Transcript Document

Presentation to the Employers’ Advisory Council – EDD
July 16, 2013
California Mid-Year
Legislative Update 2013
Audrey Gee. Brown Church & Gee. 925.291.4452. [email protected].
100 Pringle Ave., Suite 310 Walnut Creek, CA 94596. 925.943.5000.
www.bcglegal.com
SENATE
First Reading
ASSEMBLY
Deadlines
2/22/2013
First Reading
Rules Committee/Fiscal Committee
vote
Rules Committee/Fiscal Committee
vote
Varies
Second & Third Readings
vote
5/31/2013
Second & Third Readings
vote
Repeat Process
Repeat Process
9/13/2013
GOVERNOR
Sign or allow without signature
LAW
10/13/2013
Veto
LAW if approved by 2/3 vote of each house
Bills Proposed
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AB 10 – Minimum Wage: Annual Adjustment
SB 404 – Fair Employment – Familial Status
SB 292 – Fair Employment – Sexual Harassment
SB 400 – Employment – Discrimination Against Victims of Domestic Violence,
Sexual Assault, and Stalking
SB 770 – Unemployment compensation – Disability Benefits – Paid Family Leave
SB 462 – Employment Compensation – Attorneys’ Fees
AB 25 – Employment – Social Media
AB 155 – Employment – Payroll Records
AB 218 – Employment Applications – Criminal History
SB 390 – Employee Wage Withholdings – Failure to Remit
AB 442 – Employees - Wages
SB 713 – Liability: Good Faith Reliance on Administrative Ruling
AB 263 – Employment: Retaliation: Immigration-Related Practices
AB 729 – Evidentiary Privileges: Union Agent – Represented Worker Privilege
SB 554 – Employment: Overtime Compensation
AB 241 – Domestic Work Employees: Labor Standards
SB 168 – Farm Labor Contractors: Successors: Wages and Penalties
AB 10 Minimum Wage; Annual Adjustment
• Amends Labor Code Section 1182.12 to increase the hourly
minimum wage. For the next five years, the hourly minimum
wage will be increased to fixed amounts.
Amendments eliminate the proposed
annual adjustments on a formula
using the percentage of inflation
occurring in the prior year.
AB 10 Minimum Wage; Annual Adjustment
Current minimum wage
$8.00/hour (effective 2008)
- Opposed by Cal
Chamber as job killer
- Join letter
Proposed by AB 10:
January 1, 2014 increase to $8.25/hour
January 1, 2015 increase to $8.75/hour
January 1, 2016 increase to $9.25/hour
January 1, 2017 increase to $9.50/hour
January 1, 2018 increase to $10.00/hour
Compare to Federal Fair Minimum Wage Act of 2013 – if passed would raise
federal minimum wage from $7.25 to $10.10/hr by 2015 and thereafter
would annually adjust on cost of living.
SB 404 Fair Employment:
Familial Status
The FEHA protects and safeguards
the right and opportunity of all persons to
seek, obtain, and hold employment without
discrimination or abridgment on account
of race, religious creed, color, national origin,
ancestry, physical disability, mental disability,
medical condition, genetic information, marital status, sex, gender,
gender identity, gender expression, age, or sexual orientation.
SB 404 includes “familial status” as an
additional basis upon which the right to seek,
obtain, and hold employment cannot be denied
SB 404 Fair Employment: Familial Status
• In connection with unlawful employment practices,
“familial status” means an individual who provides
medical or supervisory care to a family member.
“family member” means any of the following: a child, a parent, a
spouse, a domestic partner, or parent-in-law.
SB 404 Fair Employment: Familial Status
Tidal Wave of Claims? Increased Liability Exposure
Cal Chamber identifies SB 404 as
a job killer. Join Letter.
Broadly encompasses almost all
employees in the workforce and
hampers employers ability to
manage their business
Any adverse employment action
could be challenged on the basis
of familial status
FEHA applies to
employers of 5+
employees
• Revamp policies.
