May 28 was the deadline for California bills to clear their house of origin this year, and many bills of interest – and concern – to California private sector employers moved to the other chamber. Here are some of the “live” bills to watch.1
- AB 1522 (paid sick leave). This may be the most significant labor and employment bill to most California private sector employers in this year’s legislative session.
- SB 935 (minimum wage increase)
- AB 2416 (priority liens against employer property for filed, but not proven, wage claims)
- AB 1897 (labor contracting; client liability)
- AB 2617 (restricting arbitration of claims, including those under the Fair Employment and Housing Act (FEHA))
- AB 1660 (FEHA violation for acting on undocumented worker’s driver’s license)
- AB 2053 (adding “abusive treatment” to required sexual harassment (AB 1825) training)
- AB 1792 (cost of employees’ public benefits to state; sometimes called the “public shaming” bill)
SB 1372, which would have based a business’s corporate tax rate in part on the compensation of its U.S. employees, was a casualty of the legislative process. Also shot down were AB 2079 and 2095, which would have allowed employers to correct inaccurate wage statements before litigation could be filed, and the “flexible workplace” proposals simplifying the requirements for employers to offer four-day, 10-hour workweeks (e.g., AB 2448).
This subjective listing of “hot bills” cannot include “spot bills.”2 And keep in mind that more legislative fun takes place during the last weeks of the legislative session (this year in August) when the moving pieces really pick up speed.
The upcoming major legislative deadlines in 2014 are:
- July 3-August 4 (summer recess)
- August 22 (last day to amend bills on the floor)
- August 31 (last day to pass bills; legislature recesses for year on adjournment)
Governor Brown then has until September 30 to sign or veto bills passed by the Legislature at the end of the 2014 legislative session.
Unless passed bills contain an urgency clause, those bills signed by the Governor will take effect January 1, 2015.
Other events affecting the California legislative process or new laws include:
- The Senate Democrats lost their two-thirds majority this past spring based on the criminal indictments or convictions of three members (now on paid leaves of absence), but they retain their working majority, as do the Assembly Democrats. With virtually all significant votes continuing to be cast on a partisan basis, Democrats in the Legislature have a clear road to passage on any bills they favor as a group.
- The Assembly Democrats changed leaders this spring, as Toni Atkins of San Diego took over from John Perez as Speaker. A similar switch is expected in the Senate after the annual state budget is passed before the summer recess starts in July, with Kevin de León of Los Angeles rumored to replace Darryl Steinberg of Sacramento as Senate President pro Tempore (majority leader).
- In local news, the cities of Berkeley and Richmond are moving forward on minimum wage laws. Santa Clara County’s Board of Supervisors has directed its staff to draft a living wage ordinance for the County. And a Los Angeles councilmember has suggested that the city consider its own minimum wage ordinance.
- The first stage of the minimum wage increase (2013-14 AB 10) goes into effect July 1, 2014, with an increase to $9.00 per hour.
- One of the initiatives qualifying for the November 2014 general election would increase the damages cap on medical malpractice cases – and also subject California physicians to random and post-accident drug testing.
2014 California Private Sector Workplace Legislation
Following is a listing of the currently pending significant active bills3 relating to private sector employment law.4
AB 26 (gutted and last amended5 June 3) would revise the definition of “construction” for public works projects to also include work performed during the post-construction phases of construction, including, but not limited to, all cleanup work at the jobsite. The bill would also expand the definition of “public works,” for the purposes of requirements regarding the payment of prevailing wages, to include any task relating to the collecting or sorting, or both, of refuse or recyclable metals, such as copper, steel, and aluminum, performed at a public works jobsite. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 326 (last amended January 6) would require every employer to make an immediate report by telephone or email of every case involving an employee’s serious injury or illness or death to the Division of Occupational Safety and Health. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1443 (as amended May 1) would provide that discrimination against any person in the selection, termination, training, or other terms or treatment of that person in an unpaid internship, or any other program to provide unpaid experience for that person in the workplace or industry, or the harassment of an unpaid intern or volunteer, on account of the factors described above, is an unlawful employment practice. (The bill has yet to receive an opposing vote.) Hearingin Senate Judiciary Committee June 10.
