Calif.: Significant Employment Bills Still Pending in Legislature

By Michael Kalt Jun 9, 2015
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A number of significant employment-related provisions are advancing in the California legislature. These bills have survived the June 5, 2015, deadline for bills to pass their house of origin. They include measures that would:

  • Increase California’s minimum wage beyond the already contemplated 2016 increase and to $13 per hour by 2017 (S.B. 3).
  • Amend the paid sick leave bill passed in 2014 to allow employees to use paid sick leave for “child care or school emergencies” (S.B. 579).
  • Expand the California Family Rights Act (CFRA) to apply to employers with more than five employees (instead of 50 employees) and expand the class of family members for whom leave may be taken because of a serious health condition (S.B. 406).
  • Prohibit advertisements discouraging the unemployed from applying from available jobs (A.B. 676).
  • Allow employers to demonstrate a preference to veterans during hiring decisions (A.B. 1383).
  • Amend the Fair Employment and Housing Act (FEHA) to treat accommodation requests as protected legal activities for retaliation purposes (A.B. 987).
  • Preclude employers from requiring employees to agree to arbitration as a condition of employment (A.B. 465).
  • Expand the current workplace prohibition on smoking to include electronic cigarettes.

Given the overwhelming single party rule in Sacramento, most of these bills have a significant likelihood of making it to Gov. Jerry Brown’s desk.

There were also several significant employment provisions that failed passage.This includes bills that would have:

  • Allowed individual employees to elect an alternative workweek schedule (A.B. 1038).
  • Created an overtime exemption for certain highly compensated employees (A.B. 1480).
  • Created a “tip credit” against an employer’s minimum wage obligation (A.B. 669).
  • Required employers provide double pay on Thanksgiving and Christmas (A.B. 67).
  • Required food and retail establishments to provide two weeks notice of schedules or pay additional compensation (A.B. 357).

Several key employment bills that remain pending are discussed below:

Additional Minimum Wage Increase (S.B. 3)

Even though California’s minimum wage is already scheduled to increase to $10 per hour on Jan. 1, 2016, S.B. 3 proposes several additional increases. Specifically, California’s minimum wage would increase to $11 per hour on Jan. 1, 2016, and to $13 per hour on July 1, 2017. After Jan. 1, 2019, the minimum wage would also be annually adjusted based on the California Consumer Price Index (CPI) and rounded to the nearest five cents.

Paid Sick Leave Usage for Child Care or School Emergencies (S.B. 579)

This bill would expand the state’s new paid-sick-leave law, due to go into effect on July 1, 2015, to cover leave for a “child care or school emergency.” A child care or school emergency would be defined as a situation in which a child cannot remain in a school or child care facility due to: (a) the illness of, or injury to, the child; (b) behavioral or discipline problems; (c) closure of the facility; or (d) a disaster or extreme weather conditions, including, but not limited to, fire, earthquake or flood.

Expansions to the California Family Rights Act (S.B. 406)

This bill proposes to materially expand the number of employers subject to the CFRA and to expand the bases for employee leave, thus potentially creating further differences between the CFRA and the federal Family and Medical Leave Act (FMLA). For instance, while the CFRA presently defines an employer as any entity with 50 or more employees, this bill would redefine employer as any entity with five or more employees.

This bill would also alter the definitions regarding the circumstances for which CFRA leave may be taken. For example, it would expand the definition of child to include children of a domestic partner or for persons to whom the employee stands in loco parentis, and would remove the current age (i.e., under 18 years old) and dependent-status restrictions. If adopted, CFRA leave would be permitted for the serious health condition of a child, as defined, regardless of age and, for adult children regardless of whether that child is dependent upon the employee. It would also expand the definition of parent to include parents-in-law.

While the CFRA presently authorizes employees to take leave for the serious health condition of a child, parent or spouse, this bill would expand this entitlement to include leave for the serious health condition of a grandparent, grandchild, sibling or domestic partner.

Prohibition Against Employers Advertising that Unemployed Applicants “Need Not Apply” (A.B. 676)

This bill responds to concerns about discrimination against the unemployed by limiting an employer’s ability to screen applicants based on their current employment status, in regards to an “individual’s present unemployment, regardless of length of time that the individual has been unemployed.” Specifically, beginning July 1, 2016, this bill would add new Labor Code Sections 1045 to 1048 to prohibit an employer, unless based upon a bona fide occupational qualification, from: 1) publishing advertisements suggesting an individual’s current employment is a job requirement; or 2) affirmatively asking an applicant to disclose orally or in writing his or her current employment status until the employer has determined that the applicant meets the minimum employment qualifications for the position, as stated in the published notice for the job.

FEHA to Permit Voluntary Veterans’ Preference in Hiring Decisions (A.B. 1383)

Entitled the Voluntary Veterans’ Preference Employment Policy Act, this bill attempts to address the higher-than-normal unemployment rate for returning veterans. Accordingly, new Government Code Section 12958 would authorize employers to extend a preference during hiring decisions to honorably discharged veterans. Section 12958 further specifies that such a preference shall be deemed not to violate any state or local equal employment opportunity law, including the FEHA.

Government Code Section 12940(a)(4) presently provides that using veteran status in favor of Vietnam-era veterans shall not constitute sex discrimination.

Accommodation Requests to Constitute Protected Legal Activity for Retaliation Purposes (A.B. 987)

The FEHA prohibits harassment and discrimination based on various protected classifications, and prohibits retaliation against employees who protest or oppose such unlawful employment practices. The FEHA also requires employers to reasonably accommodate an employee’s medical condition or religious beliefs.

However, it has been unclear whether an individual who requests such accommodation may state a FEHA retaliation claim in addition to a failure to accommodate claim based upon such requests.

This bill would amend the FEHA to prohibit an employer or covered entity from retaliating or otherwise discriminating against a person for requesting accommodation for a disability or religious beliefs, regardless of whether the accommodation request was granted.

Arbitration Agreements Targeted (A.B. 465)

This bill would preclude employers from requiring employees to agree to arbitration as a condition of employment. It would create a new Labor Code section to provide that any waiver of rights, penalties, remedies, forums and procedures established by the Labor Code, including the right to file a claim with the Labor Commissioner or a civil action in court, may not be required as a condition of employment.

It would further prohibit employers from threatening, retaliating or discriminating against any person who refuses to waive such rights, and, in addition to any other legal remedy, would impose a civil penalty of up to $10,000 per individual for each violation of this section, plus reasonable attorney’s fees.

Workplace Prohibition on Smoking to Include Electronic Cigarettes (S.B. 140)

Labor Code Section 6404.5 presently prohibits smoking of “tobacco products” in all enclosed areas of employment. This bill would amend California’s definition of tobacco product to include various different types of tobacco, regardless of how consumed, including chewing tobacco, snuff, or “electronic devices that deliver nicotine or other substance to the person inhaling the device, including but not limited to any electronic cigarette, cigar, pipe or hookah.”

Michael Kalt, an attorney at Wilson Turner Kosmo in San Diego, serves as the government affairs director for CalSHRM, the California State Council of the Society for Human Resource Management.

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