- Newly Enacted California Statutes
- November 7, 2013 | Author: Anthony J. Oncidi
- Law Firm: Proskauer Rose LLP - New York Office
Minimum Wage Increased to $10.00 Per Hour By 2016
The minimum wage will increase in California from $8.00 to $9.00 per hour on July 1, 2014 and to $10.00 per hour on January 1, 2016 (AB 10).
Employer Recovery of Attorney’s Fees Is Further Restricted
California has amended Cal. Lab. Code § 218.5 to limit the circumstances under which an employer may recover its attorney’s fees and costs as the prevailing party in a lawsuit in which an employee has sued for nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions (SB 462). Prior to enactment of Senate Bill 462, the prevailing party (either the employer or the employee) could seek recovery of his, her or its attorney’s fees and costs. As amended, the statute provides that “if the prevailing party in the court action is not an employee, attorney’s fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith.” Even before it was amended, Section 218.5, by its terms, did not apply to claims for which attorney’s fees are recoverable under Cal. Lab. Code § 1194 (e.g., claims to recover minimum wage or overtime compensation), and the California Supreme Court determined last year that Section 218.5 does not apply to claims brought for unpaid meal and rest breaks. See Kirby v. Immoos Fire Prot., Inc., 53 Cal. 4th 1244 (2012).
Military And Veteran Status Added To The Fair Employment And Housing Act
The Fair Employment and Housing Act has been amended to include a new category of employees who are protected from discrimination, harassment and retaliation - those who are either active military or veterans (AB 556).
Stalking And Crime Victims Given Greater Employment Protection
Under existing law, an employer may not take adverse employment action against a victim of domestic violence or sexual assault who takes time off from work to attend to issues arising as a result of the domestic violence or sexual assault, as long as the employee complies with certain conditions. These protections have been expanded to include victims of stalking; the law further prohibits discrimination and retaliation against and requires reasonable accommodation of victims of domestic violence, sexual assault or stalking (SB 400). Pursuant to another new law, victims of certain crimes may take time off from work to appear in a court proceeding in which a right of the victim is at issue (SB 288).
Paid Family Leave Extended
California’s Paid Family Leave law has been expanded to include partial replacement of wages for time off for employees to take care of seriously ill grandparents, grandchildren, siblings and parents-in-law (SB 770).
Reserve Peace Officers And Emergency Rescue Personnel
May Take Temporary Leaves Of Absence For Training
Like volunteer firefighters, reserve peace officers and emergency rescue personnel will be able to take temporary leaves of absence (up to 14 days annually) for training purposes (AB 11).
Employers May Not Inquire About Judicially Dismissed Criminal Convictions
In addition to the prohibition against inquiring about an arrest that did result in a conviction, employers may not inquire about a criminal conviction that was judicially dismissed or ordered sealed pursuant to law (SB 530).
Liquidated Damages Recoverable For Minimum Wage Violations
In addition to civil penalties and restitution of unpaid wages, employers that fail to pay the minimum wage may also be required to pay liquidated damages in an amount equal to the wages unlawfully unpaid plus interest thereon (AB 442).
Labor Commissioner May Obtain A Lien On Employer’s Real Property
As an alternative to a judgment lien, the Labor Commissioner may obtain a lien against the real property of an employer upon an order, decision or award in favor of an employee becoming final (AB 1386).
New Criminal Penalty For Employer’s Failure To Remit Withholdings From Wages
An employer that fails to properly remit withholdings from an employee’s wages that were made pursuant to federal, state or local law may be subject to fines and/or imprisonment (SB 390).
Domestic Worker Bill Of Rights Enacted
This law defines “domestic work” to be “services related to the care of persons in private households or maintenance of private households or their premises” (AB 241). Domestic work occupations include childcare providers, caregivers of people with disabilities, sick, convalescing, or elderly persons, house cleaners, housekeepers, maids, and other household occupations. “Personal attendants” (defined as any person employed by a private householder or by any third-party employer recognized in the health care industry to work in a private household, to supervise, feed, or dress a child, or a person who by reason of advanced age, physical disability, or mental deficiency needs supervision) shall be entitled to overtime (1.5 times the employee’s regular rate of pay) for all hours worked over nine hours in a workday and for all hours worked more than 45 hours in a workweek.
