March Madness: Pending California Employment Bills

by Mar 30, 2016Spring 2016

By: Robin E. Largent, Partner at Carothers, DiSante & Freudenberger LLP

Curious what the California Legislature is up to this legislative session?  As is the case every year, there are several employment-related bills that have been proposed and are pending.  As is also the case virtually every year, most of the proposed bills are bad for employers.  Here are some of the notable bills that California employers may want to watch:

The Good (the short list):

AB 1948 (limiting recovery for meal and rest break claims):  This bill would make the one hour of premium pay owed for a missed meal or rest break a penalty for statute of limitations purposes and would make it the sole penalty recoverable by an employee for a meal or rest break violation.  If passed, this would reduce the period of recovery from 3 (really 4) years to 1 year, and would prevent stacking of penalties (e.g. under Labor Code section 203, 558, 2699) for the same violation). 

AB 2461-2465 (PAGA reforms):  These bills collectively aim to reform PAGA in a variety of ways intended to cure PAGA abuse and reduce the flood of PAGA litigation.  AB 2462 would provide employers with a broader right to cure violations before an employee could bring a PAGA claim in court.  AB 2461 would limit the types of violations on which a PAGA claim could be based and would require employees to follow specified procedures before bringing an action.  AB 2463 would impose a cap of $1,000 in penalties for each aggrieved employee.  AB 2464 would allow a court to dismiss a PAGA claim if it finds that the allegedly aggrieved employee suffered no appreciable physical or economic harm.  Finally, AB 2465 would broaden an employee’s pre-filing exhaustion requirement.  Currently, an employee simply has to send a letter to the Labor Workforce Development Agency (LWDA) notifying the agency of the employer’s alleged Labor Code violations and then wait 33 days to proceed with filing a PAGA claim.  This bill would require the LWDA to actually investigate the alleged violations and determine if there is a reasonable basis for a civil action.  An employee could only proceed with a civil action upon receipt of a reasonable cause notice from the LWDA (or upon the LWDA’s failure to provide the prescribed notice within 120 days).

The Bad:

AB 67 (double time for work on Thanksgiving):  This bill would require retail store and grocery store employers with more than 500 employees to pay double time to employees who work on Thanksgiving.  This would not apply to exempt employees or to employees covered by collective bargaining agreements meeting specified conditions.

AB 908 (Increased EDD/Paid Family Leave Wage Replacement Benefits):  Under current law, California employees who are disabled from working and/or who need to take time off to bond with a new child or to care for a seriously ill family member are entitled to wage replacement benefits through the state.  These benefits generally provide wage replacement up to 55% of the employee’s regular compensation.  This bill would increase the benefit amount to up to 70% for lower wage earners and 60% for higher wage earners.  This bill would also eliminate the 7-day waiting period currently in place for receipt of paid family leave benefits.

AB 1676 (Inquiries Regarding Salary History):  This bill would prohibit employers from making oral or written inquiries about an applicant’s salary history.  It would also require private employers to provide an applicant with the pay scale for a position upon request.  If you’re experiencing déjà vu, that’s because Governor Brown vetoed a similar bill last year.

AB 2337 (Domestic Violence, Stalking, Sexual Assault):  Currently, California law prohibits employers with 25 or more employees from discriminating or retaliating against employees who take time off work for specified purposes related to being the victim of domestic violence, sexual assault, or stalking.  This bill would amend Labor Code section 230.1 to require that employers provide written notice of these rights to all new hires and, upon request, to current employees.

AB 2405 (Pay for School Activities Leave):  This bill would require employers (those with 25 or more employees) to provide up to 24 hours of paid leave to be used for purposes of school activities leave (Labor Code section 230.8).  California employers with 25 or more employees are already required to provide employees unpaid time off for this purpose, but this bill seeks to amend the statute to provide for paid time off for up to 24 hours.

AB 2261 (Expanded Labor Commissioner Power):  This bill would add section 98.74 to the Labor Code to allow the Labor Commissioner to conduct an investigation, issue citations, or bring a civil action against an employer for Labor Code violations, even if no employee has filed a complaint with the Labor Commissioner against the employer.

AB 2757 (Agricultural Workers/Wage and Hour):  Currently, agricultural employees are exempted from overtime, meal break, and certain other wage and hour requirements under Labor Code section 554.  This bill would eliminate that exemption and would phase in overtime obligations over the course of four years, beginning in 2017. 

SB 1001 (Expanding FEHA to Cover Employment Eligibility Verification Practices):  This bill would amend FEHA to add a new category of unlawful employment practices based on an employer requesting more or different documents than required under federal law for verification purposes, refusing to honor documents that appear reasonably genuine, discriminating against an immigrant with authorization to work based on having the status of immigrant, or attempting to reinvestigate or re-verify an incumbent employee’s authorization to work where not legally required to do so.

SB 1063 (Expanding Equal Pay Act to Preclude Race/Ethnicity Based Disparities):  This bill picks up where last year’s Equal Pay Act (strengthening prohibitions on gender-based pay differentials) left off by adding a new Labor Code provision precluding wage differentials based on race or ethnicity.  Although good in principal, the creation of a new statutory prohibition under the Labor Code provides more avenues for lawsuits when discriminatory employment practices are already covered by FEHA and its remedial provisions.

SB 1166 (Parental Leave):  This bill would require all California employers with 5 or more employees to provide up to 12 weeks of unpaid leave to an employee for purposes of bonding with a new child within the first year of the child’s birth, adoption, or foster care placement.  The employer would also be required to maintain the employee’s health benefits (on the same terms as if the employee was actively reporting to work) for up to 12 weeks.  California employers with 50 or more employees are already required to provide this leave under FMLA/CFRA to employees meeting minimum length and hours of service requirements.  This bill effectively would eviscerate the eligibility requirements for this type of leave that would otherwise apply under FMLA/CFRA and would make the leave mandate applicable to employers with less than 50 employees.

SB 1167 (Heat Illness Regs for Indoor Employees):  California presently has regulations requiring employers with employees working outdoors to have heat illness prevention procedures in place (e.g. providing shade, water, and cool-down recovery periods to employees).  This bill would require California’s Division of Occupational Safety and Health to craft similar standards for indoor workers.

For the full text of these bills and/or to check their status, click here.  

About the Editor

Attorney Robin Largent represents employers, including major food and retail companies, in all types of employment litigation: wrongful termination, retaliation, breach of contract, wage and hour (California Labor Code) and unfair competition. She also regularly counsels and advises California employers on issues of compliance with California and federal employment laws. > Contact   > Full Bio   Call 916.361.0991