Employment law at the State Capitol
 April 29, 2013

More than two dozen new bills are employment law related. Here are a few that could affect employers in 2013.

FEHA Sexual Harassment (SB 292) The Fair Employment & Housing Act (FEHA) prohibits harassment based on statutorily listed factors including "sex." SB 292 would expand the definition of "harassment because of sex" to include threats of sexual violence and to specify that an act is sexual harassment regardless of the sexual orientation, sexual desire or intent of the harasser.

FEHA Prohibitions on Military and Veteran Discrimination (AB 556) AB 556 would amend FEHA to add "military and veteran status" to the list of categories protected from discrimination. This would apply to members or veterans of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard and the California National Guard.

FEHA "Familial Status" Protection (SB 404) SB 404 would add "familial status" to the list of protected categories under FEHA for which the right to seek, obtain and hold employment cannot be denied. If enacted, "familial status” would be defined as “an individual who provides medical or supervisory care to a family member," with "family member" being broadly defined. A similar bill (AB 1999) failed to pass in 2012.

Military Leave for Domestic Partners (SB 358) Military and Veterans Code §395.10 requires employers with more than 25 workers to provide up to 10 days’ unpaid leave to the spouse of a qualified member of the armed forces or state militia during a military conflict, as defined. SB 358 would include the “domestic partner” of a qualified member of the armed forces or state militia within the definition of qualified employee for purposes of obtaining this leave.

Prohibition on Immigration-Related Retaliation Proposed (AB 263) Labor Code §1171.5 provides that all state and federal law remedies, except reinstatement when it is prohibited by federal law, are available to workers in California, regardless of their immigration status. It also prohibits inquiries into a worker's immigration status during any legal enforcement action except in very narrow circumstances. AB 263 would expand these protections and prohibit employers from directly or indirectly engaging in an “unfair immigration-related document practice" in retaliation against a worker who exercises any rights under California’s employment laws.

Annual Minimum-Wage Adjustments Proposed (AB 10) This bill would increase California's minimum wage for three consecutive years beginning in 2014, with annual adjustments tied to inflation. Specifically, minimum wage would go up to $8.25 on Jan. 1, 2014; to at least $8.75 in 2015; and to at least $9.25 in 2016. There would be annual adjustments beginning in 2017 to maintain employee purchasing power, based on California's Consumer Price Index.

Employee Decides Whether to Get Copy of or Inspect Payroll Records (AB 155) Labor Code Section 226 requires employers to provide itemized wage statements containing specific statutorily enumerated items, to maintain copies of these statements for three years at specific locations, and to permit current or former employees to inspect or obtain a copy of these payroll records. AB 155 would slightly amend Section 226 to specify that employees, not employers, decide whether they will inspect or copy, or receive a copy of, their employment records.

California Workplace Flexibility Act of 2013 (SB 607) California authorizes alternative workweek schedules under which nonexempt employees can work up to 10 hours a day without receiving overtime. But, it requires that 2/3 of the work-unit approval for such schedules. The "Workplace Flexibility Act of 2013" would permit an individual non exempt employee to request an employee-selected flexible work schedule of up to 10 hours a day within the 40-hour workweek and would allow the employer to implement this schedule without paying overtime. Employers would be required to pay overtime at the rate of one-and-a-half times the regular rate for daily hours worked in excess of 10 hours, and double time for more than 12 hours per workday and above eight hours on a fifth, sixth or seventh day in the workweek.

Limits on Attorney Fees for Prevailing Employers (AB 218.5) Labor Code Section 218.5 provides that a prevailing party in an action for the "nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions" is entitled to recover reasonable attorneys' fees. This statute does not impose different standards upon prevailing employees and employers who seek to recover such fees. However, AB 218.5 permit a prevailing employer to recover attorney fees and costs only if the court finds that the employee brought the action in “bad faith." This makes it consistent with FEHA, under which an employee may recover attorneys’ fees if s/he wins anything (even with a recovery less than originally sought), but a winning employer can only recover legal fees if the lawsuit was frivolous.

For labor, employment and education law questions, call us at (602) 448-4051 or email to PEyres@Eyreslaw.com

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