California Legislature: First out of the Starting Gate

California’s State Legislature is now producing the labor and employment bills that will be the subject of its attention this year. 

This year’s primary effort to raise the state’s minimum wage is again set for a hearing in the Senate Labor and Industrial Relations Committee on April 8 (SB 3).  Another bill set for hearing would regulate discussion of wages, and would create a comprehensive system for regulating equal pay based on gender in the workplace (SB 358).

Assemblymember Lorena Gonzalez of San Diego is the lead author of three major employment bills, two of which relate to her paid sick leave bill of 2014.  AB 304 is the “clean-up” bill for last year’s paid sick leave bill (AB 1522), and AB 11 would add to the law’s coverage a major group – home health care providers – excised from the bill at the last minute to obtain the Governor’s approval. Her third bill, which she has dubbed “Double Pay on the Holiday Act of 2015,” would require double time for certain hourly workers required to work on Thanksgiving or Christmas. 

Other bills of interest would increase the minimum wage for tipped employees (AB 669), and would confirm the workplace rights of professional sports teams’ cheerleaders (AB 202). 

The key measures now on the legislative radar, either because of their subject matter or because they are among the first bills to be heard in policy committees, are:¹

SB 3:   Would increase the minimum wage, on and after January 1, 2016, to not less than $11 per hour, on and after July 1, 2017, to not less than $13 per hour; would require the annual automatic adjustment of the minimum wage, commencing January 1, 2019, to maintain employee purchasing power diminished by the rate of inflation during the previous year; the adjustment would be calculated using the California Consumer Price Index; would prohibit the Industrial Welfare Commission (IWC) from adjusting the minimum wage downward and from adjusting the minimum wage if the average percentage of inflation for the previous year was negative; would require the Department of Labor Standards Enforcement (DLSE) to publicize the automatically adjusted minimum wage; would provide that its provisions not be construed to preclude an increase in the minimum wage by the IWC to an amount greater than the formula would provide, to result in a reduction in the minimum wage, or to preclude or supersede an increase of the minimum wage that is greater than the state minimum wage by any local government or tribal government.  The bill would apply to all industries, including public and private employment. Amends Labor Code section 1182.12.  Senate Labor and Industrial Relations Committee.*

SB 358: This measure would:

• Revise existing workplace prohibitions against employers to include forbidding discussions and inquiries regarding the wages of an employee, the wages of other employees, and workplace conditions;
• Require an employer to post these provisions in a conspicuous location frequented by employees during the hours of the workday.  

Existing law generally prohibits an employer from wage rate differentials based on sex in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and are performed under similar working conditions. Existing law establishes exceptions to that prohibition where the payment is made pursuant to a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or a differential based on any bona fide factor other than sex.This bill would: 

• Revise that prohibition to eliminate the requirement that the pay differential be within the same establishment, and would replace the terms “equal” work and equal skill, effort, and responsibility with comparable work and comparable skill, effort, and responsibility;
• Revise and recast the exceptions to require the employer to affirmatively demonstrate that a pay differential is based upon one or more specified factors, including seniority system, a merit system, a system that measures earnings by quantity or quality of production, or that work is performed at different geographic locations, on different shifts, or at different times of day. The bill would also require the employer to demonstrate that each factor relied upon is applied reasonably, and that the one or more factors relied upon account for the entire differential. 

Amends Labor Code sections 232, 232.5, and 1197.5.  Senate Labor and Industrial Relations Committee.*

AB 11 would revise the definition of an employee under the Healthy Workplaces, Healthy Families Act of 2014 [2013-2014’s AB 1522] to, as of July 1, 2016, include providers of in-home support services.  Amends, repeals, and adds Labor Code section 245.5. Assembly Appropriations Committee.

AB 67 would enact the “Double Pay on the Holiday Act of 2015,” requiring an employer to pay at least two times the regular rate of pay to an employee for work on Thanksgiving or Christmas.  Adds Labor Code section 511.5.  Assembly Appropriations Committee.

