So far, as the second year of a two-year California legislative session, 2014 has been more noteworthy for what hasn’t happened, than for what has. The legislature made no attempts to override any of the governor’s 2013 end-of-session vetoes. Rather, legislators have re-introduced bills to try again to pass them and get the governor’s signature, or to tweak previous unsuccessful proposals in an effort to win the governor’s approval.
To date, the interesting bills in private sector employment law include yet another proposal to increase the minimum wage (SB 935), another that would establish employees’ right to paid sick leave if they work as little as seven days a year in California (AB 1522), and a measure that would count the “cool-down” heat recovery periods (created by the recently amended Labor Code section 226.7; effective Jan. 1, 2014) as hours worked (AB 1360).
Feb. 21 was the deadline to introduce bills in the second year of this legislative session. Since the beginning of 2014, more than 1,800 bills have been introduced in the Assembly and Senate, adding to the more than 2,200 bills introduced in the first year of the 2013-14 session.
Two Democrats in the State Senate have been granted leaves of absence this year – one for felony perjury and voter fraud convictions, the other to prepare to respond to a federal criminal indictment for bribery, fraud, money laundering and other offenses. The loss of these two Democrats brings the majority party’s Senate membership to 25 – below the supermajority of 27 that allowed them to take some legislative actions without the support of any Senate Republicans.
The next major legislative deadlines in 2014 are May 9 (last day for policy committees to report to the floor non-fiscal bills introduced in their house), May 30 (last day to pass bills out of house of origin), July 3-August 4 (summer recess), Aug. 22 (last day to amend bills on the floor), and Aug. 31 (last day to pass bills; legislature recesses for year on adjournment).
2014 California Private Sector Workplace Legislation
Following is a listing of the currently pending major active bills relating to private sector employment law:
AB 1443 would provide that discrimination against any person in the selection or training of that person in an unpaid internship, or the harassment of an unpaid intern, on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, is an unlawful employment practice.
AB 1522 would provide that an employee, as defined, who works in California for seven or more days in a calendar year, is entitled to paid sick days to be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th calendar day of employment. The bill would require employers to provide paid sick days, upon the request of the employee, for diagnosis, care, or treatment of health conditions of the employee or an employee’s family member, or for leave related to domestic violence or sexual assault. An employer would be prohibited from discriminating or retaliating against an employee who requests paid sick days. The bill would require employers to satisfy specified posting and notice and recordkeeping requirements.
AB 1562 would designate an employee eligible for a leave of absence under the Moore-Brown-Roberti Family Rights Act as an entitled employee. The bill, applicable to public or private school employees, would require service of at least 60 percent of a full-time equivalent position during the previous 12-month period rather than the current requirement of 1,250 hours of service with the employer during the previous 12-month period.
AB 1634 would prohibit the stay of an abatement period during the pendency of an appeal to the Occupational Safety and Health Appeals Board of a citation for a violation that is classified as a serious violation, repeat serious violation, or willful serious violation. The bill would, however, authorize the division to stay these abatement periods, upon request, if the division determines that a stay will not adversely affect the health and safety of employees.
AB 1680 would require a person with a valid Child Performer Services Permit to include the permit number on advertising in print or electronic media, including, but not limited to, Internet websites, or in any other medium of casting advertising. The bill would prohibit the operator of an Internet website that posts casting advertisements from posting the advertisement of a person subject to the permit requirement unless the person has provided specified information to the operator to establish that the person is the recipient of a valid Child Performer Services Permit. AB 1741 would specify that a contractor, subcontractor, or surety engaged on a project for which prevailing wages must be paid may deposit the full amount of an assessment or notice with the Department of Industrial Relations in the form of cash or a bond.
AB 1870 would, if there are two or more approved multiemployer apprenticeship programs serving the same craft or trade and geographical area for which public works prevailing wage training contributions were made to council, require the grant to be divided among all the approved multiemployer apprenticeship programs serving the same craft or trade in California based on the number of apprentices registered in each program.
