As many are aware, the California Legislature and Governor’s office are controlled by one party, unlike Washington, D.C. Thus, unlike in Washington, legislation introduced by the majority party in Sacramento has an excellent chance of passage by the Legislature. In fact, to date, virtually all committee and floor votes on bills affecting most private sector employers have been essentially party-line votes. There is less certainty in predicting what bills passed by the Legislature will be signed by Governor Brown, and thus become law.
Under the Legislature’s 2013 calendar, a bill must be passed by its house of origin by May 31. The Legislature will take its summer recess from July 4 through August 4. The last day for any bill to be passed is September 13. The Governor must sign or veto by October 13 any bill passed by the Legislature on or before September 13 and in the Governor’s possession after September 13.
Following is a brief summary of significant bills¹ affecting private sector employers in California now pending in the Legislature, and their status in the legislative process.
AB 10 would raise the minimum wage, in steps, to $9.25 per hour by 2016, and provide the minimum wage could increase, but not decrease, as adjusted by the California Consumer Price Index. Pending in Assembly Appropriations.
AB 263, which would, among other things, add a new portion to the Labor Code prohibiting specified "unfair immigration-related practices," is pending before the Assembly Appropriations Committee. The bill would also increase civil penalties to as high as $10,000 per employee per violation for any retaliation against an employee. Pending in Assembly Appropriations.
AB 442 would expand the civil penalty and the payment of restitution of wages to the employee for a Labor Commissioner citation against an employer by also subjecting the employer to payment of liquidated damages to the employee. Passed Assembly; pending in Senate.
AB 729 would create an evidentiary privilege shielding communications between a union agent and a represented worker. Pending Assembly passage.
AB 880 would require a large employer (500 or more employees) to pay the Employment Development Department an employer responsibility penalty for each covered employee enrolled in Medi-Cal based on the average cost of coverage provided by large employers to their employees, including both the employer’s and employee’s share of the premiums; would assess interest of 10% per year on employer responsibility penalties not paid on or before the date payment is due; would require a large employer subject to an employer responsibility penalty to pay a penalty for any employer responsibility penalty payment that is more than 60 days overdue. This bill would also make it unlawful for a large employer to, among other things, designate an employee as an independent contractor or temporary employee, reduce an employee’s hours or work, or terminate an employee if the purpose is to avoid the imposition of the penalty. A violation of those provisions would result in a penalty of 200% of the penalty amount the employer would have paid for the applicable period of time. The bill would also prohibit a large employer from discharging or taking other action against an employee who enrolls in a public health benefit program or obtains advanced premium tax credits through the California Health Benefit Exchange and would make the willful refusal of the employer to rehire, promote, or otherwise restore the employee or former employee a misdemeanor. The bill would authorize an employee to file a complaint with the Division of Labor Standards Enforcement of the Department of Industrial Relations if the employee is discharged, threatened with discharge, demoted, suspended, or in any other manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee exercised his or her rights under these provisions. By establishing a new crime, this bill would impose a state-mandated local program. Pending in Assembly Appropriations.
AB 1082 would require an employer who employs 50 or more full-time equivalent employees to annually report to the Employment Development Department specified information relating to the average number of hours each employee worked per week in a calendar year and whether those employees were enrolled in minimum essential coverage under an eligible employer-sponsored health care plan. Pending in Assembly Appropriations.
AB 1385 would require the Department of Industrial Relations to procure a case management system that has the capability to provide the public with free, web-based access to a searchable database containing information regarding the final disposition of all complaints, citations, and administrative proceedings of the department. Pending in Assembly Labor and Employment.
AB 1387 would increase the car wash employer’s bond requirement amount from $15,000 to $150,000, but would exempt an employer from that requirement if the employer has a collective bargaining agreement in place that meets specified criteria, and would delete the existing sunset date for the statute governing car washes, thus extending those provisions indefinitely. Pending in Assembly Appropriations.
SB 168 would make a successor farm labor contractor liable for wages and penalties owed by a predecessor farm labor contractor. Pending Assembly passage.
SB 292 would clarify that no evidence of sexual desire is required for proof of a claim of sexual harassment. The intent of this bill is to negate what the bill’s author suggests is the outlier holding in Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, that a plaintiff in a same-sex harassment case must prove that the harasser harbored a sexual desire for the plaintiff in order to survive summary judgment. Pending Assembly passage.
SB 390 creates a criminal provision in the Labor Code allowing the Labor Commissioner to pursue a criminal misdemeanor prosecution against employers who do not remit payroll taxes. Pending Senate passage.
SB 400 would extend the protections available to persons in FEHA protected categories to victims of stalking; would also prohibit an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s known status as a victim of domestic violence, sexual assault, or stalking; would require the employer to provide reasonable accommodations for such a victim; would create a private right of action for an aggrieved employee to seek enforcement of those victim status protection and reasonable accommodation provisions; would permit the recovery of reasonable attorney’s fees by a prevailing employee only. Pending Senate passage.
SB 404 would add an additional protective status to the Fair Employment and Housing Act of "familial status," a concept that is very broadly defined in the bill. Pending in Senate Appropriations.
SB 435 would require employees of piece rate workers to pay those employees for any rest breaks mandated by law, and set the rate of pay for rest and recovery periods for piece rate workers. Passed the Senate; pending in the Assembly.
SB 462 would authorize the award of attorney's fees and costs in an action brought for the non-payment of wages, fringe benefits or health and welfare pension fund contributions, where the prevailing party is not the employee, contingent on a finding by the Court that the employee brought the court action in bad faith. Pending in Senate Appropriations.
SB 556 would expand employers’ liability for damages caused by an independent contractor or the independent contractor's employees, including wage and hour violations, penalties, fines and willful misconduct if the contractor or its employees were uniformed similar to that of the contracting entity, or drove a vehicle with the contracting entity’s logo. Pending in Senate Labor and Industrial Relations.
SB 607 (“Workplace Flexibility Act”) would have allowed individual employees to propose alternative work schedules to employers, such as 10 hours a day for four workdays a workweek, with the ninth and tenth hours being paid at the regular rate of pay, and overtime for any hours beyond ten hours in a day, or forty in a workweek. Failed passage on 3-1 vote in Senate Labor and Industrial Relations; reconsideration granted.
SB 648 would extend the same prohibitions on the smoking of tobacco products to electronic cigarettes. Pending in Senate Judiciary.
SB 655 purports to codify the California Supreme Court's decision in Harris v. City of Santa Monica (2013) 56 Cal.4th 203 on mixed motives in discrimination cases. Pending Senate passage.
SB 776 would modify existing law concerning permissible credits employers may take against the obligation to pay the general prevailing rate of per diem wages for prevailing wage payments, and would prohibit credit from being granted for employer payments made to monitor and enforce laws related to public works if those payments are not required by a collective bargaining agreement. Passed Senate; pending in Assembly.