• Consider familial status if
o Taking adverse action (discipline, demotion,
changing work hours or shifts, termination)
o Choosing others for promotion, pay raises, projects
o Granting leave, time off, flexible work schedules
SB 292 Employment: Sexual Harassment
SB 292 adds to the FEHA an expanded
definition of sexual harassment
In 2011, the California Court of Appeal (First District) in
Kelley v. Conco Companies, (2011) 196 Cal.App.4th 191, held that a
plaintiff in a same-sex harassment case must prove that the harasser
harbored a sexual desire
for the plaintiff in order
to survive summary judgment.
Apprentice ironworker.
Complained that male supervisor
made sexually demeaning, rude,
crude taunting comments.
Physical threats in retaliation for
compliant. No evidence plaintiff
was targeted based on his sex
SB 292 Employment: Sexual Harassment
The Kelley ruling created a split in authority as other courts
(Singleton v. United States Gypsum – 2nd Dist. 2006) had
found that sexual harassment does not require sexual
desire.
SB 292 resolves the
split in authority as
it eliminates sexual
desire as a factor to
be considered in a
sexual harassment
lawsuit.
SB 292 Employment: Sexual Harassment
Under the currently existing law ““harassment”
because of sex includes sexual harassment, gender
harassment, and harassment based on pregnancy,
childbirth, or related medical conditions.”
• SB 292 adds additional language specifying :
Investigate and actively respond to
complaints about bosses or co-workers
who are yellers, jokesters, rude & crass.
“sexually
harassing
conduct need
not be
motivated by
sexual desire”
SB 400 Employment Protections: Victims of
Domestic Violence, Sexual Assault, or Stalking
Existing law prohibits employers from taking adverse employment action
against victims of domestic violence and sexual assault who take
time off from work to attend to issues arising as a result of the
domestic violence or sexual assault, as long as the employee complies
with certain conditions.
SB 400 extends time off protections to victims of stalking.
•
Employee must provide advance
notice of time off, if possible.
•
If the employee does not provide
advance notice, the employee may
provide certification in the form of
documents (police reports, court
orders, etc.) to the employer to
avoid adverse action.
•
Employers must maintain the
confidentiality of the employeevictim
SB 400 Employment
Protections: Victims of
Domestic Violence,
Sexual Assault, or
Stalking
Employer may not
discharge,
discriminate or
retaliate against an
employee because of the
employee’s status as a
victim of domestic
violence, sexual assault or
stalking
• Victim provides notice
to employer of status
• Or employer has actual
notice of status
SB 400 Employment Protections: Victims of Domestic Violence,
Sexual Assault, or Stalking
Employers must make reasonable accommodations, if
requested, for the employee’s safety at work
Reasonable accommodations include:
implementation of safety measures, including a transfer,
reassignment, modified schedule, changed work
telephone, changed work station, installed lock,
assistance in documenting domestic violence, sexual assault, or
stalking that occurs in the workplace, an implemented safety
procedure, or another adjustment to a job structure, workplace facility,
or work requirement in response to domestic violence, sexual assault, or
stalking, or referral to a victim assistance organization.
The employer is not required to
In determining whether the accommodation
undertake an action that constitutes
is reasonable, the employer shall consider
an undue hardship on the
an exigent circumstance or danger facing
employer’s business operations
the employee.
SB 400 Employment Protections: Victims of
Domestic Violence, Sexual Assault, or Stalking
PENALTIES:
Employee is entitled to reinstatement and reimbursement for
lost wages and benefits, along with equitable relief if an employer
discharges, discriminates, or retaliates against employee-victims.
This includes adverse action taken in response to a request for a
reasonable accommodation.
An employer who willfully refuses to rehire, promote,
or otherwise restore an employee or former employee
who has been determined to be eligible for rehiring or
promotion by a grievance procedure or hearing
authorized by law is guilty of a misdemeanor.
Employee is entitled to attorney’s fees and costs if
he or she prevails in a suit against his or her
employer for failure to comply with the above
law.
