10 January 2014
The California state legislature continues to enact laws designed to provide employees additional protections and benefits. In this edition of our US Employment Litigation Roundup, we take a look at some of the more important statutes enacted by the California legislature in 2013 that will apply to companies with California-based employees in 2014. Other jurisdictions often follow California’s lead, so other states may see similar statutes enacted in the future. Except where otherwise specified, all of the new laws take effect on January 1, 2014.
Minimum Wage Increases
The state minimum wage of $8 per hour will increase to $9 per hour on July 1, 2014, and to $10 per hour on January 1, 2016.
Expansion of Paid Family Leave Benefits
The California Paid Family Leave law currently provides employees with up to six weeks of paid time off to care for a seriously ill spouse, child, domestic partner or parent, or to bond with a child within one year of birth. A new statute, SB 770, extends the categories of relatives covered by Paid Family Leave to include seriously ill grandparents, grandchildren and parents-in-law.
Expansion of Domestic Violence, Sexual Assault and Stalking Victim Protection
The California Labor Code currently prohibits an employer from discharging, discriminating against or otherwise retaliating against an employee who is a victim of domestic abuse and has taken time off in connection with the domestic abuse (e.g. to attend court proceedings). SB 400 extends this protection to include stalking victims.
In addition, SB400 mandates that employers provide reasonable accommodations for victims of domestic violence, sexual assault and stalking if the employee discloses that he or she is a victim of such a crime. A similar law, SB 288, prohibits discriminating against or retaliating against an employee who is a victim of felonies such as child abuse, domestic violence, physical abuse of the elderly or dependent adults, sexual assault and solicitation for murder, and who takes time off to appear in various proceedings related to those crimes.
Expanded Whistleblower Retaliation Protections
Currently, Labor Code 1102.5 prohibits employers from attempting to prevent an employee from disclosing to a government or law enforcement entity the employer’s violation of, or noncompliance with, a state or federal statute, rule or regulation, or from otherwise retaliating against an employee for doing so. Case law under that statute has excluded employees whose duties included the disclosure of legal compliance information from being categorized as whistleblowers. However, SB 494 expands the definition of whistleblowers to include such employees, thus overruling the prior case law.
Protections for “Domestic Work Employees”
AB 241 establishes new rights for “domestic work employees.” Under this law, a “personal attendant” who works more than nine hours in any workday, or more than 45 hours in any workweek, must be paid time and a half for all hours worked in excess of those amounts. While the law defines “domestic work” broadly, it does not include employees in facilities providing boarding or lodging or employees involved in medical, nursing, convalescent, aged or child care.
Expanding Protection for Undocumented Workers
A series of new laws provide greater protections for immigrants who exercise their employment-related rights. Under AB 263, “an unfair immigration-related practice” is any of the following when done for a retaliatory purpose: (i) requesting more or different documents than required by federal immigration law, or refusing to honor tendered documents that reasonably appear on their face to be genuine; (ii) using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required by federal law or not authorized by any memorandum of understanding governing the use of the E-Verify system; (iii) threatening to file, or filing, a false police report; or (iv) threatening to contact, or contacting, the immigration authorities.
The bill also prohibits employers from taking adverse action against employees who make updates to their personal information that are unrelated to skills, qualifications or knowledge. This seemingly innocuous provision may prevent termination for providing false work authorization documents and subsequently updating the information.
Another new statute, SB 666, expands the definition of “adverse action” to include reporting, or threatening to report, to a government agency the suspected citizenship or immigration status of a worker or the worker’s family in retaliation for the worker’s exercising a lawful right. An employer that engages in an unfair immigration-related practice can lose its business license. Such conduct could also subject the employer to charges of criminal extortion pursuant to AB 524.
SB 666 also provides for disciplinary action, up to and including disbarment, against a California licensed attorney who reports or threatens to report the suspected immigration status of a witness or party in an administrative or civil matter because that person has exercised a lawful employment-related right.
Restriction of Employers’ Right to Recover Attorneys’ Fees and Costs
Labor Code 218.5 previously required a court to award attorneys’ fees and costs to the prevailing party in an action for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions. Kirby v. Immoos Fire Protection (2012) 53 Cal.4th 1244, 1248. SB 462 changes the law such that an employer now can only be awarded attorneys’ fees and costs if the court determines that the employee brought the action in “bad faith.”
Military and Veteran Status Protected Category
AB 556 adds a new protected classification under the Fair Employment Housing Act for “military and veteran status.”
Recovery of Unremitted Employee Wage Withholdings
Under SB 390, an employer that fails to remit withholdings from a worker’s wages to the appropriate local, state or federal agency is guilty of a crime. Any recovery or restitution resulting from a criminal proceeding is to be paid to the agency or entity to whom it is owed.
Expansion of Rights under New San Francisco Ordinance
San Francisco’s new Family Friendly Workplace Ordinance provides a process by which employees have the right to request changes to their work conditions to help them meet their caregiver responsibilities to: a child; a seriously ill spouse, domestic partner, parent, sibling, grandchild, or grandparent; or a parent 65 years or older. The new law applies to all employers that regularly employ 20 or more employees and to employees who have worked at least six months and work at least eight hours a week. The employees can seek accommodations in terms of hours worked, schedule, work location, work assignment and predictability of work schedule. A request must be made in writing and must explain why the change will assist in meeting caregiver obligations. This begins a process that can include meetings and requests for reconsideration. San Francisco’s Office of Labor Standards Enforcement will investigate alleged violations of the law’s administrative, posting, and documentation requirements but will not look into the validity of an employer’s denial of a request.
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