As the legislative session came to a close at midnight on September 1, 2010, California did not have a budget but the legislature was able to send a few bills through to the governor. Governor Schwarzenegger will be leaving office this year to be replaced by either former Governor Jerry Brown or former CEO Meg Whitman depending on the mood of the electorate.
California appears to have a budget, and by golly, if you want paid time off to make an organ or bone marrow donation or are a unionized employer looking for meal period relief, this is the place to be. The new laws effective January of 2011 and the significant legislation vetoed are described below:
Employment Legislation Effective January 1, 2011
AB 569. Having vetoed the incremental approach to addressing the meal period issue in prior years, the Governor apparently concluded some relief was better than none and signed this version. It applies only to employers and employees in specific occupations and industries who are signatory to a valid collective bargaining agreement which expressly provides for the wages, hours of work, working conditions of employees, meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate. Assuming the union contract qualified, the exception applies to:
1) An employee employed in a construction occupation;
2) An employee employed as a commercial driver;
3) An employee employed in the security services industry as a security officer who is registered pursuant to Chapter 11.5 (commencing with Section 7580) of Division 3 of the Business and Professions Code, and who is employed by a private patrol operator registered pursuant to that chapter; or
4) An employee employed by an electrical corporation, a gas corporation, or a local publicly owned electric utility.
AB 2774. Under pressure from labor and OSHA to conform with the federal definition of a “serious violation,” the Legislature passed and the governor signed AB 2774. It establishes as a rebuttable presumption that a violation is serious if the division can demonstrate a “realistic possibility” that death or serious physical harm could result from the violation. The existing threshold is “substantial probability” which the California Occupational Safety & Health Appeals Board has interpreted to mean “more likely than not.” It remains to be seen how OSHAB will interpret “realistic possibility,” though AB 2774 clarifies that it must result from the actual hazard created by the violation and that the demonstration of a violation is not sufficient to establish that the violation is serious. Further, “serious physical harm” is defined as an injury or illness that results in one of the following:
1) Inpatient hospitalization for purposes other than medical observation.
2) The loss of any member of the body.
3) Any serious degree of permanent disfigurement.
4) Impairment sufficient to cause a part of the body or the function of an organ to become permanently and significantly reduced in efficiency on or off the job…”
The stakeholders negotiating the definition of a serious violation, also used AB 2774 as a vehicle for process improvement. Before issuing a citation with alleged violations classified as serious, the Division of Occupational Safety & Health must make a reasonable attempt to assess the employer’s affirmative defenses which include specified measures to prevent the hazard. In effect, the division will provide the employer with “alleged violation descriptions” and give the employer an opportunity to explain why a serious violation does not exist.
To facilitate division testimony at hearing, engineers and industrial hygienists shall be deemed competent to offer testimony to establish each element of a serious violation if, at the time of hearing, their divisionmandated training is current. They need not qualify as expert witnesses to offer evidence on the custom and practice of injury and illness prevention as it relates to the alleged violation.
SB 1304. Adds Labor Code Sections 1508-1512; requiring private employers with 15 or more employees to grant up to 30 days paid leave within a one year period for employee organ donors and 5 days paid leave within a one year period for employees who donate bone marrow. This leave is designed to be in addition leaves granted by the Family Medical Leave Act and the California Family Rights Act.
Any period of time during which an employee is required to be absent from his or her position by reason of being an organ or bone marrow donor is not a break in his or her continuous service for the purpose of his or her right to salary adjustments, sick leave, vacation, annual leave, or seniority. Although perhaps preempted, the new legislation provides that the employer shall maintain and pay for coverage under its group health plan for the full duration of the leave. If the employee had accrued but unused vacation or other leave the employer can charge the five days of bone marrow transplant leave and up to two weeks of sick or vacation for organ transplant leave. By inference, if the employee exhausts all paid leave before providing notice of this leave it must all be employer paid time-off.
Consistent with California tradition, there is a private right of action and a collective bargaining exception provided that the union contract includes more generous terms. Plainly, even California employees have a finite number of spare organs to offer for transplant but the statute does not define the term “organ” and a court or creative plaintiff could resort to some definitions that do include skin as an organ.
