California Mid-Year Legislative Update 2013

Audrey Gee. Brown Church & Gee. 925.291.4452. agee@bcglegal.com. 100 Pringle Ave., Suite 310 Walnut Creek, CA 94596. 925.943.5000. www.bcglegal.com

Presentation to the Employers’ Advisory Council – EDDJuly 16, 2013

SENATE ASSEMBLY

First Reading

Rules Committee/Fiscal Committeevote

Second & Third Readingsvote

First Reading

Rules Committee/Fiscal Committeevote

Second & Third Readingsvote

Repeat Process Repeat Process

GOVERNOR

Sign or allow without signature Veto

LAW LAW if approved by 2/3 vote of each house

Deadlines

2/22/2013

5/31/2013

Varies

9/13/2013

10/13/2013

Bills Proposed

• AB 10 – Minimum Wage: Annual Adjustment• SB 404 – Fair Employment – Familial Status• SB 292 – Fair Employment – Sexual Harassment • SB 400 – Employment – Discrimination Against Victims of Domestic Violence,

Sexual Assault, and Stalking• SB 770 – Unemployment compensation – Disability Benefits – Paid Family Leave• SB 462 – Employment Compensation – Attorneys’ Fees• AB 25 – Employment – Social Media • AB 155 – Employment – Payroll Records• AB 218 – Employment Applications – Criminal History• SB 390 – Employee Wage Withholdings – Failure to Remit• AB 442 – Employees - Wages• SB 713 – Liability: Good Faith Reliance on Administrative Ruling • AB 263 – Employment: Retaliation: Immigration-Related Practices • AB 729 – Evidentiary Privileges: Union Agent – Represented Worker Privilege• SB 554 – Employment: Overtime Compensation• AB 241 – Domestic Work Employees: Labor Standards• SB 168 – Farm Labor Contractors: Successors: Wages and Penalties

AB 10 Minimum Wage; Annual Adjustment• Amends Labor Code Section 1182.12 to increase the hourly

minimum wage. For the next five years, the hourly minimum wage will be increased to fixed amounts.

Amendments eliminate the proposed annual adjustments on a formula using the percentage of inflation occurring in the prior year.

AB 10 Minimum Wage; Annual Adjustment

Current minimum wage $8.00/hour (effective 2008)

- Opposed by Cal Chamber as job killer

- Join letter

Proposed by AB 10: January 1, 2014 increase to $8.25/hourJanuary 1, 2015 increase to $8.75/hourJanuary 1, 2016 increase to $9.25/hourJanuary 1, 2017 increase to $9.50/hourJanuary 1, 2018 increase to $10.00/hour

Compare to Federal Fair Minimum Wage Act of 2013 – if passed would raise federal minimum wage from $7.25 to $10.10/hr by 2015 and thereafter would annually adjust on cost of living.

SB 404 Fair Employment: Familial StatusThe FEHA protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment withoutdiscrimination or abridgment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation.

SB 404 includes “familial status” as an additional basis upon which the right to seek, obtain, and hold employment cannot be denied

SB 404 Fair Employment: Familial Status

• In connection with unlawful employment practices,

“familial status” means an individual who provides medical or supervisory care to a family member. “family member” means any of the following: a child, a parent, a spouse, a domestic partner, or parent-in-law.

SB 404 Fair Employment: Familial Status

• Revamp policies. • Consider familial status ifo Taking adverse action (discipline, demotion, changing work

hours or shifts, termination) o Choosing others for promotion, pay raises, projectso Granting leave, time off, flexible work schedules

Cal Chamber identifies SB 404 as a job killer. Join Letter. Broadly encompasses almost all employees in the workforce and hampers employers ability to manage their business Any adverse employment action could be challenged on the basis of familial status FEHA applies to

employers of 5+ employees

Tidal Wave of Claims? Increased Liability Exposure

SB 292 Employment: Sexual Harassment

SB 292 adds to the FEHA an expanded definition of sexual harassment In 2011, the California Court of Appeal (First District) in Kelley v. Conco Companies, (2011) 196 Cal.App.4th 191, held 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.

Apprentice ironworker. Complained that male supervisor made sexually demeaning, rude, crude taunting comments. Physical threats in retaliation for compliant. No evidence plaintiff was targeted based on his sex

SB 292 Employment: Sexual Harassment

The Kelley ruling created a split in authority as other courts (Singleton v. United States Gypsum – 2nd Dist. 2006) had found that sexual harassment does not require sexual desire.

SB 292 resolves the split in authority as it eliminates sexual desire as a factor to be considered in a sexual harassment lawsuit.

SB 292 Employment: Sexual Harassment

Under the currently existing law ““harassment” because of sex includes sexual harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions.”• SB 292 adds additional language specifying :

“sexually harassing conduct need not be motivated by sexual desire”

Investigate and actively respond to complaints about bosses or co-workers who are yellers, jokesters, rude & crass.

