Since our last annual California Legislative Update in October 2013, California has enacted a number of new employment laws that have implications for companies with California employees. Employers should carefully review these laws in order to bring their policies into compliance. The following is a brief overview of the recent California employment-related legislation.
Sexual Harassment Definition Expanded, SB 292
SB 292 tracks a 2011 California appellate court’s hostile work environment ruling, which held that an employee in a sexual harassment suit does not need to prove that the harasser had sexual desire for him or her. As a result, SB 292 alters the definition of sexual harassment, stating that hostile treatment can amount to unlawful sexual harassment regardless of whether the treatment was motivated by any sexual desire.
Income Covering Federal Tax on Same-Sex Spouse Insurance Exempted, AB 362
While federal and California state law exclude employer-provided health insurance from gross income, federal law only allows the exclusion for insurance provided to opposite-sex spouses of employees. In response, a number of employers now provide a salary increase to employees in same-sex marriages in order to offset the federal income tax on same-sex spouse benefits. AB 362 excludes these incremental salary increases meant to offset higher federal income tax liabilities from state income tax. According to the sponsor of the bill, Assemblyman Phil Ting, same-sex couples pay an average of $1,070 more in taxes than opposite-sex couples. This state exclusion is meant to promote fairness and equality by making up for the higher federal tax liabilities that same-sex couples pay.
Definition of Emergency Rescue Personnel Expanded, AB 263
Employees designated as “reserve peace officers and emergency rescue personnel” (Firefighters) are permitted to take up to 14 days off from work to take classes to update their emergency training per calendar year. AB 263 expands the definition of reserve peace officers and emergency rescue personnel to include additional employees who require “emergency rescue training” in addition to the existing allowances for fire or law enforcement training (such as EMTs). This law applies to public and private employers with 50 or more employees, with an exception for employers who provide emergency services if the absence of the employee would hinder the availability of public safety or emergency medical services to the public.
AB 263, SB 666, and SB 496 make it illegal for an employer to retaliate against an employee for exercising his state law rights protected by whistleblower provisions (for example, complaining about working conditions or sexual harassment, or reporting a violation of law by an employer). The laws strengthen protections for employees in cases arising from whistleblower actions by expanding whistleblower protections to include reports alleging a violation of a local law or regulation (in addition to violations of state or federal law). The laws also prohibit retaliation against an employee when an employer “believes the employee disclosed or may disclose information” (emphasis added).
Under AB 263, SB 666, and SB 496, it is illegal for an employer to report or threaten to report a worker’s immigration status, or the status of his or her family members, in response to the worker exercising his or her rights under whistleblower laws (namely, reporting violations of law by an employer), the labor code, or any other local ordinance applicable to employees. Further, an employer cannot take any adverse action against an employee for “updating” personal information unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
Under this provision, an employer cannot take any action against an employee who updates his personal information in a way that implicates the employee’s immigration status (although there is some question as to whether or not federal immigration law would preempt this policy). A civil penalty of up to $10,000 per employee for each violation will be assessed for violating any of the foregoing.
Workplace Retaliation Law Clarified, AB 2751
AB 2751 clarifies the retaliation, penalty, and employee information provisions of AB 263, SB 666, and SB 496. First, the new law narrows a provision of the original law which protected employees from discrimination or retaliation if they update their personal information. By limiting the scope of the protection to information applying to work authorization, the law removes protection for employees who correct misrepresentations relating to education or criminal history. Second, AB 2751 clarifies that the $10,000 penalty per employee for each violation is awarded to the employee or employees who faced the illegal retaliation. Last, the law defines “unfair immigration- related practice” as threatening to file or filing a false report or complaint with a state or federal agency.
Reasonable Accommodations and Time Off for Victims, SB 400
SB 400 prohibits employers from firing, discriminating, or retaliating against employees because of their status as victims of domestic violence, sexual assault, or stalking. Employers are required to make reasonable accommodations for these workers. The statute does not state what those reasonable accommodations should be, but suggests that they might include the implementation of safety measures at the workplace. In addition, stalking victims must be provided with time off to appear at legal proceedings and to seek medical or psychological treatment, including safety planning. Employers must also allow victims of crime (in general) to take time off from work to appear in any court proceeding in which their rights are at issue so long as the employee complies with the requirements for requesting the leave. The law, however, only applies to specific crimes (i.e., vehicular manslaughter; felony child abuse likely to produce great bodily harm or death; assault resulting in the death of a child under 8; felony domestic violence; felony physical abuse of an elder or dependent adult; felony stalking; solicitation for murder; a serious felony, such as kidnapping, rape, or assault; hit and run causing injury or death; and felony driving under the influence, causing injury).
Successor Agricultural Employers Liable for Predecessor’s Liabilities, SB 168
SB 168 applies to successors of farm labor contractors. Under the law, a successor of a farm labor contractor is liable for the predecessor’s owed wages or penalties to former employees.
Ability of Employer to Recover Attorneys’ Fees Limited, SB 462
SB 462 permits a prevailing employer to recover attorneys’ fees and costs only if the court finds the employee’s claim was brought in bad faith. Prior to the enactment of SB 462, courts could, upon request, award attorneys’ fees and costs to the prevailing party (employer or employee) in any action for nonpayment
of wages, fringe benefits, or health and welfare pension fund contributions.
Veterans Protected Under FEHA, AB 556
AB 556 adds military and veteran status to the list of categories protected from discrimination under California’s Fair Employment and Housing Act (FEHA). This category includes members or veterans of the United States Armed Forces, the United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
San Francisco Law Limits Use of Criminal Background Checks, S.F. Police Code, Art. 49
Under a San Francisco ordinance signed on February 17, 2014, employer and contractor use of criminal background checks to vet employees will be limited. The Fair Chance Ordinance forbids employers from asking about an applicant’s criminal history. It also forbids conducting a background check until the employer determines that the individual is qualified for the position. Conviction history may only be obtained after the first live interview with a candidate, and applications cannot ask about any dismissed, exonerated, or juvenile convictions.