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I.
Legislative Update
National
H.R. 1645. This House bill, entitled The Security Through Regularized Immigration and a Vibrant Economy Act of 2007, proposes to overhaul the immigration laws and impose a mandated electronic employment verification system for all employers. The bill includes a "new worker" program to address the status of qualified, undocumented immigrants already in the country. This bill has been referred to the Committees on the Judiciary and Homeland Security.
H.R. 1542 and S.910. These bills are referred to as The Healthy Families Act and propose to require all employers in the United States which have 15 or more employees to provide their employees who work more than 30 hours per week with seven paid sick days per year. Part-time employees working more than 30 hours per week would receive a pro-rata percentage of that paid leave. The bills have been referred to the appropriate committees in each chamber.
H.R. 1369. This bill primarily proposes to expand the Family and Medical Leave Act to apply to all employers with 25 or more employees, as opposed to the current cutoff of 50 or more employees. This bill has been referred to the House Committees on Education and Labor, Oversight, and Government Reform as well as House Administration.
H.R. 800. This bill is referred to as the Employee Free Choice Act and proposes to change the National Labor Relations Act ("NLRA") to allow unions to bypass private ballot elections in favor of a more open "card check" process that does not involve secret balloting. This bill also will require management-labor disputes on first contracts to be referred to arbitration after 90 days of collective bargaining and 30 days of mediation. H.R. 800 has passed the House of Representative and is now before the Senate.
H.R. 493 and S 358. These identical bills, entitled The Genetic Information Nondiscrimination Act, propose to make it unlawful for an employer to discriminate against an employee based on the employee's, or their family member's, genetic information. Subject to narrow exceptions, the bills forbid employers from requesting, requiring, or purchasing genetic information. These bills are scheduled for debate in their respective chambers.
State
AB 343. This bill would require the State Department of Health Care Services to transmit a report to the Legislature identifying all employers who employ 25 or more persons who are beneficiaries or who support beneficiaries of programs under which low-income persons are provided health care services. This bill passed th Committee on Health and is before the Committee on Appropriations.
AB 435. This Assembly bill proposes to require wage record retention for ten years and would expand the statute of limitations to five years for a civil action for unequal wages and to six years for actions in which there is willful misconduct of the employer. This bill has been passed the Committees on Labor and Employment and the Judiciary Committee and is now before the Committee on Appropriations.
AB 510. This bill would allow individual-based alternative work weeks. This bill did not pass the Committee on Labor and Employment; reconsideration has been granted.
AB 537. This State Assembly bill proposes to expand the circumstances under which an employee is entitled to protected leave pursuant to the California Family Rights Act ("CFRA"). The bill would eliminate the age and dependency elements from the definition of "child," and expand leave for an employee's seriously ill parent-in-law, grandparent, sibling, grandchild, or domestic partner. This bill passed the Committee on Labor and Employment and been referred to the Committee on Appropriations.
AB 592, AB 1425. These bills propose to eliminate the requirement for immediate payment of wages upon discharge of temporary workers. This bill has been referred to the Committee on Labor and Employment.
AB 613. This bill proposed to require postings to be in plain English. This bill did not pass in the Committee on Labor and Employment; reconsideration has been granted.
AB 652. This bill would prohibit an employer from discharging or refusing to hire an employee or applicant on the basis that the employee or applicant legally stores a firearm in his or her vehicle at the worksite, locked up and out of public view. This bill has been referred to the Committee on Labor and Employment. However, the author cancelled the hearing following the shootings in Virginia.
AB 1043. This bill proposes to void employment contracts requiring a forum selection or choice of law provision other than California. This bill passed the Committee on Labor and Employment and has been referred to the Judiciary Committee.
AB 1045. This bill would require the Occupational Safety and Health Standards Board, by July 1, 2008, to adopt a standard, as specified, to protect workers from being exposed to excessive heat indoors. This bill passed the Committee on Labor and Employment and has been referred to the Committee on Appropriations.
AB 1707. This bill would require employers to maintain employment records for a specified time and to provide inspection and copies within a specified time period to current and former employees or their representatives, and would impose sanctions for failure to do so. This bill passed the Committee on Labor and Employment and has been referred to the Committee on Appropriations.
SB 342. This bill would exempt from the meal and rest period provisions employees in the transportation industry whose work places them inside armored cars in shifts during a workday. This bill is before the Committee on Labor and Industrial Relations.
SB 549. This bill would provide employees with the right to take time off for bereavement leave. This bill passed the Committee on Labor and Industrial Relations and has been referred to the Committee on Appropriations.
SB 622. This bill would prohibit willful misclassification of employees as independent contractors and impose civil liability and civil penalties for those persons or employers who violate the bill. This bill passed the Committee on Labor and Industrial Relations and has been referred to the Committee on Appropriations.