SB 400 Employment Protections: Victims of Domestic Violence, Sexual Assault, or StalkingExisting law prohibits employers from taking adverse employment action against victims of domestic violence and sexual assault who take time off from work to attend to issues arising as a result of the domestic violence or sexual assault, as long as the employee complies with certain conditions.

SB 400 extends time off protections to victims of stalking. • Employee must provide advance

notice of time off, if possible.

• If the employee does not provide advance notice, the employee may provide certification in the form of documents (police reports, court orders, etc.) to the employer to avoid adverse action.

• Employers must maintain the confidentiality of the employee-victim

SB 400 Employment Protections: Victims of Domestic Violence, Sexual Assault, or Stalking

Employer may not discharge, discriminate or retaliate against an employee because of the employee’s status as a victim of domestic violence, sexual assault or stalking

• Victim provides notice to employer of status

• Or employer has actual notice of status

SB 400 Employment Protections: Victims of Domestic Violence, Sexual Assault, or Stalking

Employers must make reasonable accommodations, if requested, for the employee’s safety at work

Reasonable accommodations include: implementation of safety measures, including a transfer, reassignment, modified schedule, changed work telephone, changed work station, installed lock, assistance in documenting domestic violence, sexual assault, or stalking that occurs in the workplace, an implemented safety procedure, or another adjustment to a job structure, workplace facility, or work requirement in response to domestic violence, sexual assault, or stalking, or referral to a victim assistance organization.

In determining whether the accommodation is reasonable, the employer shall consider an exigent circumstance or danger facing the employee.

The employer is not required to undertake an action that constitutes an undue hardship on the employer’s business operations

SB 400 Employment Protections: Victims of Domestic Violence, Sexual Assault, or Stalking

PENALTIES:

Employee is entitled to reinstatement and reimbursement for lost wages and benefits, along with equitable relief if an employer discharges, discriminates, or retaliates against employee-victims. This includes adverse action taken in response to a request for a reasonable accommodation.

An employer who willfully refuses to rehire, promote, or otherwise restore an employee or former employee who has been determined to be eligible for rehiring or promotion by a grievance procedure or hearing authorized by law is guilty of a misdemeanor.

Employee is entitled to attorney’s fees and costs if he or she prevails in a suit against his or her employer for failure to comply with the above law.

SB 770 - Unemployment compensation – Disability Benefits – Paid Family Leave

• Broadens the definition of family with the Paid Family Leave program to allow workers to receive the partial wage replacement benefits

• Expands California’s Paid Family Leave insurance program to include time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law

Previously covered only care for: parent, spouse, child domestic partner

SB 770 - Unemployment compensation – Disability Benefits – Paid Family Leave

Current law (CRFA & FMLA) permits eligible employees to take up to 12 weeks of leave in 12 months period for:

• Baby bonding• Caring for a family member with serious health condition (parent, spouse, child, registered domestic partner, same sex spouse); or

• Employee’s own serious health conditionPaid Family Leave Act provides up to 6 weeks wage replacement for:

• Baby bonding• Caring for a seriously ill family member

SB 770 - Expansion of “family member”CA has the 2nd highest percentage of multi-generational households

SB 462 Employment: Compensation (Attorneys Fees Awards)

Existing Labor Code Section 218.5 requires a court to award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action in any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions. • SB 462 awards attorneys fees to the employer

only on a finding that the employee brought the action in bad faith.

SB 462 Employment: Compensation (Attorneys Fees Awards)

• Provides essentially a one-sided attorney’s fee provision

• Bad faith is difficult to prove and will limit employer’s ability to recover fees

• Flood of claims?

• Incentivizes meritless wage and hour litigation

• No downside for employees to bring claims

Currently, for OT and min wage claimsif employee loses, employee does not have pay the employer’s attys fees. Bill 462 appliesto unpaid straight time wages, fringe benefits, Health and welfare, & pensions and conforms to the OT/min wage fee awards.

AB 25 Employment: Social Media

Extends existing social media standards to public employersAs used in this chapter, “public employer” means the state, a city, a county, a city and county, or a district. A publicly traded company is considered a private employer.

AB 25 Employment: Social Media

Existing law: Labor Code Section 980 prohibits a private employer from asking employees or applicants to:

o Disclose their user name of password for the purpose of accessing personal social media

o Access personal social media in the presence of the employer

o Divulge any personal social media

Section 980 also prohibits retaliation

AB 25 applies these laws to public employers

AB 25 Employment: Social Media

Exceptions:

• Employers retain the right to request that an employee disclose personal social media reasonably believed to be relevant to an investigation of allegations of employee misconduct or employee violation of applicable laws and regulations, provided that the social media is used solely for purposes of that investigation or a related proceeding.