Sexual Harassment Law Is Amended
The Fair Employment and Housing Act has been amended to allow an employee claiming sexual harassment to prevail without having to show that the allegedly harassing conduct was motivated by the harasser’s “sexual desire” (SB 292) The new law was authored by Senate majority leader Ellen M. Corbett and principally sponsored by the California Employment Lawyers Association, an organization of attorneys that represent workers in employment cases. The bill was intended to overrule a June 2011 California Court of Appeal decision that rejected a male ironworker’s sexual harassment claim despite evidence that he was subjected to a “barrage of sexually demeaning comments and gestures by his male supervisor.” The bill’s supporters contend that Kelley v. The Conco Cos., 196 Cal. App. 4th 191 (2011) “confused sexual harassment law” and weakened workers’ protections under the FEHA.
In Kelley, the court acknowledged that the supervisor’s comments were “graphic, vulgar, and sexually explicit” and, when interpreted literally, “expressed sexual interest and solicited sexual activity.” Nonetheless, the court affirmed dismissal of the sexual harassment claim because the plaintiff could not present evidence that “the harasser was homosexual” or “motivated by sexual desire.” Effective January 1, 2014, SB 292 overrules Kelley by adding one sentence to the FEHA, stating that “sexually harassing conduct need not be motivated by sexual desire.” So, in future sexual harassment cases, an employee who is subjected to vulgar sexual comments or actions need not prove that the conduct was motivated by the harasser’s “sexual desire.”
“Recovery Periods” Added To List Of Required Breaks
Currently, employers face a one-hour pay penalty if employees are not provided meal or rest periods as required by law (Cal. Lab. Code § 226.7). The statute has been amended so that employers that fail to provide “recovery periods” to employees may be similarly penalized (SB 435). A “recovery period” is defined as a “cooldown period afforded an employee to prevent heat illness.” California OSHA recommendations for preventing heat illness include providing outdoor workers with at least five minutes to cool down in the shade when temperatures exceed 85 degrees Fahrenheit.
Added Protections For “Whistleblowers”
Existing law prohibits an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a state or federal rule or regulation. These provisions have been expanded to prohibit an employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of or noncompliance with a local rule or regulation. An employer also may not retaliate against an employee for such a disclosure (SB 496).
Extortion Law Broadened
Criminal extortion shall include a threat to report a person’s immigration status or suspected immigration status (AB 524).
Undocumented Immigrants May Obtain Driver’s Licenses
The DMV will be required to issue a driver’s license to an undocumented person who can prove identity and California residency and who can otherwise qualify for a license (e.g., written and behind-the-wheel exams) (AB 60). However, these licenses may not be used to verify eligibility for employment (i.e., for Form I-9 verification).
Anti-Retaliation And Immigrant Rights Protections Broadened
The Labor Code has been amended to prevent an employer from retaliating or taking adverse action against any employee or applicant for employment because the employee or applicant has made a written or oral complaint that he or she is owed unpaid wages (AB 263). Furthermore, it will be unlawful for an employer or any other person to engage in an unfair immigration-related practice against a person for the purpose of, or with the intent of, retaliating against any person for exercising a right protected under state labor and employment laws or under a local ordinance applicable to employees. The new law also creates a rebuttable presumption that an adverse action taken within 90 days of the exercising of a protected right is committed for the purpose of, or with the intent of, retaliation. The new law authorizes a civil action by an employee or other person who is the subject of an unfair immigration-related practice and authorizes a court to order the appropriate government agencies to suspend certain business licenses held by the violating party for prescribed periods based on the number of violations. This law also prohibits an employer from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against an employee because the employee updates or attempts to update his or her personal information, unless the changes are directly related to the skill set, qualifications, or knowledge required for the job.
In a companion piece of legislation, it is a cause for suspension, disbarment, or other discipline for any member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment (SB 666). This statute also overrules MacDonald v. State of Cal., 219 Cal. App. 4th 67 (2013) by providing that it is not required to exhaust administrative remedies or procedures in order to bring a civil action under any provision of the Labor Code, unless that section under which the action is brought expressly requires exhaustion of an administrative remedy.
San Francisco Enacts “Family Friendly Workplace Ordinance”
Employers with 20 or more employees in the City and County of San Francisco must consider those employees’ requests for flexible or predictable work arrangements in order to accommodate caregiver responsibilities. Employees who have worked at least eight hours per week for at least six months may request, among other things, changes in their shift times, hours, duties, assignments and work location in order to care for a child, a parent over the age of 65, a spouse, domestic partner, sibling, grandchild, or grandparent with a serious health condition. An employer that denies an employee’s request for a flexible work arrangement must provide in writing a bona fide business reason for doing so. Employers must also post a notice informing employees of their rights under the ordinance and are prohibited from taking adverse job actions against employees based on their caregiver status or in retaliation for seeking a flexible or predictable work arrangement. Violations are subject to administrative penalties of up to $50 per day via enforcement actions brought by the Office of Labor Standards Enforcement.