New Employment Legislation for 2014
By Shane Cahill and Douglas Melton
Even more than usual, this New Year brings new legislation affecting California employers. Below is a summary of the new laws likely to impact your business in 2014.
Assembly Bill No. 10: Effective July 1, 2014, California’s minimum wage will increase from $8 to $9 per hour. California’s minimum wage will increase again to $10 per hour on January 1, 2016. To meet the new salary requirement for exempt status in California, an employee’s annual salary must be at least $37,440 (double the minimum wage) starting on July 1, 2014, and at least $41,600 starting on January 1, 2016. (For San Francisco employers, minimum wage increases from $10.55 to $10.74 per hour effective January 1, 2014. For San Jose employers, minimum wage increases from $10.00 to $10.15 per hour effective January 1, 2014.)
Assembly Bill No. 241: This bill adds a new Labor Code section 1540, which enacts the Domestic Worker Bill of Rights, and entitles “domestic workers” to overtime pay for all work over 9 hours in one work day or 45 hours in one work week. Domestic workers include caregivers and housekeepers in private households, but not workers in facilities that provide boarding in connection with medical, nursing, convalescent, aged, or child care.
Assembly Bill No. 442: Employers who fail to comply with minimum wage laws now face liquidated penalties for unpaid wages up to the full amount of the unpaid wages (i.e., double damages), plus interest, in addition to penalties and damages the employer may owe under existing law.
Assembly Bill No. 263: This bill expands the protections afforded to employees who complain about unpaid wages by expressly prohibiting employers from retaliating against complaining employees. The bill entitles harmed employees to reinstatement and reimbursement for lost wages and subjects employers that engage in misconduct to a civil penalty of up to $10,000 per violation.
Assembly Bill No. 1386: Under this bill, the Labor Commissioner may obtain liens against an employer’s property for unpaid wages by filing a final wage order with the county recorder of any county in which the employer’s property may be located within 10 days of the order becoming final.
Senate Bill No. 435: Under existing Cal/OSHA regulations, employers must take “cooling measures” – provide shade to employees for periods of no less than five minutes at a time as needed – when employees work outdoors in temperatures exceeding 85 degrees. Under SB 435 employees are entitled to one hour of “premium” pay for each day they are denied a “recovery period.” In this respect, SB 435 equates “recovery periods” to meal periods and rest breaks.
Senate Bill No. 462: Under this bill, employers that prevail in wage-and-hour actions will only be entitled to recover attorneys’ fees upon a Court determination that the employee’s claim was brought in bad faith.
Senate Bill No. 390: This bill makes it a crime for an employer to willfully (or with the intent to defraud) fail to remit withholdings from an employee’s wages that were made pursuant to state, local, or federal law. Punishment varies depending on the amount at issue, but may include a fine of not more than $1,000 and/or imprisonment in county jail for not more than one year.
Prevailing Wages: Employers who provide services or construction work to governmental entities must pay their employees a statutorily determined prevailing wage. A number of new bills affect existing prevailing-wage laws, including Assembly Bill No. 1336 and Senate Bill Nos. 7, 54, 377, and 776. Contact Long & Levit’s Employment Law Group if you have questions about the application of these new laws to your business.
Discrimination, Harassment, and Retaliation Law
Assembly Bill No. 556: This bill amends the California Fair Employment and Housing Act (“FEHA”) to prohibit discrimination based on “military and veteran status.” (The bill provides an exemption for government employer inquiries into military or veteran status for the purpose of awarding a “veterans’ preference” as permitted by law.)
Senate Bill No. 292: This bill specifies that sexually harassing conduct need not be motivated by sexual desire for it to amount to unlawful sexual harassment.
Senate Bill No. 496: Current Labor Code section 1102.5(a), (b) prohibits actions to prevent employees from reporting violations of law to a government agency, and prohibits retaliation against employees who have made such external reports. SB 496 expands these whistle-blower protections by: (1) prohibiting employers from adopting any rule or policy preventing an employee from disclosing reasonably-believed violations of law or regulations to a person with authority over the employee or to another employee who has authority to investigate, discover, or correct the violation or noncompliance, regardless of whether disclosing the information is part of the employee’s job duties; (2) preventing retaliation against an employee because the employer believes that the employee disclosed or may disclose information to a government or law enforcement agency or to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance; and (3) making it illegal to take specified actions designed to prevent an employee from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry where the employee reasonably believes the information or testimony discloses a violation of law or a regulation, and prohibits retaliation against an employee who provides such information or testimony.
