As Californians get back to business in the new year, we wanted to highlight the following changes to California employment laws for 2015:
- Mandatory Paid Sick Leave
- Protections Against Discrimination and Harassment for Unpaid Interns and Volunteers
- Protection Against Discrimination for Undocumented Persons With Drivers Licenses
- Employees Receiving Public Assistance Receive Protection Under the California Government Code
- Unfair Immigration-Related Practices Expanded to Include Threatening to File or Filing a False Report or Complaint With Any State or Federal Agency
- Prevention of Abusive Conduct Added as a Component of Sexual Harassment Training
- Increased Liability for Employers That Use Labor Contractors
- Expanded Statute of Limitations for Liquidated Damages on Minimum Wage Claims
- Increased Remedies for Child Labor Law Violations
- Waiting Time Penalties: Additional Penalties and New Avenues to Enforce Existing Penalties
- Time Off for Emergency Rescue Personnel Performing Emergency Duty
- Background Checks for Minors: Written Notice to the Parent or Guardian Required
- Ability to Email Workplace Safety Reports
- Limiting Ability of OSHA to Modify Civil Penalties for Abatement of Workplace Safety Violations
- Clarifying Waiting Periods for Healthcare Coverage
- Contractors Bidding on Public Contracts May Not Ask Applicants for Criminal History Information
- Prevailing Wage Laws
Mandatory Paid Sick Leave
Though employees are not entitled to take the paid sick leave provided under Assembly Bill 1522 – the Healthy Workplaces, Healthy Families Act of 2014 (“the Act”) – until July 1, 2015, employers should take steps now to be prepared to comply by providing paid sick leave to employees who have worked in California for 30 or more days within one year from the commencement of employment, with certain exceptions noted below. Under the Act, the qualifying period that determines which employees are eligible for paid sick leave is counted starting on January 1, 2015, and employers must immediately start using the new version of the employee notice required by Labor Code 2810.5 (aka the “Wage Theft Prevention Act Notice”). Also, employers must immediately display the poster published by the California Division of Labor Standards Enforcement where it can easily be seen by employees. Employers should also work with their paycheck providers or update their own pay stub templates in order to reflect how many days of sick leave an employee has available. If this information is not provided on a pay stub, it must be provided on a separate document that is issued the same day as a paycheck.
Amount of Sick Leave Required
The Act permits employers to limit the use of paid sick days to 24 hours or three days in each year of employment; however, employers must allow accrued unused days to carry over to the next year. Employers may limit accrual of paid sick days to 48 hours or six days. There is no accrual or carryover required if the full amount of leave is granted at the beginning of each calendar year.
The Act does not require employers to treat sick pay like California treats vested vacation. Employers are not required to pay employees for accrued, unpaid sick days upon termination. However, an employer must reinstate unused sick days for an employee who is rehired within one year of termination.
Qualifying Reasons for Use
Upon an employee’s written or oral request, employers must provide paid sick days for (1) the employee or employee’s family member’s diagnosis, care (including preventive care), or treatment of an existing serious health condition; and (2) an employee who is a victim of domestic violence, sexual assault, or stalking. The Act defines “family member” as a child, parent, spouse, registered domestic partner, grandparent, or sibling.
The Act does not require an employer to provide additional paid sick days if (1) the employer has an existing paid leave or paid time off policy; (2) the employer makes the paid leave available under the same conditions as stated in the new law; and (3) the existing policy either (a) satisfies the accrual carryover and use requirements, or (b) provides for at least 24 hours or three days of paid sick leave per 12 months of employment or calendar year. However, an employer with adequate preexisting policies must still comply with the Act’s other obligations, such as notice, posting, and recordkeeping requirements.
The Act does not apply to employees whose employment is governed by a valid collective bargaining agreement that provides for the payment of wages, hours of work, working conditions, premium overtime, regular hourly rate of pay not less than 30 percent greater than the state minimum wage, paid sick or similar leave, and final and binding arbitration of disputes regarding the paid sick days provision.
Also exempt are construction employees covered by collective bargaining agreements with specified provisions, in-home supportive service providers, and certain air carrier and flight personnel.
No Adverse Action
The Act prohibits employers from denying employees the right to use accrued sick days, and from discriminating or retaliating against an employee who uses or attempts to use paid sick days, who files a complaint with the Labor Commissioner, who alleges a violation of the Act, who participates in an investigation under the Act, or who opposes any policy or practice prohibited by the Act. In addition, the Act creates a rebuttable presumption of unlawful retaliation if an employer takes adverse action (including denying the use of sick days) against an employee within 30 days of the employee filing a complaint, cooperating in an investigation, or opposing a practice prohibited by the Act.
Protections Against Discrimination and Harassment for Unpaid Interns and Volunteers
Assembly Bill 1443 amends the California Fair Employment and Housing Act (“FEHA”) to extend its protections to unpaid interns. Employers are now prohibited from discrimination based on protected characteristics in the “selection, termination, training or other terms or treatment” of a person in “an unpaid internship, or another limited duration program to provide unpaid work experience.” The new law also prohibits harassment of unpaid interns based on protected characteristics, and makes employers liable for sexual harassment of unpaid interns by non-employees if an employer knew or should have known of the conduct, but failed to promptly take appropriate corrective action.
