunteer” and provides an exemption from the prevailing wage obligation on public works projects for those individuals falling within the definition.
• This bill extends the exemption from payment of prevailing wages to volunteers who perform work on public works projects. The exemption will now expire on December 31, 2023. The exemption was previously set to expire on December 31, 2016.

Grocery Workers

AB 359

• This bill establishes that a purchaser of a grocery establishment must hire from a list, prepared by the seller, of the current eligible grocery workers. The purchaser must retain the eligible grocery workers for the 90-day period and prohibits the new purchaser from terminating the current eligible employees without cause.
• After the 90-day period expires, the bill requires the purchaser to consider offering continued employment to retained workers, however, the bill allows for a collective bargaining agreement to supersede the imposed requirements and does not preempt local ordinances providing equal or greater protection to eligible grocery workers.
• AB 897, which passed following this bill, defines a grocery establishment to mean a retail store in this state that is over 15,000 square feet in size and sells primarily household food items for outside consumption. A grocery establishment that has ceased operation for six months or more would be exempt from AB 359.

Immigration Status

 AB 560

• This bill expands existing law prohibiting consideration of a person’s immigration status for purposes of enforcing state labor, employment, civil rights, and employee housing laws. The law is expanded to include minor children. The bill also provides that the immigration status of a minor child seeking recovery under any applicable law is irrelevant to liability or remedy, except for employment-related prospective injunctive relief that would directly violate federal law.
• The bill prohibits discovery or inquiry in a civil action or proceeding relating to a minor child’s immigration status except if the child’s immigration status is directly in contention based on the complaint or if the person seeking to make inquiry has shown by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law.

Military Service Protections Expanded

AB 583

• Under existing law, members or reservists of the California National Guard ordered into active service enjoy job protection during their period of military service. This bill extends those same employment rights to persons employed in California who are members of the National Guard of other states called to military service in other states.

Amnesty Program for Motor Carrier Employee Misclassifications

AB 621

• This bill establishes the Motor Carrier Employer Amnesty Program pursuant to Labor Code section 2750.8. Under the program, a motor carrier performing drayage services may be relieved of liability for statutory or civil penalties associated with misclassification of commercial drivers as independent contractors if the motor carrier enters into a settlement agreement, containing certain prescribed components, with the Labor Commissioner by January 1, 2017.
• Under this bill any settlement agreement entered into under the program must include an agreement by the motor carrier to pay all wages, benefits, and taxes owed, if any, and require the motor carrier to maintain any converted commercial driver positions as employee positions and to obtain workers’ compensation coverage for the commercial drivers reclassified as employees.
• In addition, the bill permits a settlement agreement to contain a provision authorizing the Labor Commissioner and the Employment Development Department to recover from the motor carrier their reasonable, actual costs for their review, approval, and compliance and monitoring of the settlement agreement.

E-Verify System: Unlawful Business Practices

AB 622

• This bill expands the prohibited uses of the federal E-Verify system. It specifies that it is unlawful for an employer or any other person to use the E-Verify system in a manner not specifically required or allowed by law, including using the system to check applicants who have not received an offer of employment. The bill would also require the employer to provide the affected employee any notification issued by the Social Security Administration or Homeland Security if the information is specific to that employee’s E-Verify case. A civil penalty of $10,000 is authorized for each violation.

Gender Violence Definition Expansion

AB 830

• This bill extends the meaning of “gender” for purposes of bringing a gender violence lawsuit seeking monetary damages in civil court. This bill aligns the meaning of gender with the same meaning in the Unruh Civil Rights Act. Under the Unruh Civil Rights Act gender falls under sexual discrimination and includes gender identity and gender expression. This bill allows a person who is a victim of gender violence, including expression and identity, to have standing for a civil cause of action.

Expansion of Prevailing Wage Jobs

AB 852

• This bill expands the definition of “public works” to include any construction, alteration, demolition, installation, or repair work done under private contract on a project for a general acute care hospital when the project is paid for, in whole or in part, with the proceeds of conduit revenue bonds that were issued on or after January 1, 2016. There is an exception when the project is a rural acute care hospital with fewer than 77 beds.

Labor Code Violations

AB 970

• This bill provides that a local entity has the authority to issue a citation against an employer for a violation of any local overtime law, the Labor Commissioner, pursuant to a request from the local entity, may issue a citation against an employer. If the Labor Commissioner issues a citation, the local entity shall not cite the employer for the same violation.
  • Existing law requires employers to indemnify employees for all that the employees necessarily expend or lose in direct consequence of the discharge of the employees’ duties or as a result of obeying the employer’s directions. Existing law provides aggrieved employees with a private right of action to recover these expenditures. This bill would authorize the Labor Commissioner to enforce these provisions by issuing citations and assessing penalties against employers for violations of this requirement.

Retaliation Claims Expansion

AB 987

• Existing law prohibits employers from retaliating or discriminating against an employee because of the employee’s disability or religious belief. This bill expands the prohibition by specifying that a retaliation claim can be based upon the mere request for an accommodation. The bill overturns a 2013 appellate court decision that held the mere request for an accommodation was not protected activity.

Unemployment Insurance: Electronic Filing Requirements

AB 1245

• This bill requires all employers with 10 or more employees to electronically file all reports and returns and to remit all contributions for Unemployment Insurance by electronic funds transfer. These requirements will become effective on January 1, 2017.
• Effective January 1, 2018 these rules would be operative for all employers regardless of size.
• The bill contains detailed penalties for employers who fail to file required information electronically. The bill also contains detailed requirements for employers requesting a waiver from the electronic filing.

