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January 2015

New Year’s Resolution for 2015: Understand California’s New Employment Laws

January 1, 2015 finds California’s employers subject to several new laws that will dramatically affect businesses in the state. California employers are advised to review the new laws below and work with legal counsel to implement these new changes and other changes that went into effect on January 1, 2015. Attorneys in Gordon & Rees’ Labor & Employment Practice Group are available to assist employers with any questions or concerns about the new laws.

AB 1443 Adds Protections to Unpaid Interns and Volunteers

This law added unpaid interns and volunteers to the list of individuals protected from harassment under California’s Fair Employment and Housing Act (“FEHA”). As a part of these new protections, the law now prohibits employers from discriminating against individuals who are in an unpaid internship or similar program. AB 1443 also amended California law to extend religious belief protections and religious accommodation requirements to anyone in an unpaid internship or similar program. These changes are effective as of January 1, 2015.

AB 1522 Provides Paid Time Off to California Employees

AB 1522, or the Health Workplaces, Healthy Families Act of 2014, presents a dramatic new law for employers. This law requires employers to provide paid sick leave to any employee who worked in California for 30 days. Employees accrue this paid sick leave at a rate of one hour for every 30 hours worked.

The law allows employers to limit an employee’s use of paid sick leave to the equivalent of three days (24 hours) in each year of employment. Employers may also put a maximum total accrual of 48 hours, or six days. Although July 1, 2015 is the effective date for employers to begin providing the paid sick leave benefit, we recommend that employers revisit their sick leave and paid time off policies well in advance.

The law also contains several provisions that went into effect on January 1, 2015, including specific notice, posting, and record-keeping requirements. Employers are encouraged to work with legal counsel to determine their obligations under this new, complicated law.

AB 1660 Prohibits Discrimination Against Holders of Driver’s Licenses Issued to Undocumented Persons

California law (AB 60) now requires the Department of Motor Vehicles to issue a driver’s license to individuals who are unable to submit satisfactory proof of their lawful presence in the United States. AB 1660 makes it a violation of FEHA for an employer to discriminate against individuals who hold an “AB 60” license. The law now considers any such act to constitute national origin discrimination under FEHA. Under AB 1660, it is also a violation of FEHA for an employer to require a person to present a driver’s license unless possessing a driver’s license is (1) required by law; or (2) required by the employer and the employer’s requirement is otherwise permitted by law. AB 1660 also provides that an employer does not violate California law if it takes action required to comply with federal I-9 verification requirements under federal law. Finally, AB 1660 requires employers to treat driver’s license information they obtain as private and confidential materials. These changes are effective as of January 1, 2015.

AB 1792 Prohibits Discrimination Against Participants in the Medi-Cal Program

Among other things, AB 1792 prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who enrolls in the Medi-Cal program and from refusing to hire a Medi-Cal beneficiary. This bill also prohibits an employer from disclosing to any person or entity that an employee receives or is applying for public benefits, unless authorized by state or federal law. These changes are effective as of January 1, 2015.

AB 1897 Imposes Liability on Employers Who Contract for Labor

California law now imposes liability on employers if their labor contractor fails to properly pay its workers or fails to provide workers’ compensation coverage for employees. The bill also prohibits employers from shifting its workplace safety responsibilities to their labor contractors. Although the law is intended to hold employers accountable for certain violations when they use staffing agencies or other labor contractors to supply workers, it does not prevent employers or labor contractors from entering into a contract for indemnification for failure to pay wages or secure workers’ compensation coverage. This law does not apply to all employers and contains many nuances. These changes are effective as of January 1, 2015.

AB 2053 Mandates Training on “Abusive Conduct”

California has taken another step towards addressing workplace bullying. Although AB 2053 does not outlaw workplace bullying, it does require employers already subject to mandatory sexual harassment training to include training on the prevention of “abusive conduct.” This law defines “abusive conduct” as “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.” AB 2053 stopped short of allowing employees to sue for “abusive conduct.” However, employees can sue under other laws if the “abusive conduct” becomes discrimination or harassment. These changes are effective as of January 1, 2015.

AB 2536 Expands Protections for Employees Who Take Time Off to Perform Emergency Duty

AB 2536 added new personnel to the list of employees eligible for protected leave for emergency duty. Employers are encouraged to review their leave policies and employee handbooks to ensure that they reflect AB 2536, which went into effect on January 1, 2015.

AB 2571 Expands the Definition of “Unfair Immigration-Related Practice”

Previously, California law prohibited certain “Unfair Immigration-Related Practices,” including threatening to file or filing a false report or complaint with the police. AB 2571 now includes threatening to file or filing a false report or complaint with any state or federal agency to the list of “Unfair Immigration Related Practices.”

AB 2571 also clarified that employers cannot discriminate or retaliate against employees who update their personal information “based on a lawful change in name, social security number, or federal employment authorization document.” This law has understandably created confusion about whether employers can terminate or otherwise discipline an employee who previously provided false or misleading information about their identity. Accordingly, employees are advised to consult with legal counsel before taking any action against employees who attempt to update their personal information, especially under circumstances that suggest the employee was not authorized to live or work in the United States at the time of hire. These changes are effective as of January 1, 2015.

Miscellaneous Bills

In addition to these laws, California also added several new laws that affect employers in certain industries or made nuanced changes to existing law. For example, SB 1087 addresses sexual harassment training and licensing for farm labor contractors. SB 1360 clarifies that recovery periods to prevent heat illness are paid breaks. AB 1723 provides a new mechanism for the Labor Commissioner to enforce existing waiting time penalties. AB 2734 provides waiting time penalties to certain unionized theatrical and concert venue employees. AB 2751 amends existing law to clarify which employees can receive a $10,000 penalty against an employer who retaliated against them for complaining about Labor Code violations. AB 2074 clarifies the statute of limitations (three years) for lawsuits seeking to recover liquidated damages for minimum wage violations. AB 2288 provides additional penalties for violations of California’s child labor laws. SB 477 applies to employers who use foreign labor contractors to provide workers in California.

There are also several bills that address prevailing wages in public works projects (AB 26, 1870, 1939, 2272, 2744, and SB 266). AB 1650 addresses the collection of an applicant’s criminal history, but this law only applies to contractors who bid on certain state construction contracts. AB 1852 also addresses business policies relating to criminal background checks, but only for business that provide enumerated services to minors. AB 1634, 326, and SB 1299 address various aspects of workplace safety. AB 1035, 1746, and 2732 address workers’ compensation issues. Finally, AB 1556, 1083, and SB 1314 address narrow aspects of unemployment insurance.

Should you have any questions, please contact Gordon & Rees for assistance.

Employment Law

Employment Law