• Employer can require or request an employee to disclose a username, password, or other method for the purpose of accessing an employer-issued electronic device

AB 155 – Employment – Payroll Records

• Provides that a current or former employee has a right to receive a copy of their payroll records.

• Employee may elect to inspect or copy payroll records, or to receive a copy of the records, or any combination

• Former employee terminated for workplace violence or harassment can only receive copies of records

• Employer can charge employee for the costs

SB 390 – Employee Wage Withholdings – Failure to Remit• Bill enables the Labor Commissioner to enforce a violation for

an employer who willfully, or with the intent to defraud, fails to remit to the proper agency any withholdings made from a worker’s wages pursuant to state or federal law.

• Written to address some employer’s practice of withholding the tax and social security taxes from the employee’s paycheck and pocketing those withholdings.

• Currently, there are no specific criminal penalties that specifically target this practice

AB 442 – Employees - Wages

• AB 442 authorizes the Labor Commissioner to collect liquidated damages from an employer who pays an employee less than minimum wage

• Currently, employees may obtain liquidated damages. This law would permit the Labor Commissioner to seek recovery of liquidated damages for workers in an amount equal to the total amount of their unpaid minimum wages.

• Has passed in the committee and the house of origin with 0 Noes.

SB 713 – Liability – Good Faith Reliance on Administrative RulingThis bill provides that any person who relies on a written order, ruling, approval, interpretation, or enforcement policy of a state agency or department, except the DLSE, is not liable or subject to punishment for a violation of a civil statute or regulation in a judicial or administrative proceeding if the person pleads and proves to the trier of fact, that at the time of the alleged act or omission, the person, acting in good faith did al of the following:

• Sought an applicable written order, ruling, approval, interpretation or enforcement policy from the state agency charged with interpreting that particular area of law;

• Provided true and correct information • Relied on and conformed with the order, ruling, approval,

interpretation or enforcement policy

SB 713 – Liability – Good Faith Reliance on Administrative Ruling

With respect to a written order, ruling, approval, interpretation, or enforcement policy of the DLSE, SB 713 provides that a person who takes all of the above acts, is not liable or subject to punishment, except for restitution of unpaid wages.

Cal Chamber supports as a job creatorCA has over 500 agencies that interpret and enforce its laws.

Currently, if employer seeks out guidance from agency and relies on a written determination, they are given no protection or benefit in litigation for such reliance

DLSE issues written opinion letters and enforcement manual but there is no current shield from liability if employers for compliance

AB 263 Employment: Retaliation. Immigration Related Practices Existing law provides all protections of the law are available to all individuals regardless of immigration status. A person’s immigration status is irrelevant to the issue of liability.

This bill adds that is unlawful to retaliate against an employee or applicant for availment of the laws, and authorizes civil penalties up to $10,000 for each violation.

Examples of misconduct: Labor Commissioner found employer owed immigrant worker $50,000 unpaid wages and employer harassed worker in his home and threated to report worker to immigration

AB 729 – Evidentiary Privileges. Union Agent – Represented Worker Privilege

AB 729 creates a privilege between a union agent, and a represented employee or former employee, to permit them to refuse to disclose any confidential communication between employee and the union agent

• There is currently no such privilege

• Permits a union representative to refuse to testify or produce documents that are communications with the employee

• Cal Chamber opposes as one-sided. Bill does not protect management communications

AB 218- Employment Applications – Criminal History

• Bill prohibits state or local agency from asking an employment applicant to disclose information concerning applicant’s conviction history until agency has determined the applicant meets minim employment qualifications

• Exempts employment positions where employer is required by law to conduct conviction history background check, criminal justice agency positions, and individuals working for a criminal justice agency on a contract

SB 554 Employment: Overtime Compensation for Employees of Residential Care Facilities

Existing law: Payment of overtime for work over:

- 8 hours/day or 40 hrs/week

(1 ½x hrly rate) - 12 hrs/day (2x hrly rate)

SB 554 establishes exemptions for employees working in non-medical residential care facilities, authorizes an overtime pay scale, and fixes the number of hours an employee is permitted to work without an off-duty period.

SB 554 Employment: Overtime Compensation for Employees of Residential Care Facilities

Employees of 24-hour non-medical out-of-home licensed residential facilities of 15 beds or fewer for the developmentally disabled, elderly, or mentally ill adults may be compensated as follows:

SB 554 Employment: Overtime Compensation for Employees of Residential Care Facilities

• An employee who works in excess of 40 hours in a workweek shall be compensated at one and one-half times the employee’s regular rate of pay for all hours over 40 hours in the workweek.

• An employee shall be compensated at two times the employee’s regular rate of pay for all hours in excess of 48 hours in the workweek.