AB 1522 (last amended May 28) would enact the Healthy Workplaces, Healthy Families Act of 2014; would provide that an employee, as defined, who on or after July 1, 2015 works in California for seven or more days in a calendar year, is entitled to paid sick days to be accrued at a rate of no less than one hour for every 30 hours worked; employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment; would authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each calendar year; would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee’s family member, or for leave related to domestic violence, stalking, or sexual assault; employer would be prohibited from discriminating or retaliating against an employee who requests paid sick days; would require employers to satisfy specified posting and notice and recordkeeping requirements; would require the Labor Commissioner to administer and enforce these requirements, including the promulgation of regulations, and the investigation, mitigation, and relief of violations of these requirements; would authorize the Labor Commissioner to impose specified administrative fines for violations and would authorize the commissioner or the Attorney General to bring an action to recover specified civil penalties against an offender, as well as attorney’s fees, costs, and interest; would specify that bill does not apply to employees covered by a collective bargaining agreement that provides for paid sick days, nor lessen any other obligations of the employer to employees; would not apply to employees in the construction industry covered by a collective bargaining agreement if the agreement contains specified terms and was either entered into before January 1, 2015, or expressly waives the requirements of the bill in clear and unambiguous terms. (The California Chamber of Commerce has labeled this bill a “job killer.”) Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1543 (last amended April 21) would require the Employment Development Department, upon receipt of the written notice, to forward a copy of any written employer notice of a mass layoff, relocation, or termination to the Governor’s Office of Business and Economic Development; would also require the Employment Development Department and the Governor’s Office of Business and Economic Development each to post the notice on their websites. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1562 (last amended April 1) would designate a public or private school employee eligible for a leave of absence under the Moore-Brown-Roberti Family Rights Act, when the employee has either 1,250 hours of service with the employer during the previous 12-month period, or service during that period of at least 60% of the hours that an employee who is employed full time is required to perform in a school year. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1576 (last amended May 14) would require an exposure control plan (akin to an injury prevention plan) for employers in the adult film industry, including among other requirements that the employee consent to disclosing to the Department of Industrial Relations that the employee was the subject of an HIV test. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1634 would prohibit the stay of an abatement period during the pendency of an appeal to the Occupational Safety and Health Appeals Board of a citation for a violation that is classified as a serious violation, repeat serious violation, or willful serious violation. The bill would, however, authorize the division to stay these abatement periods, upon request, if the division determines that a stay will not adversely affect the health and safety of employees. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1660 (last amended April 24) would make it a violation of theFair Employment and Housing Act to discriminate against an individual because he or she holds or presents a driver’s license indicating that the holder is undocumented. Hearingin Senate Judiciary Committee June 10.
AB 1680 (as amended March 11) would require a person with a valid Child Performer Services Permit to include the permit number on advertising in print or electronic media, including, but not limited to, Internet websites, or in any other medium of casting advertising. Pending in Senate Labor and Industrial Relations Committee.
AB 1723 would expand penalties, restitution, and liquidated damages provisions for a citation to any employer, who pays or causes to be paid to any employee a wage less than the minimum fixed by an order of the commission to a citation that includes a civil penalty, to also subject the employer to payment of any applicable penalties for the willful failure to timely pay wages of a resigned or discharged employee. Pending inSenate Labor and Industrial Relations Committee.
AB 1746 (last amended March 20) would require that worker’s compensation cases in which the employee is or was employed by an illegally uninsured employer and the disputed issues are employment- or injury-related be placed on the priority conference calendar established under existing law. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1792 (last amended May 23) would require the state to compile and publish online for five years, for any employer of 25 or more public assistance beneficiaries, as defined, the name and address of the employer, the number of beneficiaries employed by the employer, the percentage of the employer’s workforce comprising beneficiaries, the total cost to the state of the aggregated benefits provided to an identified employer's beneficiary employees, and the total cost to the state of the aggregated benefits provided to each identified employer's beneficiary employees; would prohibit an employer from discharging or in any manner discriminating or retaliating against an employee who enrolls in a public assistance program, refusing to hire a beneficiary for reason of being enrolled in a public assistance program, and disclosing to a nongovernmental entity that an employee receives or is applying for public benefits. Pending in Senate Committee on Health.
AB 1870 would, if there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and geographical area for which public works prevailing wage training contributions were made to council, require the grant to be divided among all the approved multiemployer apprenticeship programs serving the same craft or trade in California based on the number of apprentices registered in each program. Hearing inSenate Labor and Industrial Relations Committee June 25.
