By Alison D. Alpert, Best Best & Krieger LLP.
Year in and year out, one thing is true: In California, there will always be new laws affecting employers, and 2015 is no exception. Below is a brief description of the laws that public sector employers need to be aware of for the new year. As with any legal issue, if you have specific questions or need additional information, you are encouraged to contact your legal counsel.
The new labor and employment-related laws starting Jan. 1 include:
AB 326 – Reporting Requirements for Occupational Safety and Health
This law brings OSHA “into the 21st Century” by amending Labor Code section 6409.1, to allow employers, to make reports of serious illness or injury or death via email in addition to the telephone.
AB 1443 – Harassment of Unpaid Interns and Volunteers
Under this amendment to Government Code section 12940-FEHA, harassment of unpaid interns and volunteers, in additional to employees and applicants, is now prohibited. Also under the amendment, unpaid interns are now protected against discrimination in selection, termination and training.
AB 1660 – Discrimination/Driver’s License for Undocumented Persons
FEHA national origin discrimination now bans discrimination by an employer based on holding or presenting an AB 60 driver’s license – a license issued to an undocumented person. However, this does not mean that an employer should not comply with I-9 verification. For public employers, it is important to note that such a license is not considered a public record. Another aspect of the law states that asking for a driver’s license is permissible if it is consistent with policy and the requirements for the specific employment opportunity. Employers should be careful when asking for a driver’s license and should do so only when it is required for the position or as part of the I-9 verification process.
AB 1723 – Waiting Time Penalties
This law allows the Labor Commissioner to now enforce waiting time penalties for the delay of payment of minimum wage by an employer. The Labor Commissioner can also issue a citation for a civil penalty, restitution and liquidated damages against an employer. The bill does not create new penalties.
AB 1897 – Labor Contractor and Employer Jointly Liable
This new law makes employers and labor contractors/temporary agencies jointly liable for paying wages and/or obtaining workers’ compensation coverage. This applies to employers who have 25 or more employees, including temporary workers, and more than five temporary workers at any time. Employers are advised to make sure they are working with reputable temporary employment placement agencies and that remedies for the agency breaching these responsibilities are included in their contract.
AB 2053 – Abusive Conduct Training
This bill expands California’s mandatory harassment training to include abusive – or bullying – conduct avoidance. It is important to note, however, that while this law requires training regarding the conduct, it does not make such abusive conduct illegal under FEHA.
AB 2074 – Recovery of Liquidated Damages
This bill clarifies the statute of limitations, making it clear that employees can recover liquidated damages (equal to the wages owed to the employee), as well as wages not received for the three prior years..
AB 2288 – Child Labor Protection Act of 2014
Recoverable damages for discrimination or retaliation for filing a claim or lawsuit by a minor, based on a violation of the Labor Code, are increased to three times the amount of actual damages under this new bill.
AB 2536 – Time Off for Emergency Rescue Personnel
Under existing law, it is prohibited to discharge or discriminate against an employee for taking time off as emergency rescue personnel. This bill expands the definition of emergency rescue personnel to include an officer, employee or member of a disaster medical response entity.
AB 2617 Waiver of Civil Rights
Under this law, waivers of civil rights claims in employment contracts (including arbitration agreements) are now generally prohibited. The law provides that such waivers must be knowing and voluntary and cannot be a condition of the contract/employment. The bill, however, does not appear to limit employers from entering into settlement or severance agreements that waive civil rights claims. Employers are advised to look at any existing employment arbitration agreements carefully and to revise, as needed.
AB 2751 – Immigration-Related Protections
This is a clean-up bill, designed to clarify issues included in AB 263, passed in 2014, that prohibits employers from using immigration status to retaliate against workers who exercise their rights under the Labor Code. The bill makes clear that a $10,000 civil penalty on employers who violate the law is paid directly to the employee, not the state. It also expands unfair immigration practices to include threatening to file, or filing, a false report or complaint with any state or federal agency. The Labor Code is also amended to narrow the prohibition on taking disciplinary action against an employee who updates or attempts to change personal information to apply only to lawful changes. There was some concern prior to this clarification that employers could not take action if they found an employee had previously used a fake ID or Social Security number.
SB 1360 – Compensation for Rest or Recovery Periods
Current OSHA regulations require recovery breaks, however, the law was unclear as to whether these breaks were paid breaks. This bill – described as declaratory of existing law – confirms that such recovery breaks, like other types of rest breaks, are paid breaks and count as hours worked.
CalPERS Regulations for 2015 – Pensionable Compensation under PEPRA
Last year PEPRA created a definition of pensionable compensation that excluded 13 types of pay that cannot be counted toward such compensation. In interpreting PEPRA, CalPERS determined that PEPRA did not limit pensionable compensation only to base pay, but to the normal monthly rate or base pay. Based on this interpretation, CalPERS approved regulations on Aug. 20, 2014, which provide that pensionable compensation can be the “normal monthly rate of pay,” which includes pay in addition to “base pay.” Additional forms of pay that employers typically provide include pay for special skills and certifications, educational degrees and special assignments. However, for these items to be “PERSable” (reportable as pensionable compensation), they must be included on a publicly approved pay schedule.
One notable new law takes effect on July 1:
AB 1522 – Paid Sick Leave
Probably the most talked about new employment law of the new year, AB 1522 establishes the Healthy Workplaces, Healthy Families Act that provides paid sick leave for employees. If your agency or municipality already has a paid sick leave policy, you are not required to establish a new policy, but you must ensure that your policy is at least as beneficial to employees as what the law requires. It is advisable to start reviewing your existing policy now to ensure that it is in compliance.
It is also important to note that employers must provide notice to employees about the new law and that a new poster has been issued.
The law has several components:
- Eligibility: An employee must work 30 or more days within a year of employment on or after July 1.
- Accrual: Paid sick days accrue at the rate of one hour per 30 hours worked beginning July 1. Exempt employees are deemed to work 40 hours per week for accrual purposes, unless an employee’s regular schedule is less.
- When: An employee can use the leave beginning on the 90th day of work, up to three days per year.
- Carry Over: Employees may carry/accrue up to six days – however, there is no payout provision for accrued leave.
- Use: Leave can be used for illness of a child, parent, parent-in-law, spouse, domestic partner, grandparent, grandchild or sibling.
- Types of occurrences: Diagnosis, care, treatment and preventive care. Victims of domestic violence may also use the time.
A detailed presentation about these new laws, as well as employment-related court decisions of 2014, is available online by clicking here.
Alison D. Alpert is a partner and practice group leader of the Labor & Employment group at Best Best & Krieger LLP. Alison represents private and public employers in a broad range of employment litigation and frequently advises clients concerning employee handbooks and employment policies. She can be reached at Alison.Alpert@bbklaw.com.