Summary of Recent California Employment Laws

By lfsuser on January 12, 2015

In keeping with the State of California’s reputation as an employee-friendly state, the California legislature has passed a series of new laws creating obligations for employers to comply with in 2014 and 2015. Below, we have outlined a list of key laws that employers should be aware of. Please note that this list is not exhaustive and it does not include a summary of the Mandatory Paid Sick Leave law (Healthy Workplaces, Health Families Act of 2014), which will be the subject of a forthcoming posting:

Contracting with Outside Companies for Workers (AB 1897)

Under AB 1897 and effective January 1, 2015, an employer with more than 25 employees or a business with more than five workers supplied by a labor contractor (i.e. temporary and other staffing agencies) can now be jointly liable with a labor contractor for any violations of wage and hour compensation. Employers should carefully review staffing agreements and other contracts they have entered into with labor contractors to ensure compliance. The new law does not allow employers to avoid joint liability through such agreements and contracts, but employers may enter into an indemnification agreement with the labor contractor in order to reduce some liability exposure.

Sexual Harassment Training Must Include Anti-Bullying Conduct Training (AB 2053)

Effective January 1, 2015, AB 2053 requires employers who are subject to the sexual harassment training requirements (i.e. employers with 50 or more workers) to “also include prevention of abusive conduct as a component of the training and education…” The law defines “abusive conduct” as follows:

“For purposes of this section, “abusive conduct” means conduct of an employer or employee in the workplace, 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.”

Employers May Now Report Occupational Injuries and Illnesses Via Email (AB 326)

AB 326 updates existing law that requires employers to immediately notify the Division of Occupational Safety and Health (DOSH) for any occupational injury or illness (or death) that results in lost time beyond the date of injury or illness, or which requires medical treatment beyond first aid. Effective January 1, 2015, the updated law now allows employers to notify DOSH via telephone or email (the prior law only allowed employers to notify DOSH via telephone or telegraph!). On the face of it, this law appears inconsequential, but employers should be aware that failure to comply with the reporting requirement will result in a $5,000 penalty.

Rest and Recovery Periods Constitute Paid Breaks (SB 1360)

SB 1360 clarifies that “recovery periods” for employees constitute paid breaks and they count toward hours worked. Under existing health and safety laws, employees engaged in outdoor occupations are entitled to paid “recovery periods” in certain situations in order to prevent heat-related illnesses.

Discrimination Against Employees with Undocumented Drivers’ License

Effective January 1, 2015, the Department of Motor Vehicles (DMV) may now issue a driver’s license to undocumented immigrants (i.e. those who are unable to submit proof that their presence in the U.S. is authorized under federal law) who apply for a driver’s license. Beginning January 1, 2015, the DMV will issue licenses to these individuals and mark them with the term “federal limits apply.” The law amends the California Fair Employment and Housing Act (FEHA) to make it illegal for an employer to discriminate against an individual if they present such a driver’s license for employment purposes. Further, the new law makes driver license information obtained by the employer “private and confidential.”

Increase of Minimum Wage to $9.00/hour (AB 10)

Effective July 1, 2014, California raised its minimum wage to $9.00 per hour. Effective January 1, 2016, the state will raise the minimum wage again to $10.00 per hour. The increase is particularly relevant to how it affects exempt employees. In order to maintain an exempt status, employees must earn a monthly salary of no less than two times the state minimum wage for full-time work. Employers should review their employees’ compensation levels to ensure compliance with exempt status requirements.

Retaliation for Oral or Written Complaints for Unpaid Wages (AB 263)

Employers are prohibited from retaliating against an employee for making an oral or written complaint that he or she is owed unpaid wages.

Criminal History Inquiries on Employment Applications and Background Checks (SB 530)

Subject to a few exceptions, employers may not inquire into or rely on criminal convictions that have been judicially dismissed or ordered sealed. Those exceptions include (1) when the employer is legally required to obtain criminal history information; (2) the applicant who is convicted of a crime is legally prohibited from holding the position sought; (3) the employer is legally prohibited from hiring an applicant convicted of a crime; and (4) the applicant is required to possess or use a firearm during the course of his or her employment.

Liquidated Damages for Failure to Pay Minimum Wage (AB 442)

Prior to the passage of AB 442, the Labor Commissioner could only recover liquidated damages for an employer’s failure to pay minimum wage through either a civil action or an administrative wage claim hearing. With the passage of the new law, the Labor Commissioner is now authorized to recover liquidated damages (and existing penalties) based on a citation for an employer’s failure to pay minimum wage.

Sexual Harassment Does Not Need to be Motivated by Sexual Desire (SB 292)

Prior to the passage of SB 292, a sexual harasser’s conduct needed to be motivated by sexual desire for the conduct to be unlawful. SB 292 amends sexual harassment law to encompass all types of sexual harassment (same-sex as well as opposite-sex). Sexual harassment is now defined as an activity that violates another person sexually, regardless of the sexual desire or orientation of the harasser.

Added Protected Categories Under the Fair Employment and Housing Act (AB 556 & AB 1443)

AB 556 added “military and veteran status” to the list of categories protected from employment discrimination, harassment, and retaliation under the Fair Employment and Housing Act (FEHA). However, the law carves out an exception for an inquiry by an employer regarding the military or veteran status for the purpose of awarding veterans’ preference points. AB 1443 further expands the protections of FEHA to include unpaid interns, volunteers, and other participants in training programs of limited durations.

Expanded Protection for Whistleblowers (SB 496)

SB 496 significantly alters California Labor Code Section 1102.5, California’s general whistleblower statute. Before the passage of SB 496, employers were already prohibited from retaliating against employees who reported reasonably-believed violations of state or federal laws or regulations. SB 496 extends this protection to employees who report reasonably-believed violations of local (as well as state and federal) laws, rules, or regulations. SB 496 also imposes liability on an employer if the employer believes the employee has disclosed or may disclose such information internally or externally.

This document is intended to provide you with general information about legal developments. The contents of this document are not intended to provide specific legal advice. If you have questions about the contents of this alert, please contact Hannibal Odisho at 415-697-3463 or at hodisho@aghwlaw.com. This communication may be considered advertising in some jurisdictions.