Having reconvened this past Monday from Spring Recess, the California Legislature will return its attention to the employment-related bills that were introduced for this 2015-16 Legislative Session. These bills—covering topics including paid leave rights, hours of work, and payment of wages—will now be heard in committees, as their authors attempt to carry them through the process to the Governor’s desk for approval. While it is too early to tell which bills will make the cut, those that do will be sure to affect employers doing business in California.
The proposed bills we’re watching most carefully are:
Mandatory Paid Sick Leave
Three proposed bills would revise and “clarify” California’s Paid Sick Leave law, the Healthy Workplaces, Healthy Families Act of 2014. The first, AB 304, which we noted last week, seeks to clarify various ambiguities in the existing law, by perhaps requiring that an employee work for the same employer for 30 or more days within the previous 12 months to qualify for paid sick leave.
The second, SB 579, would permit employees to use “sick leave” to address a childcare or school emergency (defined as when a child cannot remain in school or a child care facility due to illness, injury, behavioral problems, closure, or natural disaster). And the third, AB 11, would include in-home support services under the definition of “employees” under the existing Paid Sick Leave Act, starting July 1, 2016.
Remember the recent San Francisco Retail Workers’ Bill of Rights? Perhaps on the thought that this city-wide legislation is too puny, Assembly Members Chiu and Weber have introduced a state-wide Incredible Hulk version, entitled the “Fair Scheduling Act of 2015”; AB 357.
AB 357 would apply to “food and general retail establishments” (“FGRE”) that have a physical location with in-person sales (including grocery, general merchandise, department, and health and personal care stores) and 500 or greater employees in California and 10 or more other such retail sales establishments in the U.S. and maintain two or more standardized components (e.g., décor and uniforms). AB 357 would require FGREs to provide employees with at least two weeks’ notice of their work schedules, and to pay compensation to employees whenever the FGRE changes or cancels a scheduled shift, adds an unscheduled shift, or requires an employee to be on call but then does not give the employee a work shift. There would be seven specific exceptions, such as when operations cannot begin or continue due to public utilities failing to supply electricity, water, or gas; when the FGRE requires the employee to work overtime; or when another employee previously scheduled to work a shift has not reported to work on time. The bill would also prohibit FGREs from discriminating against employees who receive CalWORKs or CalFresh assistance, and require FGREs to allow employees be absent two times of up to eight hours to attend appointments at the county human services agency.
Payment of Wages
More minimum wage hikes, except for “qualified tipped employees”
- SB 3 would increase the minimum wage to $11 per hour in 2016 and $13 per hour in 2017. The bill would also, beginning January 1, 2019, automatically adjust the minimum wage on January 1 of each year to maintain employee purchasing power diminished by the rate of inflation in the prior year. Last year SB 935, which would have increased the minimum wage to $11 in 2015 and an additional dollar for the next two years, died in committee. In 2013, legislation did pass increasing the minimum wage to $9 an hour effective July 1, 2014, then $10 an hour effective January 1, 2016.
- AB 1007 would set the minimum wage on and after January 1, 2016 at “the amount necessary to keep a family of 3 above the supplemental poverty level.”
- AB 669 would—notwithstanding current law that will have the minimum wage increase to $10 in 2016—keep the minimum wage for employees “who regularly receive income from wages (including tips) at a rate equal to at least fifteen dollars ($15) per hour” (“qualified tipped employees”). The bill, sponsored by the California Restaurant Association, would preempt local ordinances unless the ordinance specifically refers to this legislation and states an intent to provide for a higher wage.
- OT Exemption. AB 1470 would establish a rebuttable presumption that employees with gross annual compensation of $100,000 or greater (at least $1,000 per week paid on a salary or fee basis) who regularly perform any exempt duties of an executive, administrative, or professional employee are exempt from overtime pay. The bill would apply to employees whose primary duties include office or non-manual work. It would not apply to employees covered under a valid collective bargaining agreement with certain provisions.
- Double Pay on the [sic] Holiday Act of 2015. AB 67 would require employers to pay employees—excluding those covered by a valid collective bargaining agreement—double pay on Christmas (no other religious holidays are included) and Thanksgiving.
- Theatrical Employees. AB 1506 would expand to certain employees employed at a venue that hosts live theatrical or concert events the existing civil penalty imposed on employers who pay an employee by a check, draft, or voucher that is refused payment because it is drawn on a nonexistent account or on an account that has insufficient funds.
- Professional Sports Cheerleaders. AB 202, sponsored by former cheerleader Assembly Member Lorena Gonzalez, would require California-based professional baseball, basketball, football, ice hockey, or soccer teams ensure cheerleaders who perform during those teams’ exhibitions or games be classified and treated as employees. AB 588 would, by deleting Section 226(a) from Section 2699.5 of the Labor Code, amend California’s Private Attorneys General Act, and purportedly provide employers with the right to cure inadequate wage statements before an employee may bring a civil action alleging a PAGA claim based on Section 226(a).
- Workplace Flexibility Act of 2015. AB 1038 would, as part of the “Workplace Flexibility Act of 2015,” amend the Labor Code to permit nonexempt employees to request employee-selected flexible work schedules providing for workdays up to 10 hours per day without obligating the employer to pay overtime for those additional hours.
- Discrimination Prohibitions:
- Unemployed applicants. Undeterred from the Governor’s 2014 veto of very similar legislation in AB 2271, AB 676 would prohibit employers—in the absence of a bona fide occupational qualification—from publishing an announcement for a job indicating that current employment is a requirement and from requiring applicants to disclose their current employment status. These provisions provide for filing of complaints with, and imposition of penalties by, the Labor Commissioner. This bill expressly does not create a private right of action.
- Public Employees. AB 883 would prohibit private and public employers from discriminating against current or former public employees in job advertisements, disqualification from job eligibility, and adverse employment decisions. It would also prohibit persons operating job posting websites from publishing any job advertisement or announcements that indicates the applicant must not be a current or former public employee. The bill would add these provisions to the Labor Code, and authorize aggrieved applicants or prospective applicants to seek and recover actual damages (or minimum $200-$500, depending on intent), costs, and attorneys’ fees.
- Age Information. AB 984 would prohibit an employer from using information obtained on a website regarding an employee’s or applicant’s age in making any employment decision regarding that person. The bill would also extend application of California’s antidiscrimination laws to “commercial online entertainment employment service providers” who knowingly accept payment from persons in California in exchange for posting their resumes and professional photos online. This bill would add these provisions to the Labor Code.
- Voluntary Veterans’ Preference Employment Policy Act. AB 1383 would amend FEHA to ensure none of its nondiscrimination provisions affect the hiring decisions of an employer that maintains a veterans’ preference employment policy (to give a voluntary preference for hiring or retaining a veteran over another qualified applicant or employee), established in accordance with the Voluntary Veterans’ Preference Employment Policy Act (Gov. C. Section 12958 et seq.), which this bill would also create. Unfair Immigration-Related Practices. AB 1065 would make it an unlawful employment practice for an employer to request more or different documents than are required under federal law relating to verification that an individual is not an unauthorized alien, or to refuse to honor documents tendered that on their face reasonably appear to be genuine, or to attempt to reinvestigate or re-verify an incumbent employee’s authorization to work unless required to do so by federal law or authority.
Workplace Solutions: We will continue to monitor and report on these, and any other significant legislative developments of importance to California employers, as they occur. Continue to watch this space.