SB 770 - Unemployment compensation – Disability
Benefits – Paid Family Leave
• Broadens the definition of family with the
Paid Family Leave program to allow workers
to receive the partial wage replacement
benefits
• Expands California’s Paid Family Leave insurance program to
include time off to care for a seriously ill grandparent,
grandchild, sibling, or parent-in-law
Previously
covered only
care for: parent,
spouse, child
domestic
partner
SB 770 - Unemployment compensation –
Disability Benefits – Paid Family Leave
Current law (CRFA & FMLA) permits eligible employees to take up to 12
weeks of leave in 12 months period for:
• Baby bonding
• Caring for a family member with serious health condition (parent,
spouse, child, registered domestic partner, same sex spouse); or
• Employee’s own serious health condition
Paid Family Leave Act provides up to
6 weeks wage replacement for:
• Baby bonding
• Caring for a seriously ill family member
SB 770 - Expansion of “family member”
CA has the 2nd highest percentage of multi-generational households
SB 462 Employment: Compensation (Attorneys Fees
Awards)
Existing Labor Code Section 218.5 requires a court to
award reasonable attorney’s fees and costs to the
prevailing party if any party to the action requests
attorney’s fees and costs upon the initiation of the
action in any action brought for the nonpayment of
wages, fringe benefits, or health and welfare or
pension fund contributions.
• SB 462 awards attorneys fees to the employer
only on a finding that the employee brought
the action in bad faith.
SB 462 Employment: Compensation
(Attorneys Fees Awards)
• Provides
essentially a
one-sided
attorney’s fee
provision
• Bad faith is difficult to
prove and will limit
employer’s ability to
recover fees
• Flood of claims?
• Incentivizes
meritless wage and
hour litigation
• No downside for
employees to bring
claims
Currently, for OT and min wage claims
if employee loses, employee does not have
pay the employer’s attys fees. Bill 462 applies
to unpaid straight time wages, fringe benefits,
Health and welfare, & pensions and conforms to
the OT/min wage fee awards.
AB 25 Employment:
Social Media
Extends existing social
media standards to public
employers
As used in this chapter, “public employer” means the
state, a city, a county, a city and county, or a district.
A publicly traded company is considered a private employer.
AB 25 Employment: Social Media
Existing law: Labor Code Section 980 prohibits a private
employer from asking employees or applicants to:
o
o
o
Disclose their user name of password for the purpose of
accessing personal social media
Access personal social media in the presence of the
employer
Divulge any personal social media
Section 980 also prohibits retaliation
AB 25 applies these laws to
public employers
AB 25 Employment: Social Media
Exceptions:
• Employers retain the right to request that an employee
disclose personal social media reasonably believed to be relevant
to an investigation of allegations of employee
misconduct or employee violation of applicable laws and
regulations, provided that the social media is used solely for
purposes of that investigation or a related proceeding.
• Employer can require or request an employee to
disclose a username, password, or other method for
the purpose of accessing an employerissued electronic device
AB 155 – Employment – Payroll Records
• Provides that a current or former employee has a right to
receive a copy of their payroll records.
• Employee may elect to inspect or copy payroll records, or to
receive a copy of the records, or any combination
• Former employee terminated for
workplace violence or harassment can
only receive copies of records
• Employer can charge employee for the
costs
SB 390 – Employee Wage Withholdings – Failure to
Remit
• Bill enables the Labor Commissioner to enforce a violation for
an employer who willfully, or with the intent to defraud, fails
to remit to the proper agency any withholdings made from a
worker’s wages pursuant to state or federal law.
• Written to address some employer’s practice of withholding
the tax and social security taxes from the employee’s paycheck
and pocketing those withholdings.
• Currently, there are no specific criminal penalties that
specifically target this practice
AB 442 – Employees - Wages
• AB 442 authorizes the Labor Commissioner to collect
liquidated damages from an employer who pays an employee
less than minimum wage
• Currently, employees may obtain liquidated damages. This
law would permit the Labor Commissioner to seek recovery of
liquidated damages for workers in an amount equal to the total
amount of their unpaid minimum wages.
• Has passed in the committee and the house of origin with 0
Noes.
