By Stacey N. Sheston and Susan L. Shoenig, Best Best & Krieger LLP.
Like death and taxes, new employment laws are inevitable with each new year. In 2014, public employees are facing a bevy of new laws, including those that address leave, discrimination and retirement benefits and those that expand paid family leave, whistleblower protections and the rights of crime victims at the workplace. As many of the new laws took effect Jan. 1, public agencies should review their employment policies to ensure they are up to date. Below is an overview of the new 2014 employment laws that affect public employers. (For an overview of non-employment related laws affecting public agencies that are new in 2014, see the January 6, 2014 edition of Public CEO.)
AB 11 – Expands Leave Rights for Peace Officers and Volunteer Firefighters for Training
Employers with 50 or more employees are currently required to grant 14 days per year of temporary leave for volunteer firefighters to receive fire or law enforcement training. AB 11 expands the law to include any employee who is a volunteer firefighter, reserve peace officer or emergency rescue personnel, and also expands the qualifying training to include fire, law enforcement or emergency rescue training.
AB 60 – Driver’s License for Undocumented Immigrants with Limitations
Under this new law, undocumented immigrants will be issued a California driver’s license. Such licenses, however, will be stamped to alert employers that the license cannot be used for any federal purpose, including 1-9 verification.
AB 556 – Military/Veteran Status Now Protected
The Fair Employment and Housing Act has been expanded to include protection against employment discrimination for military personnel and veterans. One interesting caveat to this bill: even though the military and veterans are now a protected category, employers may still favor active military and veterans when making employment decisions.
SB 288 Time Off for Crime Victims Expanded
As a way for victims to be heard, the California Legislature passed protections for victims of additional types of serious crimes, including felony child abuse, vehicle manslaughter, felony stalking and others. (Previously, only victims of sexual assault were protected.) Now employers cannot discriminate or retaliate against a victim of a serious crime for taking time off to attend court proceedings regarding the crime. Additionally, the definition of “victim” has been expanded to include the employee’s spouse, parent, child, sibling or guardian.
SB 292 Sexual Harassment Clarification
To further protect the rights of individuals who are sexually harassed in the workplace and in direct response to a state appellate court’s decision in Kelley v. Conco Companies (2011), this law amends the Fair Employment and Housing Act to clarify that sexual harassment does not need to be based on sexual desire.
SB 400 Stalking Victims Receive Protected Status
While previous law only protected domestic violence and sexual assault victims, stalking victims are now also protected under the law. Employers cannot terminate or retaliate against an employee who is a stalking victim and must provide reasonable accommodation such as a transfer to another workplace, change to the employee’s work phone number or extension, etc.
SB 496 Expanded Whistleblower Protections
This bill expands the Labor Code to exempt whistleblowers from filing a tort claim before filing a whistleblower claim. Protections for whistleblowers have also been expanded to reports of or refusal to participate in violation of local rules or regulations. (Previously, protections only applied to federal and state rules.) Additionally, employees who an employer believes disclosed or may have disclosed information to a government, law enforcement agency or to someone with authority over the employee or has the authority to investigate, discover or correct the violation are protected under law – even if the employee has yet to make such a report.
AB 700 Paid Family Leave Care Benefits Expanded
Under this bill, the paid family leave benefits are expanded so employees may take leave to care for a seriously ill grandparent, grandchild, sibling or parent-in-law and receive the 55 percent wage replacement. Previously, employees could only receive benefits when caring for a newly born or adopted child or taking care of a seriously ill child, spouse, parent or domestic partner.
While the above laws apply to all employers, the following laws are specific only to public agencies.
AB 218 Criminal History and Job Applications
This legislation was passed in an effort to help employ individuals with a criminal history. Effective July 1, public employers will be prohibitive from making inquiries or assessments of criminal convictions prior to determining if a potential employee meets the minimum job qualifications listed in a job posting. Employers must either adopt a process that identifies which prospective employees meets the minimum job qualifications prior to filling out the application or remove from initial job applications or screenings any questions regarding criminal convictions. Such questions can be asked later in the hiring process, once it is determined the applicant meets the minimum qualifications and before a conditional job offer is extended.
AB 537 Meyers-Milias-Brown Act Revisions
With the passing of this law, a tentative agreement for a new public employees union contract must be approved or rejected by the governing body within 30 days of the date it was first considered at a noticed public meeting. If adopted, then the parties must jointly prepare a memo of understanding. Additionally, the new law states that California’s Arbitration Act applies to arbitration agreements in memorandum or understandings. In addition this law provides that defenses to the arbitration process, such as missed deadlines, be submitted to the arbitrator for review, rather than a court.
AB 1181 Union Representative Release Time Expansions
Under this law, employees have expanded release time rights. Currently, the law provides that an employer shall allow a reasonable number of employee representatives paid time off when “formally meeting and conferring with representatives of the public agency on matters within the scope of representation.” This is now expanded to include testifying or serving as the union representative in a Public Employees Relations Board proceeding or as the designated union representative in a personnel or merit commission hearings.
SB 13 Public Employees and Retirement
This law clarifies multiple sections of the government code regarding the Public Employees Retirement Systems. Some of these changes include: The initial contribution rate for new members must be agreed to through collective bargaining to exceed 50 percent; employees may offer a new, defined contribution plan after Jan. 1, 2013, even if it was not previously offered; employers are not required to change a retiree health benefits vesting schedule for employees subject to schedule before Jan. 1, 2013; and exempts public safety and firefighter retirees from the requirement that the retiree may only be employed after a 180-day break in employment.
SB 39 Forfeiture of Benefits for a Felony Conviction
A local public officer convicted of a felony arising out of or in performance of his/her official duties, under this new law, will forfeit claims against the local public agency employer for retirement or pension rights or benefits. However, this does not apply to accrued rights and benefits under the public retirement system.
SB 313 Brady List Related Actions
Public agencies are now prohibited from taking punitive action or denying a promotion to a public safety officer whose name has been placed on the Brady List. While agencies may still take punitive action based on the officer’s underlying conduct, an agency cannot introduce evidence that the officer’s name appears on the list in administrative appeals of discipline unless it has proved the underlying act or the officer was found subject to punitive action based on the act.
The new year also brings many changes to wage and hour laws. We encourage California public agencies to also be aware of these changes and respond as needed. For more information, please visit www.bbklaw.com.
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Stacey N. Sheston and Susan L. Shoenig are partners in the Labor & Employment practice group of Best Best & Krieger LLP, based in the Sacramento office. Their practices include both counsel and litigation regarding employment issues. Sheston can be reached at Stacey.Sheston@BBKlaw.com. Shoenig can be reached at Susan.Shoenig@bbklaw.com