SB 836. This bill would include "familial status" as an additional basis upon which the right to seek, obtain and hold employment cannot be denied. This bill is before the Committee on Appropriations.
II.
Agency Update
Status of Sexual Harassment Training Regulations
The Fair Employment and Housing Commission's ("FEHC") proposed sexual harassment training regulations again were subjected to a public comment period that closed April 16, 2007. At its April 23, 2007 meeting, the FEHC adopted the recently modified regulations as its final proposed regulations. The FEHC will now submit a regulatory package to the Office of Administrative Law which has thirty days to review and approve the regulations or disapprove them and require further changes. See www.fehc.ca.gov.
Status of Travel Expense Reimbursement Regulations
The proposed travel expense reimbursement regulations have not yet been approved, but continue through the administrative rule making process.
III.
Judicial Update
California Supreme Court Decides Murphy Meal/Break Period Case
On April 16, 2007, the California Supreme Court issued its much anticipated decision in the Murphy v. Kenneth Cole Productions, Inc. case, finding that the "additional hour of pay" remedy provided in California Labor Code section 226.7 for missed meal and break periods is a wage and not a penalty. The Supreme Court reasoned that the Labor Code broadly defines wages to include all amounts for labor performed by employees. The Court explained that the hour of pay is a wage to compensate employees for the work they performed during the periods when they were deprived of meal or rest periods. The Court also looked at the legislative history and concluded that penalty provisions in other Labor Code provisions were not included in Section 226.7. This means that the time period for bringing a claim for missed meal/break periods is three to four years instead of a one year period for the recovery of penalties. In addition, the Court concluded that a trial court, conducting a new trial after a Labor Commissioner decision, can consider additional wage claims not presented in the Labor Commissioner proceeding. Murphy v. Kenneth Cole Productions, Inc., Cal. Sup. Court Case No. S140308 (April 16, 2007).
Whistleblower Must Set Aside Adverse Findings Before Pursuing Civil Action
The Court of Appeal recently affirmed the applicability of principles of judicial and administrative exhaustion to administrative determinations made by The California State University ("CSU") under The California Whistleblower Protection Act ("CWPA"). The CWPA allows CSU and other State bodies to adopt internal administrative procedures to receive, investigate, and decide whistleblower claims. The court held that prior to filing any civil action seeking damages under the CWPA, a CSU employee must first (1) seek relief through available administrative procedures by filing a complaint with the proper CSU authorities (administrative exhaustion), and (2) set aside, through appellate writ procedures, any otherwise binding adverse findings made during those administrative proceedings (judicial exhaustion). The failure to do either bars a civil action seeking damages for claims either not raised or on legal theories inconsistent with the binding administrative findings. The decision also interpreted the phrase "satisfactorily addressed," unique to the CSU portion of the statute, as imposing an objective good faith standard for courts reviewing CSU's decisions in writ proceedings. The court did not, however, precisely define this standard. Ohton v. Board of Trustees of California State Univ., Cal.App.Ct (4th Dist.) Case No. D046617 (March 16, 2007).
No Public Policy Found to Support Claim for Wrongful Termination
The Court of Appeal recently reversed a jury verdict in favor of a teacher who claimed he was wrongfully denied reelection to his teaching position after he complained that a football coach had recommended a nutritional supplement to a student. The court explained that, to recover for wrongful termination in violation of public policy, the plaintiff must prove that the employer violated a public policy that is fundamental, well-established and carefully-tethered to a constitutional or statutory provision. The court found that no law prohibits a coach from recommending supplements, and thus no basis existed for a public policy violation. Carter v. Escondido Union High School Dist., Cal.App.Ct. (4th Dist.) Case No. D046833, D047649 (March 21, 2007).
Liability Imposed When Harassment Occurs in Connection with Employment
The Court of Appeal reversed a summary judgment in favor of an employer in a sexual harassment lawsuit, finding that claimed harassment occurring at an off-work event (the attendance at which benefited the employer) "did not result from a completely private relationship unconnected with the employment." As such, the employer could be held liable for the harassment under the Fair Employment and Housing Act ("FEHA"). On the non-FEHA claims, the court held that the employer could not be held vicariously liable for the harasser's conduct because the acts were not performed in the course and scope of employment but during a substantial deviation for personal purpose from his employment-related duties. Meyers v. Treadwest Resorts, Inc., Cal.App.Ct. (3d Dist.) Case No. C052286 (February 28, 2007).
This update was written by Margaret C. Bell in the San Diego office of Gordon & Rees LLP. Portions of this article can also be found in The Resource newsletter published by the San Diego Society for Human Resource Management (www.sdshrm.org) where Ms. Bell serves on its Board of Directors as Vice President, Legislation.
Contacts:
San Francisco - Michael Bruno
Los Angeles - Stephen Ronk
San Diego - James McMullen
Portland - Christopher Hawk
Houston - Terrence Robinson
New York - Mercedes Colwin
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