AB 1897 (amended May 28) would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for the payment of wages, failure to report and pay all required employer contributions, worker contributions, and personal income tax withholdings, and failure to obtain valid workers’ compensation coverage. The bill would define a client employer as a business entity that obtains or is provided workers to perform labor or services within the usual course of business from a labor contractor, except as specified. The bill would define a labor contractor as an individual or entity that supplies workers, either with or without a contract, to a client employer to perform labor or services within the client employer’s usual course of business and would except from this definition specified nonprofit, labor, and motion picture payroll services organizations. The bill would specify that it does not prohibit client employers and labor contractors from mutually contracting for otherwise lawful remedies for violations of its provisions by the other party. The bill would require a client employer or labor contractor to provide to a requesting enforcement agency or department, and make available for copying, information within its possession, custody, or control those records required to verify compliance with applicable state laws. The bill would authorize the Labor Commissioner, the Division of Occupational Safety and Health, and the Employment Development Department to adopt necessary regulations and rules to administer and enforce the bill’s provisions. The bill would provide that waiver of its provisions is contrary to public policy, void, and unenforceable. (The California Chamber of Commerce has labeled this bill a “job killer.”) Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 1939 (last amended June 2) would authorize a public works contractor, as defined, to bring an action in a court of competent jurisdiction to recover from the hiring party, as defined, that the contractor directly contracts with, any increased costs, including labor costs, penalties, and legal fees incurred as a result of any decision by the Department of Industrial Relations, the Labor and Workforce Development Agency, or a court that classifies, after the time at which the hiring party accepts the contractor’s bid, awards the contractor a contract when no bid is solicited, or otherwise allows construction to proceed, the work covered by the project, or any portion thereof, as a public work, except under the circumstances specified. Hearingin Senate Judiciary Committee June 10.
AB 2053 would require that existing required training of supervisors concerning sexual harassment training and education include, as a component of the training and education, prevention of abusive conduct, as defined. Hearing inSenate Labor and Industrial Relations Committee June 25.
AB 2074 would provide that a suit forliquidated damages may be filed at any time before the expiration of the statute of limitations for bringing the underlying action alleging payment of less than the state minimum wage. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 2271 (last amended March 28) would make it unlawful, unless based on a bona fide occupational qualification or any other provision of law, for an employer, an employment agency, or a person who operates an website for posting jobs in California to publish an advertisement or announcement for any job that includes provisions pertaining to an individual’s current employment or employment status, as specified. The bill would subject an employer, an employment agency, or a person who operates a website for posting jobs in California who violates the above provisions to civil penalties that increase as the number of violations increase. This bill would also provide that no private right of action is authorized for a violation of these provisions. Pending assignment by Senate Rules Committee.
AB 2288, labeled the “Child Labor Protection Act of 2014,” would award treble damages to an individual who was discriminated against in the terms or conditions of his or her employment because he or she filed a claim or civil action alleging a violation of employment laws that arose while the individual was a minor. The bill would further subject a specified class of violations of employment laws relating to the employment of minors to a civil penalty, as provided. The bill would also require the tolling of the statute of limitations for claims arising from violations of employment laws until the person allegedly aggrieved attains majority, and would declare the latter provision declaratory of existing law. (No opposition to this bill through house of origin.) Hearingin Senate Judiciary Committee June 10.
AB 2362 (as amended April 21) would provide for the forfeiture of, and ineligibility for, unemployment insurance benefits for certain time periods for any individual under specified forgery, grand theft, and false claims provisions in state law or a federal mail fraud provision for those acts or omissions. Hearing inSenate Labor and Industrial Relations Committee June 11; also referred to Senate Committee on Public Safety.
AB 2416 (last amended May 23) with certain exceptions, would authorize an employee to record and enforce a wage lien upon real and personal property of an employer, or a property owner, as specified, for unpaid wages and other compensation owed the employee, and certain other penalties, interest, and costs. The bill would prescribe requirements relating to the recording and enforcement of the wage lien and for its extinguishment and removal. The bill would require a notice of lien on real property to be executed under penalty of perjury. The bill would authorize the employer or property owner to use a procedure to release the notice of lien if the employer makes specified contentions, and would require a specific certification under the procedure to be made under penalty of perjury. (The California Chamber of Commerce has labeled this bill a “job killer.”) Pending assignment by Senate Rules Committee.
