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January 2014

New Year Brings Enactment of Several New Labor & Employment Laws in California

January 1, 2014, finds California’s employers subject to several new laws that will dramatically affect businesses in the state.  The laws range from a raise of the minimum wage to employment protections for victims of domestic violence and sexual assault.  California employers are advised to review the new laws below and work with legal counsel to implement these new changes.  Attorneys in Gordon & Rees’s  Labor & Employment Practice Group are available to assist employers with any questions or concerns about the new laws.

Assembly Bill 10 Raises the Minimum Wage to $9/Hour in July 2014, $10/Hour in January 2016

Assembly Bill (AB) 10 amended the Labor Code by increasing the minimum wage for all industries.  The law currently requires that all wages be no less than $8 per hour.  Effective July 1, 2014, the minimum wage will increase to $9 per hour.  Thereafter, effective January 1, 2016, the minimum wage will increase to $10 per hour. 

AB 218 Prohibits State and Local Agencies From Requiring Disclosure of Criminal History Under Certain Circumstances

AB 218 added § 432.9 to the Labor Code to prohibit a state or local agency from requiring a job applicant to disclose information regarding his or her criminal history under certain circumstances.  Previously, the law prohibited public and private employers from asking applicants to disclose information concerning an arrest or detention that did not result in a conviction. 

Effective July 1, 2014, state and local agencies are prohibited from requesting information from a job applicant regarding a criminal conviction until the agency has determined that the applicant meets the minimum employment qualifications for the position.  This prohibition does not apply to job positions for which the agency is required by law to conduct a conviction history background check or job positions in a criminal justice agency.

AB 241 Enacts the Domestic Worker Bill of Rights

AB 241 adds the Domestic Worker Bill of Rights to the Labor Code.  The Bill of Rights regulates the hours of work of “domestic work employees” and creates a rate of overtime compensation.  The new law defines “domestic work employee” as an individual who performs domestic work and includes live-in domestic work employees and personal attendants, such as child care providers, caregivers, and maids.  It does not, however, include casual baby sitters.

The Domestic Worker Bill of Rights requires employers to pay domestic work personal attendants time-and-a-half for each hour worked over nine hours in one day or 45 hours in one week.  AB 241 took effect on January 1, 2014, and remains in effect until January 1, 2017. 

AB 263 Expands Retaliation Protections

AB 263 amended and added several sections to the Labor Code to expand the list of employee “protected conduct” against which an employer cannot retaliate. AB 263 also clarifies that it is not necessary to exhaust administrative remedies to enforce the provisions of Labor Code § 98.7.  Under AB 263, an employee is now protected from retaliation by his or her employer when he makes a written or oral complaint regarding wages owed. 

AB 263 amended Labor Code § 1102.5 to provide that an employer may not retaliate against an employee for (1) “reported out” information that the employee reasonably believes to be a violation of local, state, or federal law; or (2) because the employer believes that the employee disclosed or may disclose this information.  The bill provides that an employee who was retaliated against or subject to an adverse action is entitled to reinstatement and reimbursement for lost wages.  The bill also enacts a civil penalty of $10,000 against a person who violates the provisions of AB 263. 

AB 263 also prohibits an employer from committing an “unfair immigration-related practice” in retaliation against an employee exercising his or her legal rights.  These practices can include, but are not limited to, threatening to call the police or immigration authorities in retaliation against an employee who exercises his or her legal rights under the Labor Code.  An employer who commits an unfair immigration-related practice is subject to a civil action (for which it can be held liable for attorney’s fees and costs) and a suspension of certain business licenses for up to 90 days.  AB 263 took effect on January 1, 2014. 

AB 442 Penalizes Employers Who Pay Below Minimum Wage

AB 442 amended the Labor Code to expand penalties for employers paying below minimum wage.  AB 442 allows employees to recover liquidated damages on unlawfully paid wages in addition to the already existing civil penalties and restitution remedies.  AB 442 took effect on January 1, 2014.     

