for those still doing business in...

For Those Still Doing Business in California

An Update of New California Employment Laws for 2015

October 7, 2014

Christopher E. Cobey Knowledge Management

Counsel San Jose Office

[email protected]

p r e s e n t e d b y

Goals and disclaimers

• Goals • Subjective judgments in choice

of new laws to mention • Can’t be completely

comprehensive with only an hour • Questions answered as possible

The setting for the product

• Overwhelmingly Democratic legislature with strong labor influence

• The Democratic Governor and what he vetoed (13.6%)

• A non-Presidential general election year – The Governor – The Legislature – Congressional seats

The setting for the product

• The non-employment laws: – Water – Single-use plastic bags – Campus sexual consent

policies – Nitrous oxide – Drones, and … – the Official State Amphibian!

• What about Congress?

The Biggest One: paid sick leave

The Healthy Workplaces, Healthy Families Act of 2014 (AB 1522)

• The history of prior attempts

• The proponents claim that the new law applies to more than six million California workers – 40% of all California employees

• Covered employees


• Applies to all California employers, regardless of size, with four limited exceptions – Exceptions:

• Employees covered by a CBA that provides PSL and has other provisions

• Employees in construction industry covered by CBA

• Employees in home health care field* • Certain air carrier flight deck or cabin crew

members


• What’s earned: one hour of PSL for every 30 hours worked, including overtime hours – Includes exempt administrative, executive and

professional employees

• Who decides when and how it’s used? – “An employee may determine how much paid

sick leave he or she needs to use,….” Labor Code §245(j).


• Permitted uses of PSL

• Cash-out?

• Use of existing sick leave banks

• Employee notice and documentation – Amount of advance notice required

– Can documentation be requested by the employer?


• Measuring the date of accrual – For each year of employment, employee can accrue

three days or 24 hours; maximum accrual 48 h/6days – Employers can cap accrual at three days or 24 hours,

but should provide clear notice of the cap – Accural commences July 1, 2015

• Carry over • An alternative to accrual and carry over: frontloading • Posting • Two required notices: on hire/change, and on pay

(wage statement or comparable notice)


• Recordkeeping: 3 years; employee inspection • Prohibitions and rebuttable presumptions • Enforcement

– Penalties – Remedies

• Impact on existing policies – California cities with existing PSL ordinances:

San Francisco, Long Beach, San Diego • Recommendations

The Almost-As-Big Ones

• Expanded definition of FEHA national origin discrimination: “AB 60” driver’s licenses (AB 1660)

• Civil rights acts: court access preserved (AB 2617)

• Immigration-related practices: updating information (AB 2751)

• Harassment of unpaid interns (AB 1443) • Employment discrimination or harassment:

education and training: abusive conduct (bullying) (AB 2053)


• Joint liability for client employers and labor contractors (AB 1897)

• Public benefits: “public shaming” act (AB 1792)

• Emergency rescue personnel LOA (AB 2536)

• UI disability certification by physicians’ assistants (SB 1083)


• Mental health disorders: language (AB 1847)

• Penalties and procedures: – Recovery of wages: liquidated damages (AB

2074)

– Child Labor Protection Act of 2014 (AB 2288)

– Minimum wage violations include §203 penalties (AB 1723)

The Others (apply to only some employers and industries)

• Farm labor contractors (SB 1087)

• Foreign labor contractors (SB 477)

• Providers of health and safety labor or services to public entities (SB 556)

• Penalties and procedures: – Compensation: rest or recovery periods (SB

1360)

– Unemployment insurance nonpayment, unreported wages, penalty increases (SB 854)

• Penalties and procedures (continued): – Workers’ compensation: proceedings:

expedited hearings (AB 1746)

– Liquidated damages for wage claims of terminated unionized, regular short-term theatrical or concert venue employees (AB 2743)

The Others (apply to only some employers and industries)

Prevailing wage laws

• Public works: prevailing wages: contractor’s costs (AB 1939)

• Public works: apprenticeship program (AB 2744)

• Increased fees for gov’t contractors (SB 854) • Public works: prevailing wage: multiemployer

apprenticeship program grants (AB 1870) • Clarifies the procedure for providing notice of

completion or acceptance of a public work to the Labor Commissioner (SB 266)

And don’t forget the locals

• Minimum wage – SF, City of LA, Berkeley,

Richmond, San Diego (also PSL), Mountain View

– Living wage (Santa Clara County)

So what are you going to do about it?

• Develop your timetable to review and update employee handbooks, policies and procedures by the end of the year

• Train supervisors and HR staff; notify employees as necessary (e.g., PSL)

So what are you going to do about it?

• Consider the twelve recommendations on Littler’s PSL ASAP: “The Epidemic Continues: California Enacts Statewide Paid Sick Leave Law”

• Check/train on use of driver’s licenses in hiring and employment

• Consider revising handbook and policies and procedures to reflect 2014 major case holdings, as described in Littler's 2014 publications available at www.littler.com

“So, if we take care of all this, our worries are over -- right?”

• The casualties of 2014 -- what you’re likely to see in 2015 – Pre-determination liens on employers (AB

2416) – PSL for home healthcare workers (AB 1522) – More days of PSL – Familial association (SB 404), “unemployed”

(AB 2271) as protected categories – The end of “employment at will”?

“So, if we take care of all this, our worries are over -- right?”

– Franchise reform (SB 610) – Corporate tax rate partially dependent on

compensation ratio (SB 1372) – Flexible workplace hours (AB 2448) – Suicide training for psychologists, counselors

(AB 2198) – Minimum wage increase/indexing – More responses to contingent work force – Liquidated damages, penalties

expanded/increased

For more information…

Littler ASAP: “Gubernatorial Writer's Cramp: 2014 California Employment Legislation Affecting Private

Sector Employers” (available at

http://www.littler.com/publication-press/publication/gubernatorial-writers-cramp-2014-california-

employment-legislation-aff)

Questions?

Christopher E. Cobey [email protected]

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