• An employee shall be compensated at two times the employee’s regular rate of pay for all hours in excess of 16 in a workday.

• An employee may not work more than 24 consecutive hours until the employee receives not less than eight consecutive hours off-duty immediately following the 24 consecutive hours of work. Time spent sleeping shall not be included as hours worked.

Violation of these rules is a misdemeanor.

Eliminates daily OT for work over 8 hrsOT – 1 ½ hrly rate for over 40hrs/wkDT – 2x hrly rate for over 48

hrs/wk or 16hr/day24hrs on duty then 8hrs off duty (non-sleeping)

AB 241 Domestic Work Employees: Labor Standards (Domestic Workers Bill of Rights)

Gives domestic workers overtime pay, meal and rest breaks, equal worker’s compensation protection. Provides live-in domestic workers uninterrupted sleep rights and rights to use kitchen facilities to prepare own food.

Domestic work – care of persons in private households including childcare providers, caregivers for of disabled or elderly, house cleaners, and other household occupations.

• Last year, a similar bill, AB 889 was passed in both houses was vetoed by the Governor.

• Currently, personal attendants are exempt from overtime, meal and rest break and other wage and hour requirements.

SB 168 – Farm Labor Contractors. Successors. Wages and PenaltiesEstablishes successor liability for farm laborer contractors (FLC). If any successor to any predecessor FLC that owed wages or penalties is liable for those wages and penalties if the successor meets one or more of the following:

FLC uses substantially the same facilities or workforce to offer substantially the same services as the predecessor FLC

Shares ownership, management, control of workforce, interrelations of business operations with predecessor FLC

Employs in a managerial capacity any person who directly or indirectly controlled wages, hours, or working conditions of the predecessor FLC

Is an immediate family member of any owner, partner, officer, licensee or director of the predecessor FLC or any person who had a financial interest in the FLC

Non-Viable Bills

SB 607. (Berryhill R- Twain Harte). California Workplace Flexibility Act of 2013. Current law requires overtime be paid for any work over 8 or over 40 hours in a week, unless 2/3rds of the workers in a unit adopt an alternative schedule of workdays lasting up to 10 hours. Bill permits non-union employees to request a flexible work schedule of up to 10 hours in a day, no more than 40/week before being paid overtime. Lowers costs for employers and provides more flexibility in the workplace. Supported by the Society for Human Resources Management. Labeled by the Cal Chamber as a Job Creator. Failed in Committee 4/24/13 (Ayes 1, Noes 3).

AB 907. (Conway – R-Tulare). Allows employee to voluntarily request a flexible work schedule with an opportunity to work 4/10 hour workdays without employee incurring overtime. Supported by Cal Chamber as a job creator. Failed in house of origin.

Non-Viable Bills

AB 880 – (Gomez; D-Los Angeles). Expansion of Discrimination Litigation with New Health Care Coverage Penalties. - Discourages hiring of entry or re-entry workers, increases discrimination litigation by taking large employers with a penalty if any of their employee who work as little as 12 hours per week enroll in CA’s Medi-Cal program and expands labor code to include a protected classification for any person who is enrolled in Medi-Cal program of the CA Health Benefit Exchange. Failed to pass Assembly 6/27/13.

AB 1138 – (Chau; D-Alhambra). Amends Section 1871 of Insurance Code. Massive Exposure to Civil Penalties and Liability. Increases civil penalties on employers by permitting civil action against those employers who fail to conspicuously post a list of every employee covered under the an employer’s workers’ compensation insurance policy and retain this list for five years. Missed deadline to pass from policy committee to fiscal committee in the house in which it was introduced.

Non-Viable BillsSB 626 (Beall; D-San Jose). Amends Workers Compensation laws (Sections 75, 4600, 4605.5, 4610, 4610.6, 4616, 4660.1). Massive Workers’ Compensation Cost Increase. Unravels many of the employer cost-saving provision in last year’s workers’ compensation reform package and results in employers paying nearly $1billion in benefit increases to injured workers without an expectation that the increases will be fully offset by system savings. Missed deadline to pass from policy committee to fiscal committee in the house in which it was introduced.

SB 761. (DeSaulnier D-Concord). Expansion of Paid Family Leave Program.. Transforms the paid family leave program from a wage replacement program into a new protected leave of absence that will burden small and large businesses by allowing an employee to file litigation for any alleged retaliation or discrimination as a result of their intent, request or use of the paid family leave program. Refused passage in the Senate, 5/29/13. Reconsideration granted. Placed on Senate inactive file, 5/30/13. Missed house of origin deadline.

Thank you for attendingCalifornia Mid-Year Legislative Update 2013

Audrey Gee. Brown Church & Gee. 925.291.4452. agee@bcglegal.com100 Pringle Ave., Suite 310 Walnut Creek, CA 94596. 925.943.5000. www.bcglegal.com

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