Special bulletin on new legislation affecting California workplaces
 Oct. 31, 2013

The California legislature has been busy again this year, passing over 400 new laws that affect every aspect of life in California. This includes the workplace, where there are a variety of new labor and employment laws that will impact even the smallest employers. Some will require modifications or updates to Employee Handbooks, while others will affect payroll processing, wage policies and procedures. Here is a brief summary of employment laws that Governor Brown has signed. Most will take effect January 1, 2013, except where specifically noted.

New Discrimination, Harassment and Retaliation Laws

Assembly Bill (AB) 556: This amends the California Fair Employment & Housing Act (FEHA), which applies to organizations with five (5) or more employees. It adds "military and veteran status" to the list of "protected classes," which are the categories of individuals who are protected from employment discrimination and/or harassment. This amendment does not replace (or affect) independent federal and state laws governing leaves of absence for employees who are serving in the military. The impact of this amendment is to add the same protections against discrimination in recruiting, hiring, terms and conditions of employment, discipline and termination as other protected characteristics such as gender, race, religion, national origin, age and disability. This gives individuals who are denied an equal employment opportunity due to their military or veteran status an avenue for a civil lawsuit seeking damages. The new law provides an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding a veteran's preference as permitted by law.

Senate Bill (SB) 292: This also amends the FEHA to clarify that sexual harassment claims do not require a showing of sexual desire by the harasser(s). The amendment was spurred by the result in Kelley vs. The Conco Companies in 2011. In that case, an apprentice ironworker was repeatedly subjected to sexually demeaning comments by his male supervisor and co-workers. A California appeals court threw out his FEHA lawsuit, holding that although the verbal abuse was crude, it was not motivated by actual sexual desire or intent. The FEHA amendment now provides that sexually explicit commentary, graphic teasing, taunting or provocative innuendo can be actionable harassment, even when the individual "harassers" are not motivated by sexual interest or desire.

SB 400: Currently, Labor Code §230 and §230.1 protect victims of domestic violence and sexual assault, including prohibiting employers from taking adverse employment action against individuals who take time off to attend to issues arising from domestic violence. SB 400 extends these protections to victims of stalking. In addition to prohibiting discrimination or retaliation against employees who've been abused, it will require employers to provide reasonable accommodations to employees who are being subjected to relationship violence or stalking, which may include implementing safety measures such as a transfer or reassignment or modified schedule, a changed work telephone or workstation, the installation of a lock, or assistance in documenting the stalking, or changing their work telephone number, It would also create a private right of action for an employee to seek enforcement of victim status protection and reasonable accommodation provisions. This is essentially a new reasonable accommodation standard. And this is in addition to the job protected leaves.

SB 666/AB 236: These companion bills amend Labor Code §98.6 to make clear that written or oral complaints regarding wages an employee believes are owed him/her are protected activities for purposes of the prohibition on retaliation against an employee for engaging in "protected conduct." These bills also make clear that an employee may, but is not required to; exhaust administrative remedies before filing a lawsuit. The bills also add section §1019 to the Labor Code, delineating certain unfair and unlawful immigration-related practices. "Unfair immigration practices" may now include requesting more or different documents of an applicant than are allowed under federal I-9 rules; refusing to honor documents that appear genuine on their face; using the federal E-verify program to check authorization status of a person at a time or in a manner not required or authorized under the program procedures; and threatening to file or filing a false police report. The new law also prohibits retaliation against applicants/employees who complain about the employer's non-compliance with these?provisions and/or inform others of their rights in this regard, or who even seek information from the employer about its compliance. The new law would provide a rebuttable presumption that adverse action taken against an employee within 90 days of such protected activity is retaliatory. This will make it tricky to address work eligibility issues should they first become known following the employee's exercise of protected activity.

