By Alison Alpert, Best Best & Krieger.
As in years past, 2016 brings important changes to employment laws in California — a state that continues to be a challenging environment for employers.
Employment issues ranging from healthy workplaces and gender identity to meal periods and white collar exemptions are addressed and clarified in this new batch of state and federal laws. Below is a recap of these new bills, including some that became effective in the latter part of 2015.
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Assembly Bill 10 – New Minimum Wage
Effective in 2013, AB 10 provides an annual adjustment to California’s minimum wage. As of January 1, the minimum hourly wage throughout the state is $10 per hour.
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Assembly Bill 304 – Healthy Workplaces, Healthy Families Act Clean Up Legislation
AB 304 amends and clarifies the Healthy Workplaces, Healthy Families Act of 2014as follows:
- Clarifies that a lump sum of three days (or 24 hours) sick leave can be made available at the beginning of each year, calendar year or 12-month period.
- Establishes alternate methods of accrual for employers choosing to provide sick leave on an accrual basis rather than as a lump sum:
- Accrued on a regular basis and ensures that employees accrue no less than 24 hours of sick leave or paid time off by the 120th calendar day of employment, each calendar year or in each 12-month period. For example, employees accrue one day of sick leave a month or at a minimum two hours per month.
- Provide no less than 24 hours or three days leave that is available for use by completion of the employee’s 120th calendar day of employment.
- Clarifies that 30 or more days of work for the same employer is required in order to qualify for accrued sick leave.
- Excludes a retired annuitant of a public entity from the definition of employee so no sick leave is required to be provided.
- Employers with unlimited sick leave or paid time off can meet the requirement to provide notice to employees of available leave by stating “unlimited” on wage statements or other notices.
- Employers do not have the obligation to inquire into the reason for the leave.
- Clarifies the conditions under which an employer can rely on an existing paid leave or paid time off policy, including that the policy existed prior to January 1, 2015 and provides benefits which meet other specific conditions.
- Clarifies an employer can limit an employee’s use of paid sick days to 24 hours or three days in each year of employment.
- Clarifies sick leave paid out on separation of an employee does not have to be reinstated on rehire.
- Explains how to calculate the rate of pay for paid sick leave.
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Assembly Bill 622 – Unlawful Employment Practices
The federal E-Verify system enables employers to verify that the employees they hire are authorized to work in the United States. Existing law prohibits the state or a county, city or special district from requiring an employer to use an electronic employment verification system, including E-Verify, except when required by federal law or as a condition of receiving federal funds. Existing law prohibits an employer from engaging in unfair immigration-related practices against any person for the purpose of retaliating against the person for exercising specified rights. AB 622 adds section 2814 to the Labor Code and expands the definition of an “unlawful employment practice” to prohibit an employer from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding to check the employment authorization status of an existing employee or applicant who has not received an offer of employment. It also requires an employer that uses the E-Verify system to provide to the affected employee any notification issued by the Social Security Administration or the U.S. Department of Homeland Security containing information specific to the employee’s E-Verify case or any tentative non-confirmation notice. The bill includes a $10,000 civil penalty for violations.
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Assembly Bill 1509 – Retaliation Against Employee Family Members
AB 1509 amends sections 98.6, 1102.5, 2810.3 and 6310 of the Labor Code.
Under existing law, an employer is prohibited from retaliating or taking any adverse action against any employee or applicant because they engaged in protected conduct. The bill extends this protection to an employee who is a family member of a person who engaged in, or was perceived to engage in, protected conduct or who made a complaint.
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Assembly Bill 987 – Retaliation for Requesting a Disability or Religious Accommodation
AB 987 amends the California Fair Employment and Housing Act (FEHA). Current law requires an employer to provide reasonable accommodation of a person’s disability or religious beliefs and prohibits discrimination. AB 987 reasserts, in light of the decision in Rope v. Auto-Chlor System of Washington, Inc. (2013) 220 Cal.App.4th 635, that FEHA prohibits an employer from retaliating against a person for requesting accommodation of a disability or religious beliefs, regardless of whether the request was granted.
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Assembly Bill 1513 – Piece-Rate Compensation
AB 1513 adds Labor Code section 226.2 to require an itemized statement for piece-rate employees that must separately state the total hours of compensable rest periods and nonproductive time, the pay rate and gross wages for those periods. The law defines “other nonproductive time” to mean time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis. The new law clarifies that employees must be compensated for rest and recovery periods and other unproductive time at the minimum wage or above, separately from any piece-rate compensation. The law provides a safe harbor for employers meeting specific qualifications.
