California's Legislature Considering Numerous Employment Bills

One bill would require almost all employers to provide 12-weeks of job-protected parental leave

By Michael S. Kalt Mar 1, 2016
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​​There are a number of significant employment-related bills under consideration in Sacramento, including bills that would:​​

  • Require almost all employers to provide 12 weeks of job-protected parental leave (Senate Bill [S.B.] 1166).
  • Expand California’s Fair Pay Act to target race or ethnicity-related differentials in wages (S.B. 1063).
  • Require employers to provide double pay for work performed on Thanksgiving Day (Assembly Bill [A.B.] 67).
  • Amend the Fair Employment and Housing Act (FEHA) to prohibit employment verification-related violations (S.B. 1001).
  • Authorize private employers to utilize a veterans’ preference policy during hiring (A.B. 1383).
  • Prohibit hiring-related inquiries concerning juvenile convictions (A.B. 1843).
  • Prohibit inquiries about salary history during the hiring process (A.B. 1676).
  • Substantially limit an employer’s exposure for meal, rest and recovery period violations (A.B. 1948).
  • Expand California’s heat illness regulations to be applicable to indoor employees (S.B. 1167).
  • Expand the workplace prohibitions against smoking, including to electronic cigarettes (A.B.x2 6, A.B.x2 7 and S.B.x2 6).

Parental Leave Protections (S.B. 1166)

This bill would require employers with five or more employees to provide up to 12 weeks of parental leave for an employee (male or female) to bond with a new child within one year of the child’s birth, adoption or foster care placement.

The California Family Rights Act (CFRA) already provides this protection to employees working for employers with more than 50 employees if they work 1,250 hours in the preceding 12 months. 

As with the CFRA, an employer must guarantee the employee reinstatement in the same or a comparable position. The bill would also authorize an employee to use accrued vacation pay, paid sick time, other accrued paid time off, or other paid or unpaid time off as negotiated with the employer during this parental leave. Employers would also be required to maintain and pay for medical coverage for an eligible employee who takes parental leave.

This parental leave would run concurrently with the CFRA and the Family and Medical Leave Act (FMLA), except for leave taken because of disability due to pregnancy, childbirth or a related medical condition. The aggregate amount of leave taken under this new section, the CFRA or the FMLA, or any combination (except for pregnancy/childbirth-related disabilities), shall not exceed 12 weeks in a 12-month period.

Equal Pay Regardless of Race or Ethnicity (S.B. 1063)

This bill would prohibit employers from paying an employee at a wage rate less than the rate paid to employees of another race or ethnicity for substantially similar work when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions.  

As with gender, the employer would bear the burden of demonstrating that the wage differential is based upon one or more of the following factors: (a) a seniority system; (b) a merit system; (c) a system that measures earnings by quantity or quality of production; or (d) a bona fide factor other than race or ethnicity, such as education, training or experience.

Double Pay on Thanksgiving Day (A.B. 67)

This bill would require certain large employers (with more than 500 employees) to pay nonexempt employees twice their regular rate of pay for working on Thanksgiving Day. Unlike last year’s version of the bill, which would have applied to almost all employers, this law would only apply to employees working in “retail store” or “grocery store” establishments.  

FEHA Prohibition on Eligibility Verification Violations (S.B. 1001)

This bill would amend FEHA to specify that it would be an unlawful employment practice for an employer to (a) request more or different documents than required under federal law for employment verification purposes; (b) to refuse to honor documents that appear reasonably genuine; (c) to discriminate against immigrants with authorization to work based upon their immigrant status or because of their work authorization; or (d) to attempt to reinvestigate or re-verify an incumbent employee’s authorization to work unless legally required to do so. 

Veterans’ Hiring Preference (A.B. 1383)

This bill would authorize employers to extend a preference during hiring decisions to honorably discharged veterans. This bill unanimously passed the Assembly and is pending in the Senate’s Judiciary Committee.  

Prohibition on Inquiring About Juvenile Court Actions (A.B. 1843)

California law prohibits employers from requiring applicants to disclose information concerning an arrest or detention that did not result in a conviction. Employers are also prohibited from using this as a factor in determining employment conditions. This bill would slightly expand this provision to also prohibit employers from inquiring about or using information related to specific juvenile court actions or custodial detentions.

Prohibitions on Salary History Questions During Hiring (A.B. 1676)

Citing a concern that salary history potentially institutionalizes prior discriminatory pay practices, this bill would add Labor Code section 432.3 to prohibit any employer from seeking salary history information about an applicant for employment. Gov. Jerry Brown vetoed a similar bill (A.B. 1017) in 2015. 

Meal, Rest and Recovery Period Caps (A.B. 1948)

Labor Code section 226.7 prohibits employers from requiring employees to work during a meal or rest or recovery period, and requires employers to pay a penalty of one additional hour at the employee’s regular rate for each type of violation per day of this provision. This bill would amend section 226.7 to specify that the one hour of the regular rate of pay shall be the entire penalty awarded for a violation of this section.

Heat Illness Prevention Regulations for Indoor Employees (S.B. 1167)

Since 2006, California’s Division of Occupational Safety and Health (DOSH) has adopted and enforced regulations establishing a heat illness prevention standard for outdoor workers.  This bill would require DOSH, by July 1, 2017, to propose for adoption a heat illness and injury prevention standard applicable to indoor workers that provides equal or greater protection than that for outdoor workers.  

Workplace Smoking Prohibitions Expansion (A.B.x2 6, A.B.x2 7 and S.B.x2 6)

Labor Code section 6404.5 prohibits smoking of tobacco products inside an enclosed space at a place of employment and enumerates fines for violations of these protections. A.B.x2 6 would amend this section to use the new definition of “smoking” (contained in the amended Business and Professions section 22950.5) that includes “the use of an electronic smoking device that creates an aerosol or vaper, in any manner or in any form, or the use of any oral smoking device for the purpose of circumventing the prohibition of smoking.”

The nearly identical A.B.x2 7 and S.B.x2 6 would expand these prohibitions to include “owner-operated businesses” (i.e., those with no employees and wherein the owner-operator is the only employee). They would also eliminate most of the specified exemptions that permit smoking in certain work environments, such as hotel lobbies, bars and taverns, banquet rooms, warehouse facilities, and employee break rooms.

Michael S. Kalt is a partner in the labor and employment practice group at Wilson Turner Kosmo in San Diego, and is also the government affairs director for CalSHRM. 

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