Related non workplace bill affecting employers: Extortion as a Crime for threatening to report immigration status. This is an amendment to the Penal Code addressing criminal acts, so it isn't an employment law requirement. However, it could theoretically be used against any person who actually threatens to expose the immigration status of another person, even in the employment context. This bill amends Penal Code §515, to provide that a threat to report the immigration status or suspected immigration status of the threatened individual, or his or her relative or a member of his or her family, may also induce fear sufficient to constitute extortion. While it isn't an employment law

New Leaves of Absence

AB 11: This is an amendment to the California Labor Code mandating temporary leaves of absence for firefighters, reserve peace officers, and emergency rescue personnel (Labor Code §230.4). It will require employers with at least 50 employees to provide temporary leaves of absence of up to 14 days per calendar year to employees who serve as volunteer firefighters, reserve peace officers or emergency rescue personnel for the purpose of engaging in fire, law enforcement or emergency rescue training. The prior Labor Code applied only to volunteer firefighters and did not cover "emergency rescue training." Under the new law, employers are prohibited from discharging, demoting, suspending or otherwise discriminating against employees who take time off to engage in fire, law enforcement, or emergency rescue training. Aggrieved employees may file a complaint with the Labor Commissioner and get reinstatement, lost wages and work benefits for violations.

SB 462: This bill restricts the award of attorney fees to employers who prevail in wage claim cases. Effective January 1, 2014, employers will have to show that workers sued "in bad faith" over nonpayment of wages, benefits or pension contributions to secure attorney fees and costs. AB 10: This bill raises California's minimum wage in two $1 increments: from the current $8 per hour to $9 per hour on July 1, 2014, and from $9 per hour to $10 per hour on January 1, 2016.

AB 241: The new law requires that employers pay their domestic employees time and a half for each hour worked beyond nine hours in one day or 45 hours in one week. The law applies to all employees engaged in "domestic work" including nannies, housekeepers, and those who provide care for people with disabilities. The law contains a babysitter exemption for workers who care for a child on an intermittent basis.

SB 390: Amends Labor Code §227 to make it a crime for an employer to fail to remit withholdings from an employee's wages that were made pursuant to state, local, or federal law; and would prescribe how recovered withholdings or court-imposed restitution, if any, are to be forwarded or paid. AB 1000: Clarifies an ambiguity in existing law, so that physical therapists can continue to work within the legal boundaries of medical corporations. The bill also allows physical therapists to treat patients for 45 calendar business days, or 12 visits, without first seeing a physician. The bill will require physical therapists to refer patients to a physician to ensure there is no underlying medical condition if the therapy extends beyond 45 calendar days or 12 visits, whichever comes first. This may affect who can provide work restrictions for an individual employee in the context of a request for reasonable accommodation in employment.

Recommended Action

All California employers, regardless of size, should review your Employee Handbooks to assure that they are updated in time for your organization to achieve compliance with these new standards. Review your recruiting, hiring, performance management, discipline, leave of absence and reasonable accommodation policies to assure that you are operating in step with these expanded standards. Additionally, in the last two successive legislative years, California law has expanded protections for employees and applicants based on gender identity and expression, reasonable accommodations for religious dress and grooming practices, reasonable accommodations for nursing mothers, limitations on background and credit checks and protections for genetic information and medical privacy. If your policies haven't been updated for two years or more, now is the time to do so.

For labor, employment and education law questions, call us at (602) 448-4051 or email to PEyres@Eyreslaw.com Our Business is Keeping Your Business Out of Court TMİ 2013 Proactive Law Press, LLC. Licensed to Eyres Law Group, LLP

Patricia S. Eyres (Patti) is Managing Partner of Eyres Law Group, LLP. She is a Phi Beta Kappa graduate of Stanford University and earned her law degree from Loyola Law School, cum laude in 1977. Patti calls herself a "recovering litigator," who knows first-hand the value of paying attention to prevention. After spending 18 years devoted exclusively to defending companies in the courtroom, she resolved to help business leaders recognize potential legal landmines before they explode into lawsuits. She brings a unique and practical perspective to the critical legal issues impacting the workplace. As CEO/Publisher of Proactive Law Press, LLC, , Eyres supervises the production and publication of books, training materials and educational products for business owners, public school administrators, front-line leaders, HR and Risk Managers. She can be reached at peyres@eyreslaw.com or 480-607-5847.

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