California Employers Should Be Following These Bills

September 20, 2021
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​The California Legislature had until Sept. 10 to consider bills—and state lawmakers sent several employment-related proposals to the governor's desk. Here are some key bills that employers should be watching.

Bills Limited During Pandemic

"Legislative leadership placed limits on how many bills members could advance this year—12 bills—in light of the pandemic, so we saw less labor and employment bills than we see in a normal legislative year in California," observed Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento, Calif.

"Despite the fact that bill numbers were limited, California continues to push the envelope when it comes to labor and employment legislation," he said.

Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and director of government affairs for California State Council of SHRM (CalSHRM), explained that two of the bigger employment-related bills already took effect earlier this year:

Gov. Gavin Newsom has until Oct. 10 to sign or veto remaining bills.

Cal/OSHA Workplace Safety Enforcement

SB 606 would expand enforcement power for the California Division of Occupational Safety and Health (which is known as Cal/OSHA). The bill would create a rebuttable presumption that employers with multiple worksites have made enterprise-wide workplace safety violations in certain circumstances. The proposed law also would allow Cal/OSHA to issue a citation to an "egregious" employer for each willful violation. SB 606 "would require each instance of an employee exposed to that violation to be considered a separate violation for purposes of the issuance of fines and penalties," according to the bill.

"The bill would also provide Cal/OSHA with additional subpoena power during investigations," noted law firm Ogletree Deakins. The firm said Newsom is expected to sign the bill. (Update: Newsom signed this bill into law on Sept. 27).

Ban on Nondisclosures in Harassment and Bias Cases

California law currently bans nondisclosure agreements in sexual-harassment and sex-discrimination settlements. SB 331 would extend the ban to all forms of prohibited discrimination and harassment and require that certain language be included in settlement and severance agreements.

Veterans Preference in Hiring Decisions

SB 665 made it to the governor's desk on the fourth try, Kalt noted. The bill would allow private employers to establish a written policy giving a voluntary preference for hiring veterans over other qualified applicants. The bill states that the policy must be "applied uniformly to hiring decisions."

Kalt noted that CalSHRM sponsored this bill and is "thrilled" that the proposed legislation made it to the governor's desk.

Warehouse Production Quotas

AB 701 would regulate production quotas in warehouses and require Cal/OSHA to establish a new standard for production work in warehouse distribution centers. The proposed legislation would "provide that an employee shall not be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws," according to the bill. Among other rules, the bill would designate as "productive time" any time employees spend taking action to comply with occupational health and safety laws. (Update: Newsom signed this bill into law on Sept. 22).

Wage Theft Punishable as Grand Theft

Currently, certain violations of wage and gratuity laws in California are considered misdemeanors, and employers can be responsible for paying civil fines and lost wages. AB 1003 would make intentional wage theft punishable as a grand-theft crime. "Existing law defines the crime of grand theft as theft committed when the money, labor, or real or personal property taken is of a value exceeding $950," according to the bill. "Under existing law, grand theft is generally punishable either as a misdemeanor by imprisonment in a county jail for up to one year or as a felony by imprisonment in county jail for 16 months or two or three years."

Retaining Employees of Hotel Contractors

AB 1074 would extend certain job protections for janitorial and building maintenance workers to hotel workers under the Displaced Janitor and Hotel Worker Opportunity Act. The bill would require an employer who contracts for hotel services to retain employees of a prior contractor.

'Card-Check' Union Recognition for Farmworkers

AB 616 would allow for "card-check" union recognition for farmworkers under the Agricultural Labor Relations Act. Under the card-check method, employees can approve union representation when the majority of employees in the bargaining unit sign authorization forms. The proposal would "refer to the secret ballot election as a polling place election," according to the bill. "This bill would also permit agricultural employees, as an alternative election procedure, to select their labor representatives through a representation ballot card election by submitting a petition to the board supported by representation ballot cards signed by a majority of employees in the bargaining unit." (Update: Newsom vetoed this bill on Sept. 22).

Looking Ahead

"The pandemic continued to be top of mind for legislators," Ebbink said. "Toward the end of session, the issues of vaccine mandates and potential extension of COVID-19 Supplemental Paid Sick Leave were topics of discussion, and there were efforts to address those issues in last-minute bills."

While those efforts ran out of time, he said, they likely will be hot topics for discussion when the legislature returns in January. "Many bills—including proposals to expand paid sick leave and family and medical leave and to address accommodation of cannabis use—were set aside this year in light of the limitation imposed by legislative leadership but are sure to be back next year."

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