This is an abbreviated summary of KMTG’s more expansive whitepaper regarding new workplace-related legislation passed by the Legislature in 2014, which takes effect on January 1, 2015. For a full description of the new legislation discussed below, please view the PDF on our website under the Resources tab.
I. Employee Benefits and Leaves.
A. AB 1522 (Gonzalez) – Paid Sick Leave.
The Healthy Workplaces, Healthy Families Act of 2014 (“HWHFA”; see new Lab. Code § 245, et seq.) requires employers to provide employees with paid sick leave benefits.
Beginning July 1, 2015, employees who work in California for 30 or more days within a year from the commencement of employment are entitled to paid sick days. Employees will accrue paid sick leave at the rate of one (1) hour for every 30 hours worked and will be entitled to use that sick leave beginning on the 90th day of employment.
The new law does not apply to employees covered under collective bargaining agreements that meet certain conditions as enumerated in the new law, including the requirement that the CBA provide for sick leave benefits.
The law applies to all California employers, including the state, political subdivisions of the state, and municipalities.
Under the new law, employees are entitled to use up to 24 hours or three (3) paid sick days in each year of employment. The rate of pay for paid sick leaves is the employee’s normal rate of pay, which may require averaging for employees who receive different rates of pay or are paid on a commission basis or piece rate in the 90-day period prior to using paid sick leave benefits.
Accrued paid sick days carry over from year to year. However, employers are not required to permit accrual to exceed 48 hours or six (6) days.
Employers are not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment.
Paid sick days may be used for the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or employee’s family member. “Family member” is defined as a biological, step, adopted, or foster child; spouse; registered domestic partner; grandparent; grandchild; and sibling. In addition, victims of domestic violence, sexual assault, or stalking may use paid sick days to obtain legal or medical services related to those circumstances.
B. AB 2536 (Mullin) – Emergency Rescue Personnel.
Under this new law, employees who are health care providers must notify their respective employers at the time the employee becomes designated as an emergency rescue personnel and must further notify their employer when the employee is notified he or she will be deployed to perform disaster relief as a result of that designation. The legislation also expands the definition of emergency rescue personnel to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state.
II. Discrimination/Harassment/Retaliation Legislation.
A. AB 2053 (Gonzalez) – AB 1825 Training to Include Training re “Abusive Conduct.”
This legislation expands the requirement placed on employers with 50 or more employees to provide bi-annual sexual harassment training to supervisors to also include training on “abusive conduct.”
“Abusive conduct” is defined by this legislation as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.” Abusive conduct needs to be repetitive, however, as a single act does not constitute “abusive conduct” unless it is especially severe and egregious.
B. AB 1443 (Skinner) – Expansion of FEHA Protections.
Individuals serving in an unpaid internship or other limited duration program to provide unpaid work experience are entitled to the protections in the Fair Employment and Housing Act (FEHA) against discrimination, harassment, or retaliation under this new law.
C. AB 1660 (Alejo) – Driver’s Licenses.
FEHA protections against national origin discrimination are now extended to individuals who have obtained a driver’s license pursuant to section 12801.9 of the Vehicle Code, which requires the DMV to issue a driver’s license to an individual who is unable to submit satisfactory proof that his or her presence in the United States is authorized by federal law, provided the individual meets all other qualifications for licensure and provides satisfactory proof to the DMV of his or her identity and California residency.
D. AB 2288 (R. Hernandez) – Child Labor Protection Act of 2014.
This legislation authorizes an award of treble damages to an individual who was discriminated or retaliated against by his or her employer because he or she filed a claim or civil action alleging a violation of employment laws that arose while the individual was a minor. The claim or civil action may be brought before or after the individual reaches the majority. The legislation mandates penalties of at least $25,000 and not to exceed $50,000 for violations falling within a specified class that involve a minor of 12 years old or younger.
E. AB 2751 (R. Hernandez) – Immigration-Related Retaliation.
Prohibitions against unfair immigration-related practices enacted by the Legislature last year are expanded to include threatening to file, or filing, a false police report or complaint with any state or federal agency regarding an individual’s immigration status. A $10,000 civil penalty for prohibited discrimination or retaliation related to unfair immigration-related practices may be imposed on an employer to be awarded to the aggrieved employee. An employer violating the new law may have its business license suspended either by a court, on its own motion or application by a party.
This legislation also modifies Labor Code section 1024.6 (adopted as part of last year’s legislation) and makes it unlawful for an employer to discriminate, retaliate, or take any adverse action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document. Employer compliance with this provision may not serve as the basis for a discrimination claim, including a disparate treatment claim.
III. Labor Contracting Liabilities.
A. AB 1897 (R. Hernandez) – Labor Contracting Liability.
Under this new law, employers will be jointly and severally liable with labor contractors for wage and hour and workers’ compensation coverage violations. This legislation also mandates that client employers cannot shift OSHA responsibilities onto a labor contractor.
