New Employment Laws
Every California Employer Needs to Know
January 6, 2016
MANDATORY SICK LEAVE IS NOW THE LAW
Make sure your company is in compliance. Beginning on July 1, 2015, all employers must provide paid sick leave. Employers must post the new law immediately. We are attaching a poster for your convenience!
New Year - New Laws: Are you ready?
Some of the new laws for 2015, such as mandatory paid sick leave, make significant changes to California’s legal landscape. Other new laws make changes to different parts of existing law or may only affect employers in specified industries, such as farming.
Unless specified, the following list of new legislation goes into effect on January 1, 2015.
Leaves of Absence
Mandatory Paid Sick Leave
The biggest news is mandatory paid sick leave. The new law, known as “Healthy Workplaces, Healthy Families Act of 2014,” requires employers to provide paid sick leave to any employee who worked in California for 30 days. The effective date for employers to begin providing the paid sick leave benefit is July 1, 2015. However, Employers need to post notification of the new law as of January 1, 2015.
Employers can choose one of two options: They may either allow employees to accrue sick leave at a rate of one hour for every 30 hours worked (69.3 hours for full-time employees working 40 hours a week) or award a one-time lump sum of 24 hours (three days).
Accrual: Under the accrual method, employees will accrue one hour of paid sick leave for every 30 hours worked. Employers are allowed to limit an employee’s use of paid sick leave to 24 hours or three days in eachyear of employment and may put a maximum cap on total accrual of 48 hours or six days. Lump Sum: Alternatively, employers may provide employees with 24 hours/three days of sick leave at the beginning of the year. Under this lump sum method, the employee does not carry over the unused sick leave from year to year; but rather is awarded three days of paid sick leave at the beginning of each year. The law contains many different nuances, such as detailed recordkeeping and notice requirements, including a new poster requirement (the required posting is attached as the last page of this newsletter). The law also contains penalties for noncompliance.Time Off for Emergency Duty: Expanded CategoryAB 2536 adds new personnel to the list of employees eligible for protected time off for emergency duty to include an officer, employee, or member of a disaster medical response entity sponsored or requested by the state. This new law also requires an employee who is a health care provider to notify his/her employer when he/she is designated as emergency rescue personnel at the time that the employee learns that he/she will be deployed for emergency duty.
Discrimination, Harassment and Retaliation Protections
Several new laws expand employee protections for 2015.
Protections for Unpaid Interns and Volunteers (AB 1443):
Adds unpaid interns and volunteers to those who are protected from harassment under the Fair Employment and Housing Act (FEHA);
Prohibits employers from discriminating against individuals in an unpaid internship or another limited duration program to provide unpaid work experience for that person; and
Extends religious belief protections and religious accommodation requirements to anyone in an apprenticeship program, an unpaid internship, or any other program to provide unpaid work experience.
Nondiscrimination: Driver’s Licenses for Undocumented Persons (AB 1660):
AB 1660 makes it a violation of FEHA for an employer to discriminate against an individual because he/she holds or presents a driver’s license issued to undocumented persons who can submit satisfactory proof of identity and California residency. Such discriminatory actions will constitute national origin discrimination under FEHA.
These driver’s licenses are often referred to as “AB 60 driver’s licenses,” after the name of the bill passed last year. AB 60 driver’s licenses will be issued as of January 1, 2015.
AB 1660 clarifies that actions taken by an employer that are required to comply with federal I-9 verification requirements under the Immigration and Nationality Act (INA) do not violate California law.
AB 1660 also provides that it is a violation of FEHA for an employer to require a person to present a driver’s license, unless possessing a driver’s license is required or permitted by law.
AB 1660 further requires any driver’s license information obtained by an employer to be treated as private and confidential.
Immigration-Related Protections (AB 2751):
This law expands the definition of an unfair immigration-related practice to include threatening to file or filing a false report or complaint with any state or federal agency. Current law extended the protection only to reports filed with the police.
AB 2751 also clarifies that an employer cannot discriminate against or retaliate against an employee who updates his/her personal information based on a lawful change of name, Social Security number, or federal employment authorization document.
Prohibition of Discrimination Against Public Assistance Recipients: Public Reports (AB 1792):
This law prohibits employers from discriminating or retaliating against employees receiving public assistance, which is defined as meaning the Medi-Cal program. This law is applicable only to employers with more than 100 employees that are beneficiaries of the Medi-Cal program.
Harassment Prevention Training: Prevention of Abusive Conduct (AB 2053):
Beginning January 1, 2015, employers who are subject to the mandatory sexual anti-harassment training for supervisors must include a component on the prevention of “abusive conduct.” “Abusive conduct” is defined as conduct 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. A single act shall not constitute abusive conduct, unless especially severe and egregious.
This new law does not mean that an employee can sue for abusive conduct in the workplace unless, of course, the conduct becomes discrimination or harassment against a protected class. The law merely requires training on prevention of abusive conduct.
Farm labor contractors must now provide sexual anti-harassment training on a yearly basis for supervisory employees and training for nonsupervisory employees at the time of hire and every two years thereafter.
Wage and Hour
Several new laws increase employers’ wage-and-hour obligations in 2015.
Many of the new laws in the wage and hour arena deal with increasing penalties and expanding liability, instead of imposing significant new obligations on employers.
Increased Liability for Employers That Contract for Labor (AB 1897):
This law establishes shared legal responsibility between labor contractors and employers utilizing workers supplied by labor contractors. It also prevents employers from shifting any legal duty or liability to a labor contractor. In brief, if a labor contractor fails to pay its workers properly or fails to provide workers’ compensation coverage for those employees, the “client employer” can now be held legally responsible and liable.