SB 713 – Liability – Good Faith Reliance on
Administrative Ruling
This bill provides that any person who relies on a written order,
ruling, approval, interpretation, or enforcement policy of a state
agency or department, except the DLSE, is not liable or subject
to punishment for a violation of a civil statute or regulation in a
judicial or administrative proceeding if the person pleads and
proves to the trier of fact, that at the time of the alleged act or
omission, the person, acting in good faith did al of the following:
• Sought an applicable written order, ruling, approval,
interpretation or enforcement policy from the state agency
charged with interpreting that particular area of law;
• Provided true and correct information
• Relied on and conformed with the order, ruling,
approval, interpretation or enforcement policy
SB 713 – Liability – Good Faith Reliance on
Administrative Ruling
With respect to a written order, ruling, approval, interpretation,
or enforcement policy of the DLSE, SB 713 provides that a
person who takes all of the above acts, is not liable or subject to
punishment, except for restitution of unpaid wages.
Cal Chamber supports as a job creator
CA has over 500 agencies that interpret
and enforce its laws.
Currently, if employer seeks out guidance from agency and
relies on a written determination, they are given no protection
or benefit in litigation for such reliance
DLSE issues written opinion letters and
enforcement manual but there is no current
shield from liability if employers for
compliance
AB 263 Employment: Retaliation. Immigration
Related Practices
Existing law provides all protections of the law are available to
all individuals regardless of immigration status. A person’s
immigration status is irrelevant to the issue of liability.
This bill adds that is unlawful to retaliate
against an employee or applicant for availment
of the laws, and authorizes civil penalties up to
$10,000 for each violation.
Examples of misconduct: Labor
Commissioner found employer
owed immigrant worker $50,000
unpaid wages and employer
harassed worker in his home and
threated to report worker to
immigration
AB 729 – Evidentiary Privileges. Union Agent –
Represented Worker Privilege
AB 729 creates a privilege between a union
agent, and a represented employee or former
employee, to permit them to refuse to disclose
any confidential communication between
employee and the union agent
• There is currently no such
privilege
• Permits a union representative to
refuse to testify or produce
documents that are
communications with the
employee
• Cal Chamber opposes as onesided. Bill does not protect
management communications
AB 218- Employment Applications – Criminal
History
• Bill prohibits state or local agency from asking an employment
applicant to disclose information concerning applicant’s
conviction history until agency has determined the applicant
meets minim employment qualifications
• Exempts employment positions where employer is required by
law to conduct conviction history background check, criminal
justice agency positions, and individuals working for a criminal
justice agency on a contract
SB 554 Employment: Overtime Compensation for
Employees of Residential Care Facilities
Existing law: Payment of overtime for
work over:
- 8 hours/day or 40 hrs/week
(1 ½x hrly rate)
- 12 hrs/day (2x hrly rate)
SB 554 establishes exemptions for
employees working in non-medical
residential care facilities, authorizes
an overtime pay scale, and fixes the
number of hours an employee is
permitted to work without an off-duty
period.
SB 554 Employment: Overtime Compensation
for Employees of Residential Care Facilities
Employees of 24-hour non-medical out-of-home licensed
residential facilities of 15 beds or fewer for the developmentally
disabled, elderly, or mentally ill adults may be compensated as
follows:
SB 554 Employment: Overtime Compensation for
Employees of Residential Care Facilities
• An employee who works in excess of 40
hours in a workweek shall be
compensated at one and one-half times
the employee’s regular rate of pay for all
hours over 40 hours in the workweek.
Eliminates daily OT for work over 8 hrs
• An employee shall be compensated at two
times the employee’s regular rate of pay
for all hours in excess of 48 hours in the
workweek.
OT – 1 ½ hrly rate for over 40hrs/wk
• An employee shall be compensated at two
times the employee’s regular rate of pay
for all hours in excess of 16 in a workday.
24hrs on duty then 8hrs off duty (nonsleeping)
• An employee may not work more than 24
consecutive hours until the employee
receives not less than eight consecutive
hours off-duty immediately following the
24 consecutive hours of work. Time spent
sleeping shall not be included as hours
worked.
Violation of these rules is a misdemeanor.
DT – 2x hrly rate for over 48 hrs/wk or
16hr/day
AB 241 Domestic Work Employees: Labor Standards
(Domestic Workers Bill of Rights)
Gives domestic workers overtime pay, meal and rest breaks, equal
worker’s compensation protection. Provides live-in domestic workers
uninterrupted sleep rights and rights to use kitchen facilities to
prepare own food.
