A New Year and New Employment Laws

Employment law is always changing, and this year will be no different.  Several new laws took effect January 1 with which public employers in California must comply.  We have highlighted many of the key new requirements below and encourage public leaders to become familiar with all of the new laws.

Social Media
This new law adds Chapter 2.5 to Section 980 of the Labor Code.  The new legislation prohibits an employer from requiring or requesting an employee or applicant to disclose a username or password for the purpose of accessing personal social media, to access personal social media in the presence of the employer, or to divulge any personal social media. An exception does exist if the information is relevant to an investigation of employee misconduct or a violation of laws and regulations. This new law also prohibits an employer from discharging, disciplining, threatening to discharge or discipline, or otherwise retaliating against an employee or applicant for not complying with a request or demand by the employer that violates these provisions.  While this new chapter does not expressly include public employers, we are advising them to abide by the new law.  Keep in mind that California lawmakers have introduced AB 25, which specifically applies to public employers and mirrors this law.  AB 25 will likely pass.

Breastfeeding
Under the California Fair Employment and Housing Act, it is unlawful to engage in specified discriminatory practices in employment or housing accommodations based on stated protected categories, including sex.  A new law amends Government Code section 12926(q) to provide that the term “sex”, which already included gender, pregnancy, childbirth, and medical conditions related to pregnancy or childbirth, now includes breastfeeding or medical conditions related to breastfeeding. 

Religious Dress and Grooming
This law expands California’s Fair Employment and Housing Act (FEHA) to include religious dress and grooming practices as covered “beliefs and observances” against religious discrimination.  The new law also specifies that segregation, such as assigning an employee to a stock room out of public view, is not an acceptable religious accommodation.

Pension Reform
On the last day of the 2012 legislative session, the California Legislature adopted comprehensive statewide pension reform unlike anything seen before in California, or anywhere in the nation.  The centerpiece of the reform is the California Public Employees’ Pension Reform Act.

The extent to which the legislation affects your agency will vary based on the retirement system in which your agency participates, or the provisions of your retirement plan if your agency has adopted a stand-alone plan.  It will also depend on the terms of any contract covering retirement benefits, including memoranda of understanding, personnel policies, or employment contracts.

The act applies to nearly all public employers in California.  However, the University of California system, charter cities and charter counties are exempt unless these entities participate in retirement systems governed by state statute.

The key provisions that are of interest to local public agencies, including counties, cities, special districts, and school districts, include the following ten pension reform measures: (1) equal sharing of the annual normal cost of benefits; (2) compulsory reduced retirement formulas and increased retirement ages; (3) limitations on pensionable compensation; (4) anti-spiking provisions; (5) limitations on post-retirement employment; (6) forfeiture of pension benefits upon the conviction of certain felonies; (7) equal health benefits vesting; (8) prohibition of pension funding holidays; (9) final compensation for local elective or appointive office; and (10) improved industrial disability retirement benefits.

While some of these pension reform measures apply to all employees, most only apply to what the act refers to as new members. The term “new member” means: (1) an individual who has never been a member of any public retirement system prior to January 1, 2013; (2) an individual who was a member of any other public retirement system prior to January 1, 2013, but was not subject to reciprocity; or (3) an individual who was an active member in a retirement system who returns to active membership in that same system with a new employer after a more than six-month break in service.

SB 13, a bill for the pension reform package clean-up, has already been introduced.  This is an urgency bill, so as soon as it is signed into law, it will become effective.  It is anticipated that this bill will be used to address several areas of clean-up and may be passed in a very different form than as introduced.

Fact Finding under MMBA
Another new law amends the fact-finding provision under the Meyers-Milias-Brown Act (Gov. Code section 3505.4) by confirming that mediation is not a prerequisite to fact-finding under the MMBA.  The language used in the bill largely mirrors PERB Regulation 32802, which provides that if the collective bargaining dispute was not submitted to mediation, an employee organization may request that the parties’ differences be submitted to a fact-finding panel no later than 30 days following the date that either party provided the other with a written notice of a declaration of impasse. The bill also adds Gov. Code section 3505.4, subdivision (e), which states that, ”The procedural right of an employee organization to request a fact-finding panel cannot be expressly or voluntarily waived.”

Additional new laws
Other laws also effective January 1 deal with school and community college districts’ paid leave of absences for unelected members and notification time for layoffs of classified employees. There is also new law that further amends the rules regarding the employment of CalPERS retirees, which attempts to clear up confusion from previous legislation.

More detailed information is available online to further help public employers understand these new laws, including our law firm’s website www.bbklaw.com.

Alison Alpert and Stacey Sheston co-chair Best Best & Krieger’s Labor & Employment Practice Group. 

Alpert is a partner in the firm’s San Diego office.  Alpert regularly advises employers on all aspects of labor and employment law and represents private and public employers in a broad range of employment litigation. She can be reached at Alison.Alpert@bbklaw.com.

 

 

 

Sheston is a partner in BB&K’s Sacramento office and is a member of the firm’s executive committee. Her practice includes day-to-day employment advice on a variety of issues as well as representing employers in mediations, arbitrations, administrative hearings and court proceedings, including jury and non-jury trials.  She can be reached at Stacey.Sheston@bbklaw.com.

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