AB 524 Criminalizes Certain Threats Regarding Reporting Immigration Status

AB 524 amended the Penal Code to clarify the definition of “extortion” to include threats to report the immigration status of an individual or a member of his or her family.  AB 524 took effect on January 1, 2014.    

AB 556 Extends FEHA Protections to Individuals with Military and Veteran Status

AB 556 added military and veteran status to the list of categories protected from employment discrimination under the California Fair Employment and Housing Act (“FEHA”).  The law previously prohibited discrimination on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, or sexual orientation. 

AB 556 added military and veteran status to these protected categories.  The bill, however, provides an exemption for an inquiry by an employer regarding military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.  AB 556 took effect on January 1, 2014.   

Senate Bill 292 Clarifies That Sexual Harassing Conduct Need Not Be Motivated by Sexual Desire

Senate Bill (SB) 292 amended § 12940 of the Government Code to clarify the definition of “sexually harassing conduct.”  SB 292 addressed a 2011 California Court of Appeal decision, Kelly v. Conco, which held that “sexually harassing conduct” must be motivated by sexual desire.  SB 292 clarifies that “sexually harassing conduct” need not be motivated by a sexual desire.  SB 292 took effect on January 1, 2014.   

SB 400 Extends Employment Protections to Victims of Certain Crimes

SB 400 amended the Labor Code to expand already existing employment protections of victims of domestic violence and sexual assault, and extended these protections to now include victims of stalking.  SB 400 prohibits an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking.  SB 400 also requires an employer to provide reasonable accommodations to an employee who is a victim of one of these crimes, including implementation of safety measures designed to protect the victim.  SB 400 took effect on January 1, 2014.      

SB 435 Protects “Recovery Periods”

SB 435 amends the Labor Code to prohibit an employer from denying an employee his or her “recovery period” required by the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.  A “recovery period” is defined as a cooldown period to prevent heat illness.  Under SB 435, an employer who fails to provide an employee with a recovery period in accordance with the law must pay the employee one additional hour of pay at the employee’s regular rate for each workday that the recovery period is not provided.  SB 435 took effect on January 1, 2014.         

SB 462 Makes It More Difficult for Prevailing Employers to Collect Attorneys’ Fees and Costs in Wage and Benefits Actions

SB 462 amends the Labor Code to award reasonable attorneys’ fees and costs to a prevailing employer in a wage and benefit action only if the employee initiated the action in bad faith.  Previously the law allowed prevailing employers in these actions to recover attorneys’ fees and costs as a matter of right, and SB 462 imposes a significant barrier to employers who wish to recoup their attorneys’ fees if they prevail in certain wage and benefit suits.  SB 462 took effect on January 1, 2014.     

SB 530 Prohibits Employers From Asking Applicants About Convictions Judicially Dismissed or Ordered Sealed

Previously, the law prohibited any employer from asking an applicant for information concerning an arrest or detention that did not result in a conviction, or for information concerning referral to or participation in a pretrial or posttrial diversion program.  As of January 1, 2014, an employer may not ask an applicant to disclose information concerning a conviction that has been judicially dismissed or ordered sealed.  The law provides certain exceptions, such as where (1) the employer is required by law to obtain that information; (2) the applicant would be required to possess or use a firearm in the course of his or her employment; (3) an individual who has been convicted of a crime is prohibited by law from holding the position sought by the applicant; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.  

SB 770 Expands Scope of “Family” for Leave Benefits

SB 770 amends, repeals, and adds several sections to the Unemployment Insurance Code to expand the types of relationship for which disability insurance benefits may be paid.  Existing law provides up to six weeks of wage replacement benefits to workers who take time off work to care for a seriously ill child, spouse, parent, or domestic partner.  SB 770 expands the scope of the family temporary disability program to include time off to care for a seriously ill grandparent, grandchild, sibling, or parent-in-law.  SB 770 takes effect on July 1, 2014.  

Should you have any questions, please contact Gordon & Rees to assist.

 

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