AB 304 would amend the Healthy Workplaces, Healthy Families Act of 2014 (paid sick leave; 2013-2014 AB 1522) to:

• Require that the employee work for the same employer for 30 or more days within the previous 12 months in order to qualify for accrued sick leave under these provisions;
• Exclude a retired annuitant of a public entity and a worker covered by the Railroad Unemployment Insurance Act from the Act’s definition of “employee”;
• Delete the definition of a health care provider;
• Authorize an employer to provide for employee sick leave accrual on a basis other than one hour for each 30 hours worked, provided that the accrual is on a regular basis and the employee will have 24 hours of accrued sick leave available by the 120th calendar day of employment;
• Permit an employer who provides unlimited sick leave to its employees to satisfy notice requirements by indicating “unlimited” on the employee’s itemized wage statement;
• Provide that if the employee receives a different hourly rate when the accrued sick leave is taken, the rate of pay would be calculated in the same manner as the regular rate of pay for purposes of overtime; and
• Provide that an employer is not required to reinstate accrued paid time off to an employee, rehired within one year of separation from employment, that was paid out at the time of termination, resignation, or separation.    

Amends Labor Code sections 245.5, 246, and 248.5. Assembly Labor and Employment Committee.

AB 357, the Fair Scheduling Act of 2015, would make legislative findings and declarations relating to work-hour scheduling for employees of food and general retail establishments, and would:

• Require these covered employers to provide its employees with at least two weeks’ notice of their schedules;
• Require those employees to receive additional pay if those employees do not receive at least two weeks’ notice of their work schedule;
• Require an employer to pay those employees to receive additional pay for each previously scheduled shift that the employer moves to another date or time or cancels and each previously unscheduled shift that the employer requires an employee to work;
• Require an employer to pay those employees a specified amount for each on-call shift for which the employee is required to be available but is not called in to work;
• Specify that these provisions do not apply in certain circumstances, including, but not limited to, when operations cannot begin or continue due to causes not within the employer’s control;
• Prohibit an employer from discharging or discriminating against an employee because he or she is a person who receives, or is a parent, guardian, or grandparent who has custody of one or more children who receive benefits under the CalWORKs program, or a person who receives benefits under CalFresh;
• Require an employer to allow such an employee to, upon request, be absent from work without pay to attend any required appointments at the county human services agency, provided that the employee gives reasonable notice to the employer of the planned absence from work prior to taking time off of work;
• Require the Labor Commissioner to promulgate all regulations and rules or practice and procedure necessary to carry out these provisions; and
• Prohibit sanctions from being applied upon a recipient of CalWORKs for failure or refusal to comply with CalWORKs program requirements if the employment or offer of employment fails to comply with these provisions.²

Adds Labor Code sections 518 and 519; amends Welfare and Institutions Code section 11320.31. Assembly Labor and Employment Committee.

Other Employment and Labor Bills

AB 145 amends the requirement under 2013-2014’s AB 1792 (sometimes called the “public shaming act”) which defined an employer as an individual or organization that employs 100 or more beneficiaries of the Medi-Cal program.  Last year’s bill defined “employer” as an entity that employs 50 or more beneficiaries. This bill changes the proposed number of employees from 50 to 100 to make the language consistent.  This measure would take effect immediately as an urgency statute.  Amends Unemployment Insurance Code section 1095.  Assembly floor.

AB 202 would require that a California-based professional sports team that utilizes the services of cheerleaders to provide those cheerleaders with specified rights and benefits afforded to its employees under existing employment laws, regardless of the terms and conditions under which the cheerleader performs.  Adds Labor Code section 2754.  Assembly Labor and Employment Committee.* 

AB 219 would expand the definition of “public works,” to include the delivery of ready-mixed concrete with respect to contracts involving any state agency or any political subdivision of the state.  Amends Labor Code section 1720.3.  Assembly Labor and Employment Committee.* 

AB 251 would provide that a public subsidy for a public works/prevailing wage project is de minimis if it is both less than $25,000 and less than one per cent of the total project cost; specifies that those provisions do not apply to a project that was advertised for bid, or a contract that was awarded, before January 1, 2016. Amends Labor Code section 1720.  Assembly floor.