SB 266 (gutted and last amended Jan. 6) would require the body awarding the contract for public work to furnish, within 10 days after receipt of a written request from the Labor Commissioner, a copy of the valid notice of completion for the public work or a document evidencing the awarding body’s acceptance of the public work on a particular date, whichever occurs later, in accordance with specified provisions. The bill would require the awarding body to notify the appropriate office of the Labor Commissioner if, at the time of receipt of the Labor Commissioner’s written request, there has been no valid notice of completion filed by the awarding body in the office of the county recorder, and no document evidencing the awarding body’s acceptance of the public work on a particular date. If the awarding body fails to timely furnish the Labor Commissioner with the applicable document, the bill would require that the period for service of assessments be tolled until the Labor Commissioner’s receipt of the applicable document. The bill would also include legislative findings and declarations.
SB 477 (gutted and last amended Jan. 6) would, among other things, redefine a foreign labor contractor, require the contractor’s registration and posting of a surety bond with the Labor Commissioner, and require users of foreign labor contractors to make disclosures to the Labor Commissioner.
SB 935 would increase the minimum wage, on and after Jan. 1, 2015, to not less than $11 per hour, on and after Jan. 1, 2016, to not less than $12 per hour, and on and after Jan. 1, 2017, to not less than $13 per hour. The bill would further increase the minimum wage annually thereafter, to maintain employee purchasing power. The automatically adjusted minimum wage would be calculated using the California Consumer Price Index. The bill would prohibit the Industrial Welfare Commission from adjusting the minimum wage downward and from adjusting the minimum wage if the average percentage of inflation for the previous year was negative.
SB 1087 would, among other things, prohibit a license to operate as a farm labor contractor from being granted to a person who, within the preceding three years, has been found to have committed sexual harassment of an employee, would increase the license fee paid by an applicant from $500 to $600, would require the licensure exam to cover laws and regulations concerning sexual harassment in the workplace, would increase the amount of educational classes required of licensure applicants to 16 hours of classes and require that those classes include sexual harassment prevention training.
SB 1360 (introduced Feb. 21) would provide that a rest or recovery period mandated by state law, including, but not limited to, an applicable statute, or applicable regulation, standard, or order of the IWC, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, shall be counted as hours worked, for which there shall be no deduction from wages. The bill would declare that provision to be declaratory of existing law.
Proposed Amendments to California Family Rights Act Regulations
On Dec. 30, 2012, the California Department of Fair Employment and Housing (DFEH) finalized regulations related to California’s Pregnancy Disability Leave (PDL) law.
In reading together the California Family Rights Act (CFRA) law and regulations, as well as the PDL and regulations, there appeared to be a conflict created as to whether a California employer had to maintain health care benefits for a California employee disabled by pregnancy, who also took time off from work to bond with her child under Family and Medical Leave Act (FMLA) and/or CFRA, for a potential total of seven months (four months of PDL, and 12 weeks under FMLA/CFRA) or only four months.
The proposed regulations would change the CFRA regulations to conform with the changed PDL regulations, e.g., require an employer to maintain benefits for a woman disabled by pregnancy who also takes FMLA/CFRA time for baby bonding for up to seven months.
There will be public a hearing on the draft regulations on April 2 at UC Irvine and on June 2 in San Francisco. The comment period on the draft regulations closes on June 2, 2014.
The City of Los Angeles Moves to Restrict Vaping in its Workplaces
On March 4, 2014, the Los Angeles City Council unanimously passed a proposed ordinance (Council File: 13-1204-S1) which will ban the use of electronic cigarettes (e-cigarettes, “vaping”) in workplaces, bars, restaurants, and some other locations. If the proposed ordinance is signed by Mayor Eric Garcetti (who must act by March 17, 2014), it would take effect 30 days later.
Under state law, the sale of e-cigarettes to minors has been prohibited since September 2010.
In the current legislative session, there are at least two bills addressing the statewide use of e-cigarettes in the workplace and elsewhere.
Christopher E. Cobey is an attorney in San Jose, Calif., office of Littler Mendelson. Republished with permission. © 2014 Littler Mendelson. All rights reserved.
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