In addition, employers may not take adverse actions against unpaid interns based on their religious beliefs and must provide reasonable accommodations for religious observance unless doing so would pose an undue hardship.
Protection Against Discrimination for Undocumented Persons With Driver’s Licenses
Assembly Bill 1660 makes it a violation of the FEHA for an employer to discriminate against an individual because he or she holds a special driver’s license, issued under the Vehicle Code for persons who are unable to submit satisfactory proof that their presence in the U.S. is authorized under federal law, but who can provide satisfactory proof of identity and California residency and meet other requirements for licensure.
This new law also prohibits an employer from requiring a person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer and the employer’s requirement is otherwise permitted by law. The new law states that “nothing in this section shall be construed to limit or expand an employer’s authority to require a person to possess a driver’s license.”
In addition, the bill amends the FEHA to specify that discrimination on the basis of national origin includes discrimination on the basis of possessing a driver’s license granted under these provisions. However, an action taken by an employer to comply with any requirement or prohibition under the federal Immigration and Nationality Act is permissible under the law.
The bill also exempts from disclosure under the California Public Records Act driver’s license information obtained by an employer.
Employees Receiving Public Assistance Receive Protection Under the California Government Code
Assembly Bill 1792 prohibits an employer from disclosing to any person or entity the fact that an employee receives or is applying for public benefits, unless authorized to do so by state or federal law. It also prohibits employers from discharging or in any manner discriminating or retaliating against an employee who enrolls in the Medi-Cal program, and from refusing to hire a beneficiary for reason of being enrolled in the Medi-Cal program.
Unfair Immigration-Related Practices Expanded to Include Threatening to File or Filing a False Report or Complaint With Any State or Federal Agency
Assembly Bill 2751 clarifies existing law related to unfair immigration-related practices. This new law:
- Specifies that the $10,000 civil penalty provided under Labor Code section 98.6 for retaliation is to be awarded to the employee or employees who suffered the violation.
- Adds threatening to file or filing a false report or complaint with any state or federal agency to the definition of an “unfair immigration-related practice.”
- Expands the prohibition against an employer discharging, discriminating, retaliating, or taking any adverse action against an employee “because the employee updates or attempts to update his or her personal information based on a lawful change of name, Social Security number, or federal employment authorization document,” by no longer permitting the employer to take adverse action if the employee’s personal information changes are directly related to the skill set, qualifications, or knowledge required for the job.
Prevention of Abusive Conduct Added as a Component of Sexual Harassment Training
Under Assembly Bill 2053, mandatory sexual harassment training and education for supervisory employees must now include prevention of “abusive conduct,” defined as “conduct with malice that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” Abusive conduct may include “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” The law specifies that a single act will not constitute abusive conduct unless it is “especially severe and egregious.”
Increased Liability for Employers That Use Labor Contractors
Assembly Bill 1897 adds Section 2810.3 to the Labor Code, and imposes liability on companies that contract for labor, including those that use staffing agencies. If a company utilizes a labor contractor, this new law allows for the company to be held liable for the labor contractor’s failure to properly pay wages to, or failure to secure workers’ compensation coverage for, the workers provided by the labor contractor. The law applies (1) to companies that have 25 or more workers, including direct employees and workers provided by labor contractors; and (2) if the company was provided, at any given time, at least six workers to perform labor within the usual course of business from one labor contractor or various labor contractors.
A company can, however, be indemnified by the labor contractor if the parties’ contract includes such a provision.
Expanded Statute of Limitations for Liquidated Damages on Minimum Wage Claims
Recently, some courts in California had held that a lawsuit seeking liquidated damages for minimum wage violations were subject to a one-year statute of limitations. Assembly Bill 2074 was introduced in response to these decisions and clarifies that a lawsuit seeking such damages can be filed at any time before the expiration of the statute of limitations applicable to the underlying wage claim. This means that the statute of limitations can often be three to four years.
Increased Remedies for Child Labor Law Violations
Under Assembly Bill 2288, the Child Labor Protection Act of 2014, additional penalties may be sought for violations of California labor laws concerning the employment of minors. Assembly Bill 2288 adds Section 1311.5 to the Labor Code, and provides:
- Treble damages to an individual who was discriminated against in the terms or conditions of employment because he or she filed a claim or civil action for violation of employment laws that arose while the individual was a minor;
- Civil penalties of $25,000 to $50,000 for Class A violations, as defined in Labor Code Section 1288(a), that involve minors 12 year of age or younger;
- The statute of limitations for claims that arise from violations of employment laws is tolled (suspended) until a minor is 18 years of age.