AB 2536 (gutted and last amended June 3) would require an employee who is a health care provider, as defined, to notify his or her employerat the time the employee becomes designated as emergency rescue personnel and when the employee is notified that he or she will be deployed as a result of that designation. This bill would expand the definition of emergency rescue personnel to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 2617 (last amended April 30) would prohibit a person from requiring a waiver of the protections afforded under specified civil rights laws as a condition of entering into a contract for the provision of goods or services, including the right to file and pursue a civil action or complaint with, or otherwise notify, the Attorney General or any other public prosecutor, or law enforcement agency, the Department of Fair Employment and Housing, or any court or other governmental entity. This bill would require any waiver of the protections afforded under those provisions to be knowing and voluntary, and in writing, and expressly not made as a condition of entering into the contract or as a condition of providing or receiving goods or services. This bill would provide that any person seeking the enforcement of a waiver of the protections afforded under those civil rights provisions shall have the burden of proving that the waiver was knowing and voluntary and not made as a condition of the contract or of providing or receiving the goods or services. The bill’s provisions would apply to contracts entered into, altered, modified, renewed, or extended on and after January 1, 2015. This bill would provide that its provisions shall not be construed to negate other specified provisions. (The California Chamber of Commerce has labeled this bill a “job killer.”) Pending assignment by Senate Rules Committee.
AB 2733 (last amended May 12) would extend the operation of voluntary disability benefits plan provisions indefinitely. This bill would require the small business third-party administration use of separate accounting ledgers, rather than individual subaccounts, for each client’s contributions and plan assets. The bill would make the small business third-party administrator, rather than the employer, responsible for providing the financial security requirements for the plan. The bill would also authorize the Director of Employment Development to terminate a plan for cause and to recover plan assets from the small business third-party administrator, as specified. This bill would declare that it is to take effect immediately as an urgency statute. Hearing inSenate Insurance Committee June 11.
AB 2743 would apply thecivil penalty and suit provision to the violation of a time limit for payment of wages established under a collective bargaining agreement provision entered into by specified employees in the entertainment industry. Hearing inSenate Labor and Industrial Relations Committee June 11.
AB 2744 would expand currentpenalties of ineligibility to bid on, be awarded, or perform work as a subcontractor on a public works contract for specified periods of time to violations of provisions related to the employment of apprentices. Hearing inSenate Labor and Industrial Relations Committee June 25.
AB 2750 (last amended March 28) would require a car washemployer to provide written notice to a successor employer regarding recordkeeping requirements, registration, $150,000 bond, and successor liability, prior to the sale or other transfer of the business. Hearing inSenate Labor and Industrial Relations Committee June 25.
AB 2751 (last amended May 28) would expand the definition of unfair immigration-related practice to include threatening to file or the filing of a false report or complaint with any state or federal agency. The bill would authorize a civil action for equitable relief and any applicable damages or penalties by an employee or other person who is the subject of an unfair immigration-related practice. The bill would further authorize a court to order, upon application by a party or on its own motion, the appropriate government agencies to suspend certain business licenses held by the violating party for prescribed periods based on the number of violations. This bill would also prohibit an employer from discharging or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update personal information based on a lawful change of name, social security number, or federal employment authorization document. The bill would prohibit an employer’s compliance with these provisions from serving as the basis for a claim of discrimination, including any disparate treatment claim. Hearingin Senate Judiciary Committee June 10.
SB 266 (gutted and last amended January 6) would require the body awarding the contract for public work to furnish, within 10 days after receipt of a written request from the Labor Commissioner, a copy of the valid notice of completion for the public work or a document evidencing the awarding body’s acceptance of the public work on a particular date, whichever occurs later, in accordance with specified provisions. The bill would require the awarding body to notify the appropriate office of the Labor Commissioner if, at the time of receipt of the Labor Commissioner’s written request, there has been no valid notice of completion filed by the awarding body in the office of the county recorder, and no document evidencing the awarding body’s acceptance of the public work on a particular date. If the awarding body fails to timely furnish the Labor Commissioner with the applicable document, the bill would require that the period for service of assessments be tolled until the Labor Commissioner’s receipt of the applicable document. Hearing in Assembly Labor and Employment Committee June 25.
SB 477 (gutted and last amended May 1) would, among other things, redefine a foreign labor contractor, require the contractor’s registration and posting of a surety bond with the Labor Commissioner, require written disclosures by foreign labor contractors to foreign workers, require users of foreign labor contractors to make disclosures to the Labor Commissioner, and require information about foreign labor contractors to be posted on the Labor Commissioner’s website. The bill would also create civil and criminal penalties for noncompliance, and joint liability of employers using non-registered foreign labor contractors. Some requirements would be effective July 1, 2016. Hearing in AssemblyLabor and Employment Committee June 11.