B. SB 1087 (Monning) – Farm Labor Contractor Sexual Harassment.
This legislation prohibits licensure of farm labor contractors who have, within the last three years, been found by a court or administrative agency to have committed sexual harassment of an employee, or employed a supervisory employee whom the farm labor contractor knew, or should have known, was found to have committed sexual harassment of an employee.
C. SB 477 (Steinberg) – Foreign Labor Contractor Registration.
Beginning July 1, 2016, foreign labor contractors must register with the Labor Commissioner. On and after August 1, 2016, the commissioner is required to post on its website the names and contact information of all registered foreign labor contractors, as well as those who were denied registration. This legislation also imposes specified conditions for registration, including the execution of a written, sworn application; the Labor Commissioner’s satisfaction of the contractor’s character, competency, and responsibility ; a surety bond; and a registration and filing fee.
IV. Prevailing Wage Legislation.
The Legislature passed a number of new prevailing wage statutes this term. AB 26 (Bonilla) defines “public works” to include work performed during the design and preconstruction phases, including inspection and land surveying as well as work performed during the post-construction phases of construction, including, but not limited to, cleanup work at the jobsite. AB 2272 (Gray) expands the definition of “public works” to include infrastructure project grants from the California Advanced Services Fund (CASF). AB 1870 (Alejo) requires the California Apprenticeship Council (CAC) to distribute training contributions by making a grant to an approved multiemployer apprenticeship program serving the same craft or trade and geographical area for which the training contributions were made, for purposes of training apprentices. AB 1939 (Daly) permits a contractor to bring a court action to recover from a hiring party any increased costs, including labor costs, penalties, and legal fees incurred as a result of any decision by the Department of Industrial Relations, the Labor and Workforce Development Agency, or a court that classifies the project as a “public work,” after the time at which the hiring party accepted the contractor’s bid. Finally, SB 266 (Lieu) requires parties awarding a contract for public works to furnish a copy of the valid notice of completion filed with the county recorder, or other document evidencing the awarding party’s acceptance of a project on a particular date, whichever is later.
V. Wage/Hour Legislation.
In the area of wage and hour legislation, the Legislature enacted AB 1723 (Nazarian), which subjects employers that willfully fail to timely pay the wages of a resigned or discharged employee to a citation that includes a civil penalty, the payment of restitution of wages, and payment of liquidated damages to the employee. AB 2074 (R. Hernandez) provides for the recovery of liquidated damages equal to any unpaid wages plus interest in actions alleging payment of less than the minimum wage. AB 2743 (Committee of Labor and Employment) – Wage Penalties imposes the same civil penalties and other liabilities on employers who willfully fail to pay wages in a timely fashion to employees who quit or are discharged to employers who violate the time limit for payment of wages established in a collective bargaining agreement governing the terms and conditions of employment for employees employed at venues that host live theatrical or concert events. SB 1360 (Padilla) declares as existing law that rest or recovery periods mandated pursuant to state law, including an applicable statute, regulation, standard or order of the IWC, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, shall be counted as hours worked, for which there shall be no deduction from wages.
VI. OSHA Requirements.
New legislation in the area of workplace safety includes AB 326 (Morrell), which requires employers to immediately notify the Division of Occupational Safety and Health via telephone or email regarding an incident involving an employee’s serious injury or death. Employers failing to make such an immediate report may be subject to civil penalties of not less than $5,000. AB 1634 (Skinner) prohibits OSHA from granting proposed modifications to civil penalties for abatement or credit for abatement unless the employer has (1) abated the violation at the time of the initial inspection; (2) abated the violation at the time of a subsequent inspection prior to the issuance of a citation; or (3) submitted a signed statement under penalty of perjury with supporting evidence to the Division within 10 days after the end of the period fixed for abatement. This legislation also imposes new requirements for petitions for reconsideration of a final order or decision involving a citation for a serious health and safety violation. SB 1299 (Padilla) requires hospitals to implement workplace violence prevention plans by July 1, 2016.
VII. Unemployment Insurance Legislation.
A. AB 1556 (Perea) requires the Employment Development Department (EDD) to provide employee pamphlets concerning unemployment and disability insurance programs in the seven most commonly used languages among participants in each program. The EDD is also required to update its website in the areas regarding unemployment insurance benefits to provide the information in the seven most commonly used languages. This legislation also provides that an individual who meets all requirements and who is in the process of certifying for continued unemployment compensation benefits shall not be scheduled for a determination of eligibility during the week in which the individual participates in a training or education program and has properly notified the department of their participation. SB 1314 (Monning) extends the time period in which claimants or employers may appeal from an EDD ruling, determination, or computation, to 30 days, on or after July 1, 2015.
If you have any questions concerning this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.