Apprentice Program Creation

AB 1308

• Existing law provides conditions under which a new apprenticeship training program can be created in the building and construction trades. This bill amends the circumstances under which an employer can create a new training program and removes the authority of the California Apprenticeship Council to approve new programs under special circumstances.

Right to Cure PAGA Violations

AB 1506

• This bill amends California’s Labor Code Private Attorney General Act as it relates to Labor Code Section 226 (a)(6) and 226 (a)(8). These two Labor Code provisions require employers to provide employees with wage statements containing, among other things, the inclusive dates of the pay period and the name and address of the legal entity that is the employer.
• This bill allows an employer 33 days to cure violations of these two requirements before an employee may bring an action for civil penalties under PAGA. However, these violations will not be considered “cured” until the employer can show it has provided fully-compliant wage statements to each aggrieved employee for each pay period for the three-year period prior to the date of the aggrieved employee’s letter to the Labor Workforce Development Agency (LWDA). The new employer right to cure takes effect immediately.

Employer Liability: Employee and Employee Family Member Protected Conduct

AB 1509

• Existing law prohibits employers from retaliating against employees and applicants who make complaints about wage payment violations, safety issues, or other alleged unlawful conduct of an employer.
• This bill amends Labor Code sections 98.6, 1102.5 and 6310 to prohibit employers from retaliating against employees for being a family member of a person who has participated, or who is perceived to have participated in the protected activity of whistleblowing or making complaints about pay or working conditions.

Piece-Rate Compensation

AB 1513

• Recent court decisions have established that employees paid through a piece rate system must receive compensation for rest periods, recovery periods and other non-productive work time that is separate from the piece rate compensation earned during productive work time. This bill codifies the court’s decisions.
• The bill sets forth detailed requirements for piece rate compensation systems and provides employers with the opportunity to avoid claims for wage payment violations by following detailed procedures in paying employees and former employees amounts that are due from past violations.

Unemployment Benefit Extension: Training Benefits

 AB 1514

• Existing law allows a person who is otherwise ineligible for unemployment benefits to apply for and receive benefits during a period of training or retraining provided certain specific eligibility criteria are met.
• This bill expands the eligibility criteria to include a member of a trade association in a retraining course, a person participating in training sponsored by an employer, or a person participating in a state or federally approved apprentice program.

Meal Period Waivers – Health Care Employees

SB 327

• This bill clarifies that health care employees under IWC Wage Orders 4 and 5 are able to waive one of the two required meal periods when working a shift longer than 12 hours. This bill verifies the common understanding and practice that has been in place since before 2000. This clarification was necessary because of a 2015 court decision where the court found that waiver provisions in section 11 of Wage Order 5 was invalid because it was in conflict with Labor Code section 512 which also requires the meal periods but which contain no such waiver provision.

Gender Wage Equality

SB 358

• Existing law generally prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs where the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions. Existing law establishes exceptions to that prohibition where the payment is made pursuant to a seniority system, a merit system, a system which measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex. Existing law requires employers to keep records of wage rates, job classifications and other terms and conditions of employment.
• This bill broadens the requirements for equal pay by prohibiting employers from paying any of its employees at a wage less than those of the opposite sex, for performing substantially similar work, regardless of workplace location.
• The bill also requires the employer to affirmatively demonstrate that a wage difference is based upon one or more specific non-gender factors including; seniority, merit, quantity or quality of production, or another bona fide factor other than gender.
• This bill expands the protections for employees who discuss or make inquiries about wages with co-employees or others.
• This bill also increases the record keeping requirements of the specified records from two years to three years.

Public Works/Prevailing Wage: Temporary Labor

SB 432

• Existing law requires that prevailing wage jobs are first offered to California citizens, then to citizens of another state who are in California at the time of application and finally to aliens in California during periods of temporary unemployment. This bill repeals the definition of “alien” and reorders the hiring preference during periods of temporary unemployment. This bill was discussed at greater length in a previous blog posted by Steve Holden and is available here.

Wage Garnishments

SB 501

• Existing law prohibits the amount of an employee’s weekly disposable earnings subject to levy under a wage garnishment order from exceeding the lesser of 25% of the weekly disposable earnings or the amount by which the individuals disposable earnings for the week exceed 40 times the state hourly minimum wage in effect at the time the earnings are payable, unless exceptions apply.
• This bill reduces the prohibited amount of the employee’s weekly disposable earnings subject to levy under a wage garnishment order from exceeding the lesser of 25% of the individual’s weekly disposable earnings or 50%of the amount by which the individuals disposable earnings for the week exceed 40 times the state hourly minimum wage in effect at the time the earnings are payable.
• The provisions of this bill will become effective on July 1, 2016.

Kin Care

SB 579

• This bill amends California’s Kin Care Law to make it more consistent with the protections and definitions of “family member” under the Healthy Workplaces, Healthy Families Act (Paid Sick Leave).
• The bill clarifies references to “day care facility” to the broader “child care provider” terminology. This bill extends the protections to include instances of a child care provider emergency or a school emergency or the finding, enrolling or re-enrolling of a child in a school. This bill prohibits retaliation against a parent for participating in such activities.
• This bill also redefines the term “parent” to include an employee who is a step-parent, foster parent or is considered in loco parentis to a child.

Nonpayment of Wages

SB 588

• This bill expands the ability of the Labor Commissioner to enforce wage and hour violations. The bill authorizes the Labor Commissioner to act as a levying officer and to issue a levy on an employer’s property (bank accounts, etc.) and directly collect from the person or entity holding the property in order to assist an employee in collecting unpaid wages where there is a judgment against the employer. The bill also requires employers to post bonds to cover any unpaid judgments in order to conduct business in the state and provides that employers in the long-term care industry may be denied licenses where no bond is posted.

Discrimination: Citizenship: Language and Immigration

SB 600