SB 935 (last amended May 27) would increase theminimum wage, for both public and private employment, on and after January 1, 2015, to not less than $11 per hour, on and after January 1, 2016, to not less than $12 per hour, and on and after January 1, 2017, to not less than $13 per hour. The bill would further increase the minimum wage annually thereafter, to maintain employee purchasing power. The automatically adjusted (indexed) minimum wage imposed by the Industrial Welfare Commission (IWC) would be calculated using the California Consumer Price Index. The bill would prohibit the IWC from adjusting the minimum wage downward. In Assembly; held at desk.
SB 1083 would amend the Physician Assistant Practice Act to authorize a physician assistant to certify an individual’s disability after performing a physical examination under the supervision of a physician and surgeon consistent with the Act. The bill would correspondingly expand the definition of practitioner to include a physician assistant. Hearing in Assembly Business, Professions and Consumer Protection Committee June 17.
SB 1087 would, among other things, prohibit a license to operate as a farm labor contractor from being granted to a person who, within the preceding three years, has been found to have committed sexual harassmentof an employee; would increase the license fee paid by an applicant from $500 to $600; would require the licensure exam to cover laws and regulations concerning sexual harassment in the workplace; and would increase the amount of educational classes required of licensure applicants to 16 hours of classes and require that those classes include sexual harassment prevention training. In Assembly; held at desk.
SB 1131 would provide that, for purposes of tax withholding laws, an “employee” does not include any member of a limited liability company that is treated as a partnership for federal income tax purposes. Pending in Assembly Revenue and Taxation Committee.
SB 1299 (last amended June 5) would require the Occupational Safety and Health Standards Board, no later than July 1, 2016, to adopt standards developed by the Division of Occupational Safety and Health that require specified types of hospitals, including a general acute care hospital or an acute psychiatric hospital, to adopt a workplace violence prevention plan as a part of the hospital’s injury and illness prevention plan to protect health care workers and other facility personnel from aggressive and violent behavior. The bill would require the standards to include prescribed requirements for a plan. The bill would require the division, by January 1, 2017, and annually thereafter, to post a report on its website containing specified information regarding violent incidents at hospitals. The bill would exempt certain state-operated hospitals from these provisions. Pending in Assembly Labor and Employment Committee and Assembly Health Committee.
SB 1300 (last amended April 21) would, among other provisions, require every petroleum refinery employer to, every September 15, submit to the Division of Occupational Safety and Health a full schedule of planned turnarounds, meaning a planned, periodic shutdown of a refinery process unit or plant to perform maintenance, overhaul, and repair operations and to inspect, test, and replace process materials and equipment, for the following calendar year, as specified. Upon the request of the division, the bill would also require a petroleum refinery employer to provide access on site and provide the division with specified documentation relating to a planned turnaround within a certain period of time, as provided. Pending in Assembly Labor and Employment Committee.
SB 1314 (last amended June 4) would extend the deadline for claimants and employers to appeal unemployment benefits eligibility, as specified, to an administrative law judge (ALJ) and to the California Unemployment Insurance Appeals Board (CUIAB) from 20 to 30 days, on and after July 1, 2015. Pending in Assembly Insurance Committee.
SB 1315 (last amended May 23) would require that notice of temporary suspension of a Medi-Cal provider’s status to contain a list of discrepancies to be remediated and the timeframe in which the provider needs to remediate those discrepancies, which must be at least 60 days from the date the notice of temporary suspension is issued. The bill would require the department to lift a temporary suspension and notify a provider that the temporary suspension has been lifted and that he or she is eligible to receive reimbursement for Medi-Cal services provided after the date the temporary suspension was lifted if the provider has demonstrated that the identified discrepancies have been remediated within the applicable timeframe. A provider who fails to remediate the identified discrepancies, as specified, would be removed from enrollment as a provider in the Medi-Cal program by operation of law. Pending in Assembly Health Committee.
SB 1360 (introduced February 21) would provide that a rest or recovery period mandated by state law, including, but not limited to, an applicable statute, or applicable regulation, standard, or order of the IWC, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, shall be counted as hours worked, for which there shall be no deduction from wages. The bill would declare that provision to be declaratory of existing law. AssemblyLabor and Employment Committee hearing June 11.
SB 1402 (gutted and last amended June 4) would submit an advisory question to the voters in the November 2014 election relating to immigration reform, to take effect immediately. Pending in Assembly Rules Committee.
SB 1407 (last amended May 27) would declare that a waiver or release of claims under the Fair Employment and Housing Act is contrary to public policy and unenforceable, unless the waiver or release of claims is knowing and voluntary. In Assembly; held at desk.