New California Employment Laws for 2014

by Ervin Cohen & Jessup LLP

With another year comes another new set of laws for California employers; what else would you expect from sending a bunch of legislators to Sacramento? Here is an overview of the highlights (or lowlights, depending on your point of view) of 2014’s offerings which are generally applicable to all California employers. Unless otherwise noted, all laws are effective January 1, 2014.

Assembly Bill 442 amends Labor Code Sections 1194.2 and 1197.1 by expanding certain penalty and restitution provisions relating to the failure to pay minimum wages. The bill creates a liquidated damages provision that requires payment by the employer of an amount equal to the amount of unpaid wages, plus interest. The law will also apply to individual officers, agents, employees and employers who pay or cause to be paid to any employee a wage less than the minimum wage.

Senate Bill 400 amends the Fair Employment and Housing Act (FEHA) by adding victims of stalking, sexual assault and domestic violence as protected categories. As amended, FEHA will prohibit any adverse actions by the employer because of the employee’s status as a victim and will require the employer to provide reasonable accommodations for victims. The bill further creates a private right of action for any aggrieved employee.

Assembly Bill 263 was one of many laws passed by the California Legislature addressing immigration issues. AB 263 amends the Labor Code to prohibit “unfair immigration-related practices.” Specifically, AB 263 will prohibit an employer from retaliating or taking adverse action against an employee or applicant for employment because the employee or applicant engaged in protected conduct. “Unfair Immigration-Related Practice” is defined as, among other things, requesting more or different documents than are required by the federal government, 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 the federal government, threatening to file or filing a false police report, or threatening to contact or contacting immigration authorities. Further, the bill creates a rebuttable presumption that an employer has engaged in an unfair immigration-related practice when such actions occur within ninety days of the employee’s exercise of a right protected by the Labor Code or a local ordinance applicable to employees. The new law provides for civil penalties up to $10,000 per employee, and requires the court to order the suspension of government licenses issued to the employer. A companion statute, Senate Bill 666, amends the Business and Professions Code and Labor Code to address many of the same issues, and further allows for the possibility of disbarment to a member of the State Bar who engages in such practices. In addition, Assembly Bill 524 amends Penal Code Section 519 to provide that the threat of reporting the immigration status of an individual, relative or family member may induce fear sufficient to constitute criminal extortion.

Senate Bill 390 amends Labor Code Section 227 to allow the Labor Commissioner to pursue criminal prosecution and fines in connection with an employer’s failure to remit payroll taxes to the proper agency. The new law states that a violation of $500 or less will qualify as a misdemeanor; a violation of more than $500 will be considered a felony. Violations are punishable with jail time of not more than one year, fines of not more than $1,000, or both.

Senate Bill 435 amends Labor Code Section 226.7 to expand penalties available for an employer’s failure to provide meal or rest periods to include recovery periods. “Recovery periods” are defined as a cool down period afforded an employee to prevent heat illness. Recovery periods, as well as meal and rest breaks, can be proscribed by statute, regulation, standard or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health. The penalty for failure to provide the recovery period is one additional hour of pay at the employee’s regular rate of pay for each day the recovery period is not provided. The law does not apply to persons exempt from meal or rest or recovery period requirements.

Assembly Bill 10 amends Labor Code Section 1182.12 to increase the minimum wage in California. Specifically, the minimum wage will be increased to $9.00 an hour on July 1, 2014, and increase to $10.00 an hour on January 1, 2016. The minimum wage hike represents a 25% increase over the current rate of $8.00 an hour. Following the increases, California will have the highest minimum wage rate in America, assuming other states do not provide for significant increases in the near future. California currently has the eighth highest minimum wage. The State of Washington has the highest minimum wage at $9.19 an hour (and will raise its minimum wage to $9.32 on January 1, 2014). Only 19 states and the District of Columbia have set minimum wages higher than the federal mandate of $7.25 an hour. There are 10 states that annually adjust the minimum wage based on inflation and the Consumer Price Index.

Senate Bill 292 amends FEHA in response to Kelley v. Conco Companies, a 2011 California Court of Appeal same-sex harassment decision that created some confusion regarding a plaintiff’s evidentiary requirement for proving a hostile work environment sexual harassment claim by implying that a plaintiff is required to prove sexual desire to prevail on such a claim. This reading of the Kelley decision contradicts the 2006 California Court of Appeal decision in Singleton v. United States Gypsum Co., and ignores language in the leading United States Supreme Court decision on same-sex sexual harassment, Oncale v. Sundowner Offshore Services, Inc. SB 292 amends FEHA to specifically state that sexually harassing conduct need not be motivated by sexual desire. Sexually harassing conduct is always wrong, regardless of motivation.

Assembly Bill 556 amends the FEHA to add military and veteran status as protected categories. As most employers are aware, FEHA protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. Assembly Bill 556 adds “military and veteran status” to the list of categories protected from employment discrimination under FEHA. The new law provides an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding certain veteran’s preferences permitted by law, such as those offered to Vietnam-era veterans.

Senate Bill 462 amends Labor Code Section 218.5 to state that, in an action brought for the non-payment of wages, fringe benefits or health and welfare or pension fund contributions, a prevailing employer may only be awarded attorney’s fees and costs if a court finds that the employee brought the action in bad faith. Prior to the amendment, Labor Code Section 218.5 required a court to award reasonable attorney’s fees and costs in such an action to the prevailing party if any party requested attorney’s fees and costs upon the initiation of the action.

Assembly Bill 11 amends Labor Code Section 230.4. Existing law requires employers with 50 or more employees to allow volunteer firefighters to take up to 14 days off per year for training. Assembly Bill 11 extends the same benefit to reserve peace officers and emergency rescue personnel. Employer retaliation is, of course, strictly prohibited and the Division of Labor Standards Enforcement is authorized to pursue complaints.

Senate Bill 770 amends Labor Code Sections 2708 and 3300 through 3302 to expand existing Paid Family Leave law. Specifically, the law will now provide family temporary disability leave to care for a seriously ill grandparent, grandchild, sibling and parent-in-law in addition to a child, spouse, parent or domestic partner, or to bond with a minor child after birth or adoption. The law becomes effective July 1, 2014.

Senate Bill 288 adds Labor Code Section 230.5 to protect victims of various specific offenses. Specifically, existing law prohibits employers from discriminating or retaliating against an employee who is a victim of a crime for taking time off to appear in court, or an employee who is a victim of domestic violence or a victim of sexual assault for taking time off to seek or obtain relief. SB 288 adds a list of offenses for victims, or those who testify at the request of victims, to allow such persons to take time off work to appear in court. The offenses are: vehicular manslaughter, child abuse, felony domestic violence, felony abuse of an elder, felony stalking, solicitation for murder, serious felonies, hit and run and felony driving.

Senate Bill 496 expands whistleblower protection to prevent employers from retaliating against an employee because the employer believes the employee has disclosed or may disclose information to a government or law enforcement agency concerning a violation of, or noncompliance with, a local rule or regulation. The new law also prohibits retaliation based on an employee’s refusal to participate in an activity that would result in a violation or noncompliance with a local rule or regulation.

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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