2016 California Legislative Update

Following are a few legal changes that you should be prepared for in 2016. Are you ready?

Time Off:

California Kin Care – SB 579 amended Labor Code Section 233 (“kin care provisions”) to align kin care with the state’s paid-sick-leave requirements, as stated in the Healthy Workplaces, Healthy Families Act. The Kin Care provisions require employers to allow employees to use one-half of their accrued sick leave to care for a “family member.” The law expands the definition of “family member” to include grandparents, grandchildren, and siblings. In addition, the law expands the use of sick leave for kin care for the purposes specified in the Healthy Workplaces, Healthy Families Act.

School Activities Leave – SB 579 amended Labor Code Section 230.8. Existing law prohibits an employer who employs 25 or more employees working at the same location from discharging or discriminating against an employee who is a parent, guardian, or grandparent having custody of a child in a licensed child day care facility or in kindergarten or grades 1 to 12, inclusive, for taking off up to 40 hours each year for the purpose of participating in school activities, subject to specified conditions.

SB579 revised references to a child day care facility to “child care provider.” The law has been expanded to address a child care provider emergency or a school emergency, as defined, and the finding, enrolling, or reenrolling of a child in a school or with a child care provider as activities for which a parent having custody of a child shall not be discriminated against or discharged, as described above. SB 579 also expanded the definition of “parent.”

Discrimination, Harassment, and Retaliation Protections

Fair Pay Act – SB 358 amended Labor code Section 1197.5. The Act prohibits an employer from paying any of its employees wages less than those paid to employees of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions. If there is a wage differential, then an employer must be able to show that it is based on one of the acceptable factors listed in the Act. See the Hot Topic previously published.

Retaliation – AB 1509 amended Labor Code Sections 98.6, 1102.5, 2810.3, and 6310. Existing law prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct, as specified in the law. This amendment extends these protections to an employee who is a family member of a person who engaged in, or was perceived to engage in, the protected conduct or made a complaint protected by these provisions.

Religious or Disability Accommodation – AB 987 amends Government Code Section 12940, the Fair Employment and Housing Act. Employers are prohibited from retaliating or otherwise discriminating against a person for requesting accommodation of a disability or religious beliefs, regardless of whether the request was granted.

Wage and Hour

Private Attorney General Act (PAGA) – AB 1506 amended Labor Code Sections 2699, 2699.3, and 2699.5. This law has already gone into effect. This law provides an employer with the right to cure a violation of the requirement that an employer provide its employees with the inclusive dates of the pay period and the name and address of the legal entity that is the employer before an employee may bring a civil action under the act. The law provides that a violation of that requirement shall only be considered cured upon a showing that the employer has provided a fully compliant, itemized wage statement to each aggrieved employee, as specified. The law will limit the employer’s right to cure with respect to alleged violations of these provisions to once in a 12-month period, as specified.

Employees Compensated on a Piece-Rate Basis – AB 1513 adds Labor Code Section 226.2. This law requires employees who are compensated on a piece-rate basis for any work during a pay period to be compensated for rest and recovery periods and other nonproductive time at or above specified minimum hourly rates, separately from any piece-rate compensation. The law defines “other nonproductive time” to mean time under the employer’s control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis. In addition, the law requires the itemized wage statements required by Section 226 provided to employees compensated on a piece-rate basis to separately state the total hours of compensable rest and recovery periods, the rate of compensation, and the gross wages paid for those periods during the pay period, and the total hours of other nonproductive time, as specified, the rate of compensation, and the gross wages paid for that time during the pay period.

The law, until January 1, 2021, provides that an employer shall have an affirmative defense to any claim or cause of action for recovery of wages, damages, liquidated damages, statutory penalties, or civil penalties based solely on the employer’s failure to timely pay the employee the compensation due for rest and recovery periods and other nonproductive time for time periods prior to and including December 31, 2015, if, by no later than December 15, 2016, the employer complies with specified requirements, subject to specified exceptions.

Health Care Employee Meal Periods – SB 327 clarifies that the health care employee meal period waiver provisions in existing wage orders are valid and enforceable. This law went into effect immediately. This legislation was adopted to remove any uncertainty caused by the decision in Gerard v. Orange Coast Mem. Med. Ctr., 234 Cal. App. 4th 285 (2015).

Labor Commissioner Expanded Enforcement Powers – SB 588 expands the Labor Commissioner’s enforcement authority. The law provides that any employer or other person acting on behalf of an employer who violates, or causes to be violated, any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission, or violates, or causes to be violated, other related provisions of law is authorized to be held liable as the employer for such violation. Among the many expanded enforcement powers is the authority of the Labor Commissioner to issue a notice of levy against an employer’s property for non-payment of judgment.

Labor Commission Can Enforce Local Laws AB 970 authorizes the Labor Commissioner to investigate and, upon a request from the local entity, to enforce local laws regarding overtime hours or minimum wage provisions and to issue citations and penalties for violations, except when the local entity has already issued a citation for the same violation. The law prohibits a local entity from issuing a citation to the employer if the Labor Commissioner has already issued a citation to that employer for the same violation.

Minimum WageJust as a reminder, minimum wage is increasing to $10.00 per hour effective January 1, 2016. This has several ramifications for employers. Employers must update posters and provide an updated Notice to Employees if their pay rate is impacted. In addition, the increase in minimum wage impacts the salary requirements for the “white collar” exemptions from overtime. Many cities have enacted their own minimum wage requirements so do not forget to check any city requirements as well.

Workers Compensation

New Notices – New regulations were issued recently that have impacted notices and forms. There is a new Claim Form and Notice of Potential Eligibility (DWC 1). In addition, there is a revised Notice to Employees poster.

Other Items of Note:

E-VerifyAB 622 expands the definition of an unlawful employment practice to prohibit an employer from using the E-Verify system at a time or in a manner not required by a specified federal law to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds. The law also requires an employer that uses the E-Verify system to provide to the affected employee any notification issued by the Social Security Administration or the United States Department of Homeland Security containing information specific to the employee’s E-Verify case or any tentative non-confirmation notice.

Cheerleaders are Employees AB 202 states that for state employment law purposes, cheerleaders who are utilized by a California-based professional sports team during its exhibitions, events, or games are to be deemed an employee.

Contact MSEC

If you have any questions about the above legislation or other matters in California then please contact your MSEC assigned staff or cainfo@msec.org. In the member section of the MSEC website there is also a California Toolkit with California resources.