Getting Down To Business: Highlights Of New California Employment Laws

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

With the start of the new year, it is the perfect time for employers to ensure that their policies reflect the changes in California law. We covered many of the laws affecting employers in our “California Legislative Update 2013” article and in my three-part blog series, “How the New California Laws Will Impact Your Business in 2014 and Beyond.” Part one of the series covered recent wage and hour legislation; part two covered EEO, disability, and leave legislation; and part three covered immigration-related legislation

Below are highlights of some of the new laws that are likely to affect private employers in California.

Military and Veteran Status

Through the passage of AB 556, the legislature amended sections 12920, 12921, 12926, and 12940 of the Government Code and added “military and veteran status” to the Fair Employment and Housing Act’s (FEHA) list of categories that are protected from employment discrimination. The new law allows employers to ask applicants or employees about their military or veteran status in order to provide a veteran’s preference where one is applicable. Employers’ policies and handbooks need to be reviewed and revised to include this new FEHA-protected category.

Added Whistleblower Protection

Having internal procedures for handling employee concerns about company activities and the conduct of other employees has always been important. When employers handle such concerns consistently and through set procedures, employees are less likely to involve third parties or government agencies. With the passage of SB 496, amending section 1102.5 of the Labor Code, employers are now prohibited from adopting policies that prevent employees from disclosing information to a government or law enforcement agency, if the employee reasonably believes that the information “discloses a violation of or noncompliance with a local rule or regulation.” Retaliation against an employee who the employer believes disclosed or may disclose information to a government or law enforcement agency or to another employee with authority to investigate or correct the violation is also prohibited by the new law.

Failing to Pay Minimum Wages

Employers that pay employees less than the minimum wage will be subject to liquidated damages as of January 1. AB 442 amends Labor Code sections 1194.2 and 1197.1, expanding the Labor Commissioner’s authority to award liquidated damages to employees, in addition to criminal and civil penalties against employers. With the new law and the recent spike in class action litigation over employees’ regular rate of pay for calculating minimum and overtime wages, employers would do well to internally audit their payroll and wage payment practices.  

Compensation for Meal and Rest or Recovery Periods

SB 435 amends Labor Code section 226.7, expanding the requirement that employers pay one additional hour of pay to employees who are required to work through a legally mandated meal period or rest break to include “recovery” periods. California’s Division of Occupational Safety and Health (DOSH), better known as Cal/OSHA, has regulations that require employers of certain outdoor workers to provide shade and to encourage workers to take a “cool-down” period or recovery period for at least five minutes in an effort to prevent heat illness. Employers that fail to provide a recovery period are required to compensate their employees with an additional hour of pay, similar to the requirement to pay an additional hour of pay to employees who miss meal and rest periods.

Time Off for Victims of Certain Offenses

In light of SB 288, which adds Labor Code section 230.5, employers should consider implementing procedures for requests for time off from victims of certain crimes, as well as procedures for documentation needed to verify the reason for the time off. The new law essentially provides time off for the victim to attend court hearings. “Victim” is defined broadly and includes the employee’s spouse, parent, child, sibling, or guardian. The employee is required to provide advanced notice when feasible, and the time off is unpaid unless the employee has accrued vacation or other time off to cover the leave.

No Need to Show Sexual Desire to Prove Sexual Harassment

As noted in a previous blog post, Under New California Law—No Proof of Sexual Desire Required to Prove Sexual Harassment,” SB 292 amends Government Code section 12940, clarifying prior judicial precedent and addressing the decision in Kelley v. Conoco Companies. Under the new law, employees who file suit claiming sexual harassment need not prove that the allegedly harassing conduct was motivated by sexual desire. The new law is a good reminder that businesses located anywhere in the United States must ensure that their California supervisors complete a minimum of two hours of harassment training.  

Immigration Status of Employees

With the passage of AB 263 and SB 666, there are new laws prohibiting retaliation against employees based on their suspected immigration status. Employers should remind supervisors that an employee’s immigration status should not be used or threatened to be used against an employee. Employers should also review their I-9 verification policies to ensure that they are consistent with AB 263. AB 263 adds Labor Code sections 1019 et seq. and SB 666 adds sections 494.6 and 6103.7 to the Business and Professions Code, amends Labor Code sections 98.6 and 1102.5, and adds Labor Code section 244. Details of these bills can be found in part three of my three-part blog series.

California Minimum Wage Increases on July 1, 2014

On July 1, the state minimum wage will increase to $9 per hour. Another increase—to $10 per hour—will take effect on January 1, 2016. Employers should post new minimum wage posters by July 1. Employers should also review the salaries of exempt employees and commissioned salespersons to ensure that they do not fall below the minimum wage requirements. The state’s minimum wage increase was the result of AB 10, which amends section 1182.12 of the Labor Code. We covered the minimum wage increase in detail in our previous blog posts, How the New California Laws Will Impact Your Business in 2014 and Beyond, Part 1: Wage and Hour Legislation and BREAKING NEWS: California’s Minimum Wage Goes Up—But There Are Some Pitfalls Employers Need to Avoid.”

Paid Family Leave Expansion on July 1, 2014

Under California’s Paid Family Leave (PFL) program, employees may receive up to six weeks of monetary benefits for time taken off to care for sick family members. As of July 1, the definition of “family members” will be expanded under the PFL program to include grandparents, grandchildren, siblings, and parents-in-law. The expanded definition of “family members” is the result of SB 770, which amends section 3300 of, and amends, repeals, and adds sections 2708, 3301, 3302, and 3303 of, the Unemployment Insurance Code relating to PFL.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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