Bills Passed by the Legislature but Vetoed by Governor Schwarzenegger
As this is an election year, there is some value in keeping track of the measures the legislature passed and which would have become law absent the exercise of the veto power. The bills in this category are:
AB 482. Would have created Labor Code Section 1024.5; declaring that an employer shall not use a consumer credit report for employment purposes unless “the information contained in the report is substantially jobrelated, meaning that the position of the person on whom the report is sought has access to money, other assets, trade secrets, or other confidential information.” This is the third year in a row it has been vetoed.
AB 677. Would have revised the definition of “public works” for prevailing wage purposes to include construction, alteration, demolition, installation, and repair work done under private contract when specified conditions are met; including the requirement that the work is either a) performed in connection with the construction or maintenance of renewable energy generation capacity, b) located on property wholly or partially owned by a school district or community college district, or c) on public property deemed to serve a school district or community college district.
AB 1881. Would have changed the liquidated damages imposed for failure to pay minimum wages when due from one times the underpaid amount, to two times the underpaid amount. Thus, if an employer underpaid the minimum wages by $1,000 the liquidated damage amount assessed would have increased an additional $2,000 had this been enacted.
AB 2032. Would have added Labor Code Section 1308.10; adjusting the existing requirement for a permit from the Labor Commissioner for all minors employed in the entertainment industry, and authorizing the Commissioner to impose a permit fee up to $50.
AB 2187. Would have added Labor Code Section 1199.6; imposing criminal penalties and civil restitution obligations for an employer who failed to pay wages due within 90 days of resignation or termination.
AB 2340. Would have added Labor Code Section 230.5; prohibiting employers from discharging, disciplining, or discriminating against employees inquiring about, requesting, or taking up to three days of bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.
AB 2468. Would have added Labor Code Section 1034 as follows:
(a) An employer may use the designation “Breast-Feeding Mother-Friendly Workplace” on its promotional materials if the employer submits its workplace breast-feeding policy to the Labor Commissioner and the Commissioner determines that the policy provides for all of the following:
- Flexible work scheduling, including scheduling breaks and permitting work patterns that provide time for expression of breast milk;
- A convenient, sanitary, safe, and private location, other than a toilet stall, allowing privacy for breast-feeding or expressing breast milk;
- A convenient, clean, and safe water source with facilities for washing hands and rinsing breast-pumping equipment located in or near the private location specified in paragraph (2); and
- A convenient hygienic refrigerator in the workplace for the temporary storage of breast milk.
(b) The Labor Commissioner shall maintain a list of employers who are eligible to use the ¡§Breast-Feeding Mother-Friendly Workplace¡¨ designation and shall publish that list on the Department¡¦s website.
SB 903. Would have added Labor Code Section 200.5; extending the statute of limitations for the Department of Labor Standards Enforcement to bring an action to collect a penalty or fee from one year, to three years.
SB 1230. Would have added Labor Code 2696 as follows:
(a) An employer shall, as soon as practicable, prepare and post in a conspicuous location frequented by employees a notice in substantially the following form:
Victims of slavery and human trafficking are protected under United States and California law. If you or someone you know is being forced to engage in any activity and cannot leave ¡V whether it is commercial sex, housework, farm work, or any other activity ¡V call the numbers below to access help and services: Call the National Human Trafficking Resource Center at 1-888-373-7888 or the California Coalition to Abolish Slavery and Trafficking (CAST) at 1-888-KEY-2-FRE(EDOM) or 1-888-539-2373. The tollfree hotlines are:
- Available 24 hours a day, 7 days a week.
- Operated by nonprofit, nongovernmental organizations.
- Anonymous and confidential.
- Accessible in more than 160 languages.
- Able to provide help, referral to services, training, and general information.
(b) The Labor Commissioner shall determine in what languages the notice required by subdivision (a) shall be provided and shall make the notice available the on the Department of Industrial Relations¡¦ website or by any other means the Labor Commissioner deems appropriate. The Labor Commissioner is not otherwise required to produce or distribute the notice.
SB 1370 vetoed. Would have amended Labor Code 2751 to require that all employees paid on a commissioned basis be engaged pursuant to a written contract.