Domestic work – care of persons in private households
including childcare providers, caregivers for of disabled or
elderly, house cleaners, and other household occupations.
• Last year, a similar bill,
AB 889 was passed in
both houses was vetoed
by the Governor.
• Currently, personal
attendants are exempt
from overtime, meal and
rest break and other wage
and hour requirements.
SB 168 – Farm Labor Contractors. Successors. Wages
and Penalties
Establishes successor liability for farm laborer
contractors (FLC). If any successor to any
predecessor FLC that owed wages or penalties is liable
for those wages and penalties if the successor meets
one or more of the following:
FLC uses substantially the same facilities or workforce to offer
substantially the same services as the predecessor FLC
Shares ownership, management, control of
workforce, interrelations of business
operations with predecessor FLC
Employs in a managerial capacity any person who
directly or indirectly controlled wages, hours, or
working conditions of the predecessor FLC
Is an immediate family member of any owner, partner,
officer, licensee or director of the predecessor FLC or any person
who had a financial interest in the FLC
Non-Viable Bills
SB 607. (Berryhill R- Twain Harte). California Workplace Flexibility Act
of 2013. Current law requires overtime be paid for any work over 8
or over 40 hours in a week, unless 2/3rds of the workers in a unit
adopt an alternative schedule of workdays lasting up to 10 hours.
Bill permits non-union employees to request a flexible work schedule
of up to 10 hours in a day, no more than 40/week before being paid
overtime. Lowers costs for employers and provides more flexibility in
the workplace. Supported by the Society for Human Resources
Management. Labeled by the Cal Chamber as a Job Creator. Failed in
Committee 4/24/13 (Ayes 1, Noes 3).
AB 907. (Conway – R-Tulare). Allows employee to voluntarily request
a flexible work schedule with an opportunity to work 4/10 hour
workdays without employee incurring overtime. Supported by Cal
Chamber as a job creator. Failed in house of origin.
Non-Viable Bills
AB 880 – (Gomez; D-Los Angeles). Expansion of Discrimination Litigation
with New Health Care Coverage Penalties. - Discourages hiring of entry
or re-entry workers, increases discrimination litigation by taking large
employers with a penalty if any of their employee who work as little as
12 hours per week enroll in CA’s Medi-Cal program and expands labor
code to include a protected classification for any person who is enrolled
in Medi-Cal program of the CA Health Benefit Exchange. Failed to pass
Assembly 6/27/13.
AB 1138 – (Chau; D-Alhambra). Amends Section 1871 of Insurance
Code. Massive Exposure to Civil Penalties and Liability. Increases civil
penalties on employers by permitting civil action against those
employers who fail to conspicuously post a list of every employee
covered under the an employer’s workers’ compensation insurance
policy and retain this list for five years. Missed deadline to pass from
policy committee to fiscal committee in the house in which it was
introduced.
Non-Viable Bills
SB 626 (Beall; D-San Jose). Amends Workers Compensation laws (Sections 75,
4600, 4605.5, 4610, 4610.6, 4616, 4660.1). Massive Workers’ Compensation
Cost Increase. Unravels many of the employer cost-saving provision in last
year’s workers’ compensation reform package and results in employers paying
nearly $1billion in benefit increases to injured workers without an expectation
that the increases will be fully offset by system savings. Missed deadline to pass
from policy committee to fiscal committee in the house in which it was
introduced.
SB 761. (DeSaulnier D-Concord). Expansion of Paid Family Leave Program..
Transforms the paid family leave program from a wage replacement program
into a new protected leave of absence that will burden small and large
businesses by allowing an employee to file litigation for any alleged retaliation
or discrimination as a result of their intent, request or use of the paid family
leave program. Refused passage in the Senate, 5/29/13. Reconsideration
granted. Placed on Senate inactive file, 5/30/13. Missed house of origin
deadline.
Thank you for attending
California Mid-Year
Legislative Update 2013
Audrey Gee. Brown Church & Gee. 925.291.4452. [email protected]
100 Pringle Ave., Suite 310 Walnut Creek, CA 94596. 925.943.5000.
www.bcglegal.com
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