Assembly Bill No. 263: This bill creates new Labor Code section 1019, which makes it unlawful for an employer to engage in an “unfair immigration-related” practice against a worker in retaliation for exercising a legal right. The Legislature’s declaration of purpose for AB 263 explains its motivation: “[l]ow-wage, often immigrant, workers are the most frequent victims of wage theft and are also exposed to the greatest hazards at work …. Far too often, when workers come forward to expose unfair, unsafe, or illegal conditions, they face retaliation from the employer …. Where there are immigrant workers involved, employer retaliation often involves threats to contact law enforcement agencies, including immigration enforcement agencies, if a worker engages in protected conduct.”
If taken for a retaliatory purpose, conduct that amounts to an “unfair immigration-related” practice may include refusal to honor immigration documents that appear facially valid, misuse of the federal E-Verify System (e.g., random verification of immigration status), threating to file or filing false police reports, and threatening to contact or contacting immigration authorities. Employers who engage in unfair immigration practices face penalties and damages in a civil action. This bill also prohibits employers from discriminating or retaliating against an employee because the employee updates or attempts to update his/her personal information.
Assembly Bill No. 524: This bill expands the definition of criminal extortion to include, in certain circumstances, threats to report the immigration status or suspected immigration status of an individual or the individual’s family member.
Senate Bill No. 666: This bill creates a new Labor Code section 244. Under this new section, it is not necessary for an employee to exhaust administrative remedies in order to bring a civil action for violation of any provision of the Labor Code unless the section under which the action is brought expressly requires exhaustion of an administrative remedy. This will make it easier for lawsuits to be filed against employers.
SB 666 also makes reporting, or threatening to report, an employee’s suspected citizenship or immigration status (or that of an employee’s family member) to a federal, state, or local agency, because the employee exercises a right, a prohibited “adverse action.”
Leaves of Absence and Benefits
Senate Bill No. 288: This bill prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of certain crimes for taking time off from work to appear in court at proceedings related to the crime. The bill applies to victims of vehicular manslaughter, child abuse, domestic violence, physical abuse of an elder or dependent adult, stalking, and similar crimes.
Senate Bill No. 400: This bill extends protections to victims of domestic violence, sexual assault, and stalking. It prohibits employers from discriminating or retaliating against employees because of their status as victims or for taking time off to appear at legal proceedings, to obtain medical/mental health treatment, or for safety planning (provided the employer has more than 25 employees).
This bill also requires employers to engage such employees in the interactive process and provide reasonable accommodations to the extent possible without undue hardship.
Reasonable accommodations may include the implementation of safety measures, including:
Employers may require certification of a victim’s status.
Assembly Bill No. 11: This bill requires employers with 50 or more employees to provide employees who are reserve peace officers and emergency rescue personnel a temporary leave of absence of up to 14 days per calendar year for training.
Senate Bill No. 770: Beginning July 1, 2014, this bill expands Paid Family Leave wage-replacement benefits for employees to include benefits for time taken off to care for a seriously ill grandparent, grandchild, sibling, or parent-in law.
San Francisco Family-Friendly Workplace Ordinance: This ordinance requires San Francisco employers to consider requests for “flexible or predictable working arrangements to assist with care giving responsibilities.” For a complete description of San Francisco employers’ obligations under this ordinance, click here [link to Doug Melton’s article at https://www.longlevit.com/publications/san-francisco-passes-the-family-friendly-workplace-ordinance-which-formalizes-employees-right-to-request-flexible-or-predictable-working-arrangements-to-assist-with-family-caregiving-respons/].
Senate Bill No. 530: This bill amends existing law to prohibit an employer from considering as a condition of employment, or asking an applicant to disclose information concerning, criminal convictions that have been dismissed, expunged, or sealed. The bill includes exceptions for such inquiries to the extent (1) required by law, (2) the employee or applicant will be required to possess or use firearms, (3) the individual convicted is prohibited by law from holding the position sought, or (4) the employer is prohibited by law from hiring an applicant convicted of a crime.
DOCS-#693876-v1-Employment_Law_Update_-_Wage-and-Hour_LawCalifornia Employers should review their impacted policies and procedures to ensure compliance with these new laws. If you have any questions about California’s new employment laws and how they might impact your business, contact our Employment Law Group.