Waiting Time Penalties: Additional Penalties and New Avenues to Enforce Existing Penalties
Under existing law (Labor Code Section 1197.1), if an employer pays less than the minimum wage, the California Labor Commissioner may issue a citation that includes a civil penalty, liquidated damages, and restitution.
Now, pursuant to Assembly Bill 1723, the Labor Commissioner can include waiting time penalties in the citation or, in other words, penalties for failure to timely pay wages to an employee who resigned or was terminated, as stated in Labor Code Section 203. These penalties can amount to the equivalent of 30 days of pay.
Time Off for Emergency Rescue Personnel Performing Emergency Duty
Existing law prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to perform emergency duty as volunteer firefighters, reserve peace officers, or emergency rescue personnel. Assembly Bill 2536 amends the Labor Code by expanding the definition of “emergency rescue personnel” to now include an officer, employee, or member of a disaster medical response team sponsored by the state. The new law also requires employees who are healthcare providers to notify their employer at the time they become designated as emergency rescue personnel, and when they are notified that they will be deployed.
Background Checks for Minors: Written Notice to the Parent or Guardian Required
Assembly Bill 1852 requires a business that provides services to minors to provide a written notice to the parent or guardian of the minor receiving those services which sets forth the business’ policies relating to employee criminal background checks. If criminal background checks are performed, the notice must state whether the checks include state and federal criminal history information and the nature of the offenses the business looks to identify. The written notice may include a posting on the business’ website.
The law defines a “business that provides services to minors” as one that (1) has a primary purpose of providing an extracurricular service or program of instruction, including academic tutors for minors; and (2) has adult employees with supervisory or disciplinary power over a child or children. The law does not apply to specified licensed child day care facilities or centers, and medical facilities or hospitals.
Ability to Email Workplace Safety Reports
Previously, Labor Code Section 6409.1 required employers to immediately file reports of work-related serious injury, illness, or death to the Division of Occupational Safety and Health by telephone or telegraph. Assembly Bill 326 removes the term “telegraph” and replaces it with “email,” allowing employers to email reports of work-related serious injury, illness, or death.
Limiting Ability of OSHA to Modify Civil Penalties for Abatement of Workplace Safety Violations
With regard to serious safety violations, Assembly Bill 1634 permits the California Division of Occupational Safety and Health to modify civil penalties for abatement or grant an employer credit for abatement only if the employer (1) has abated the violation at the time of initial inspection; (2) has abated the violation at the time of a subsequent inspection prior to issuance of a citation; or (3) has submitted a signed statement under penalty of perjury with supporting evidence within 10 working days after the end of the abatement period.
Whenever a serious violation is not abated at the time of the initial or subsequent inspection, the division will require the employer to submit a signed statement under penalty of perjury, with supporting evidence where necessary, to prove abatement that the employer has complied with the abatement terms within the abatement period.
The filing of a petition for, or the pendency of, reconsideration of a final order or decision involving a citation classified as serious, repeat serious, or willful serious will not stay or suspend the abatement requirements unless the employer demonstrates by a preponderance of the evidence that a stay or suspension of abatement will not adversely affect the health and safety of employees.
Clarifying Waiting Periods for Healthcare Coverage
Senate Bill 1034 repealed an insurance law (Assembly Bill 1083) that prohibited insurance companies from including waiting periods in excess of 60 days in their group health insurance contracts. Under the new law, California insurance companies are prohibited from applying any “waiting or affiliation period” under a group or individual health benefit plan. Because this new law applies to carriers and not to employers, California employers that are permitted under federal law (the ACA) to have a one-month orientation period and up to a 90-day waiting period are permitted to continue applying these ACA-compliant periods.
Contractors Bidding on Public Contracts May Not Ask Applicants for Criminal History Information
Assembly Bill 1650 requires contractors that bid on state contracts involving on-site construction-related services to certify that they will not ask applicants for on-site construction-related jobs to disclose information concerning criminal history at the time of an initial employment application. The law does not apply if the position requires a criminal background check under state or federal law, nor does it apply to workers obtained through a union hiring hall pursuant to a collective bargaining agreement.
Prevailing Wage Laws
Employers providing services or construction work on public works projects for public entities and/or the government must pay prevailing wages. Typically, prevailing wages are substantially greater than the minimum wage. Several new laws related to prevailing wages were passed in 2014, including:
- Senate Bill 266: the awarding body of a public works project must furnish documentation regarding a notice of completion within 10 days after receipt of a written request from the Labor Commissioner.
- Assembly Bill 26: redefines the term “construction” in public works projects to include work performed during the post-construction phases of construction, including any cleanup work at the jobsite.
- Assembly Bill 1939: provides that a contractor may bring an action against “hiring parties” to recover increased costs (including labor costs, penalties, and legal fees) incurred because of the untimely designation of a contract as a public works project.
- Assembly Bill 2272: revises the definition of “public works” to include infrastructure project grants from the California Advanced Services Fund.
- Assembly Bill 2744: allows enforcement mechanisms that previously could be used against contractors or subcontractors on public works projects to now also be used for violations regarding the employment of apprentices on such projects.