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Senate Bill 327 – Meal Periods
Existing Wage Orders of the Industrial Welfare provide that employees in the healthcare industry who work shifts in excess of eight total hours in a workday may voluntarily waive their right to one of their two meal periods. An employer may not require an employee to work during a meal or rest or recovery period. SB 327 clarifies that these Wage Orders remain valid and enforceable, and that workers are permitted to waive their second meal period when their shifts last longer than 12 hours.
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Senate Bill 358 – California Fair Pay Act
Existing law prohibits an employer from conditioning employment on an employee not disclosing the amount of wages, signing a waiver of that right or discriminating against an employee for making such a disclosure. It also prohibits an employer from paying an employee less than employees of the opposite sex in the same establishment for equal work on jobs that require equal skill, effort and responsibility and are performed under similar conditions. SB 358 amends section 1197.5 of the Labor Code to eliminate the requirement that the wage differential be “within the same establishment,” and instead prohibits an employer from paying any of its employees at wage rates less than those paid to employees of the opposite sex for “substantially similar work” when viewed as a combination of skill, effort and responsibility. It also revises the exceptions for differential wages to require the employer to demonstrate that a wage differential is based on a factor other than sex. The employer must demonstrate that each factor relied upon is applied reasonably and that the factors relied on account for the entire differential.
The bill prohibits an employer from discharging, discriminating or retaliating against any employee because of any action taken to enforce these provisions. It also authorizes an employee who has been discharged or discriminated or retaliated against to recover reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer. The bill further prohibits an employer from preventing an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages or aiding or encouraging any other employee to exercise his or her rights under these provisions. It increases the duration of employer recordkeeping requirements for records of wages and wage rates, job classifications and other terms and conditions of employment from two years to three years.
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Senate Bill 579 – School Leave and Family Sick Leave
Existing law requires an employer who has 25 or more employees to allow a parent, guardian or grandparent with custody of a child time off to participate in school activities. SB 579 amends section 230.8 of the Labor Code and revises references to a child daycare facility to instead refer to any childcare provider, expanding the coverage of the law. The bill defines “parent” as a parent, guardian, stepparent, foster parent or grandparent of, or a person who stands in loco parentis to, a child and therefore, extending these protections to an employee who is a stepparent or foster parent or who stands in loco parentis to a child.
Existing law further requires an employer who provides sick leave to permit an employee to use sick leave to attend to the illness of a child, parent, spouse or domestic partner and prohibits an employer from denying an employee this right or taking discriminatory action against an employee for using, or attempting to exercise, the right to use sick leave. SB 579 amends section 233 of the Labor Code to make it consistent with the Healthy Workplaces, Healthy Families Act of 2014, expanding the reasons leave can be taken and expanding the family members covered by the leave.
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Senate Bill 588 – Labor Commissioner Judgment Enforcement
SB 588 amends several sections of the Labor Code allowing the Labor Commissioner to enforce judgments against an employer for the nonpayment of wages. It also authorizes the Labor Commissioner to provide for a hearing to recover civil penalties against any employer for a violation of those provisions regulating hours and days of work in any order of the Industrial Welfare Commission.
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Senate Bill 703 – Public Contracts Gender Identity Discrimination
Specific to public agencies, the bill adds Public Contract Code section 10295.35 prohibiting a state agency from entering into contracts for goods or services of $100,000 or more with a contractor that discriminates between employees on the basis of gender identity.
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The above summary does not cover all of the new labor and employment laws enacted in the last year. We encourage you to review the news laws and talk to your legal counsel about any questions you may have. Staying current on legislative changes and keeping your policies and procedures up-to-date are two of the best strategies for avoiding employment problems.
For a review of the non-employment related new laws affecting municipalities and special districts throughout the state, click here to read a December 2015 PublicCEO article by BB&K public agency attorneys.
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Alison D. Alpert is a partner and practice group leader of the Labor & Employment group and is based in Best Best & Krieger LLP’s San Diego office. She represents public and private employers in a wide range of employment litigation in state and federal court and before administrative agencies. She also provides advisory services to those clients, involving employee handbooks, trainings and daily employment issues. She can be reach at alison.alpert@bbklaw.com.