Rest and Recovery Periods (SB 1360):
This law clarifies that recovery periods taken pursuant to heat illness regulations are paid breaks and count as hours worked. SB 1360 reiterates what is already in existing law in this area and was passed simply to clear up any confusion employers may have had.
Waiting Time Penalties (AB 1723):
Prior to this law, the Labor Commissioner could cite an employer who pays less than the minimum wage; the citation can include a civil penalty, restitution and liquidated damages. AB 1723 authorizes the Labor Commissioner to expand the penalties to up to 30 days’ wages, also known as “waiting time” penalties, under Labor Code Section 203.
Another new law, AB 2743, provides a waiting time penalty if unionized theatrical and concert venue employers violate any agreed upon timeframe for payment of final wages contained in a collective bargaining agreement.
Protections for Complaints Under the Labor Code (AB 2751):
This law clarifies that the $10,000 penalty against an employer who discriminates or retaliates against an employee who complains of Labor Code violations will be awarded to the employee or employees who “suffered the violation.”
Timeframe for Recovery of Wages: Liquidated Damages (AB 2074):
A lawsuit seeking to recover liquidated damages for minimum wage violations can be filed any time before the expiration of the statute of limitations that applies to the underlying wage claim, which is three years. Some recent court cases had held that liquidated damages claims had to be filed within one year.
Child Labor Law Violations: Increased Remedies (AB 2288):
The Child Labor Protection Act of 2014, provides additional penalties for violations of California laws regarding employment of minors, including a penalty of $25,000 to $50,000 for “Class A” violations involving minors 12 years of age or younger. The statute of limitations for claims that arise from violations of employment laws is tolled until the minor is 18 years of age.
Foreign Labor Contractors (SB 477):
Employers who use foreign labor contractors to recruit foreign workers for California assignments must meet registration, licensing and bonding requirements by July 1, 2016.
Employers are prohibited from using non-registered foreign labor contractors to supply workers in California. SB 477 also imposes disclosure requirements and other obligations on foreign labor contractors. There are penalties for noncompliance and joint liability for employers who use non-registered foreign labor contractors and potential for civil action.
A number of bills were signed this year related to prevailing wages. Employers who provide services or construction work on public works projects for the government or public entities must pay the prevailing wage, which is usually significantly higher than the minimum wage.
One notable bill, AB 1939, allows a contractor to bring an action against the hiring party when the contractor is subjected to increased costs of paying the prevailing wage when a project is declared a public work (and therefore subject to prevailing wages) after the contractor is hired.
Another notable bill, SB 266, responds to concerns regarding delays in determining whether a project is a public works project for prevailing wage purposes.
Several new laws relate to criminal background checks.
Criminal History Information in Public Contracts (AB 1650):
Contractors who bid on state contracts are now required to certify that they will not ask applicants to disclose information concerning criminal history at the time of an initial employment application.
Services to Minors (AB 1852):
Businesses that provide certain services to minors must now provide a written notice to the parent or guardian of the minor receiving those services explaining the business’s policies relating to employee criminal background checks.
Several new laws pertain to workplace safety.
Penalties for Failure to Abate Safety Hazards (AB 1634):
Cal/OSHA can require an employer to fix serious workplace safety violations and may issue civil penalties. An employer can appeal the issuance of penalties. The new law prohibits the OSHA Appeals Board from modifying the penalties unless the employer has fixed the violation.
In cases of serious repeat or willful violations, the OSHA Appeals Board may no longer stay or suspend the abatement requirement pending the employer’s appeal unless the employer can demonstrate that a stay or suspension will not adversely affect the health and safety of employees.
Email for Workplace Safety Reports (AB 326):
AB 326 allows employers to email their reports of a work-related serious injury, illness, or death to the Division of Occupational Safety and Health. Previously, the Labor Code required an immediate report by telephone or telegraph. In keeping with the times, the reference to telegraph has been removed.
This bill requires certain hospitals to adopt a workplace violence prevention plan, including certain criteria as specified, as part of these hospitals’ injury and illness prevention plan by July 1, 2016.
Division of Labor Standards Enforcement
Office of the Labor Commissioner
THIS POSTER MUST BE DISPLAYED WHERE EMPLOYEES CAN EASILY READ IT.
HEALTHY WORKPLACES/HEALTHY FAMILIES ACT OF 2014
PAID SICK LEAVE
An employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the beginning of employment is entitled to paid sick leave.
Paid sick leave accrues at the rate of one hour per every 30 hours worked, paid at the employee’s regular wage rate. Accrual shall begin on the first day of employment or July 1, 2015, whichever is later.
Accrued paid sick leave shall carry over to the following year of employment and may be capped at 48 hours or 6 days. However, subject to specified conditions, if an employer has a paid sick leave, paid leave or paid time off policy (PTO) that provides no less than 24 hours or three days of paid leave or paid time off, no accrual or carry over is required if the full amount of leave is received at the beginning of each year in accordance with the policy.
An employee may use accrued paid sick days beginning on the 90th day of employment.
An employer shall provide paid sick days upon the oral or written request of an employee for themselves or a family member for the diagnosis, care or treatment of an existing health condition or preventive care, or specified purposes for an employee who is a victim of domestic violence, sexual assault, or stalking.
An employer may limit the use of paid sick days to 24 hours or three days in each year of employment.
Retaliation or discrimination against an employee who requests paid sick days or uses paid sick days or both is prohibited. An employee can file a complaint with the Labor Commissioner against an employer who retaliates or discriminates against the employee.
For additional information, you may contact your employer or the local office of the Labor Commissioner. Locate the office by looking at the list of offices on our website http://www.dir.ca.gov/dlse/DistrictOffices.htm using the alphabetical listing of cities, locations, and communities. Staff is available in person and by telephone.
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