AB 272 would expand the definition of “employee” in the Fair Employment and Housing Act (FEHA) to include specified reserve or auxiliary public safety officers.  Amends Government Code section 12926.  Assembly Labor and Employment Committee.* 

AB 327. Existing law governing public works does not apply to specified work performed by a volunteer, a volunteer coordinator, or a member of the California Conservation Corps or a community conservation corps. These provisions are effective only until January 1, 2017, and as of that date are repealed.  This bill would delete that repeal date provision, effectively extending those provisions indefinitely.  Amends Labor Code section 1720.4.  Assembly Labor and Employment Committee. 

AB 359 would require, upon a change in control of a grocery establishment, that an incumbent grocery employer prepare a list of specified eligible grocery workers for a successor grocery employer, as defined, and would require that the successor grocery employer hire from this list during a 90-day transition period; would require the successor grocery employer to retain eligible grocery workers for a 90-day period, during which time an employee may only be discharged for cause, and, upon the close of that period, the successor grocery employer would be required to consider offering continued employment to these workers; would authorize eligible grocery workers to bring a cause of action against an incumbent or successor grocery employer for a violation of these provisions; would specify what may be awarded pursuant to this cause of action; would exempt a grocery establishment located in a food desert from the bill’s requirements; would provide that a collective bargaining agreement may supersede these requirements and that these provisions do not preempt any local ordinances that provide equal or greater protection to eligible grocery workers.  Assembly Labor and Employment, and Judiciary, Committees. 

AB 500 would authorize a private employer, including a nonprofit entity, to deem a person an independent contractor, for a period not to exceed two years from the date of successful completion of a substance abuse rehabilitation program, if the person has been convicted of a felony involving substance abuse, except a violent felony, or a misdemeanor for an offense involving substance abuse.  Adds Labor Code section 30. Assembly Labor and Employment Committee. 

AB 520 would require the report on apprenticeship programs administered by the Division of Apprenticeship Standards within the Department of Industrial Relations to include an analysis of any apprenticeship standards or regulations that were proposed or adopted in the previous year.  Amends Labor Code section 3073.5.  Assembly Labor and Employment Committee.* 

AB 561 would give the Agricultural Labor Relations Act board’s general counsel primary authority with respect to the calculation and litigation of makewhole awards, backpay calculations, and other monetary awards in compliance proceedings before the board; would require the board and general counsel, within one year of an order of the board finding liability for a makewhole award, backpay calculation, or other monetary award, to process any compliance decision concerning the award to final board order; would require an employer who appeals or petitions for a writ of review of an order of the board to post a bond in the amount of the entire economic value of the order. Amends Labor Code section 1149, and adds sections 1149.3 and 1164.6. Assembly Labor and Employment Committee.* 

AB 578 would require an employer to give notice to workers at the place of employment who will be affected by the temporary variance from an occupational safety and health standard, or representatives of affected workers, who may be affected by or exposed to the hazards by the temporary variance from an occupational safety and health standard; would require any affected worker, or representative of affected workers, upon request, to be granted party status to the variance proceedings; would require the temporary variance application to include a certification that the employer has given notice to affected workers as required.  Amends Labor Code sections 6450 and 6451, and adds section 6450.5.  Assembly Labor and Employment Committee.* 

AB 588 provides an employer with the right to cure a violation of the wage statement law requirement before an employee may bring a civil action under the Private Attorneys General Act. Amends Labor Code section 2699.5. Assembly Labor and Employment, and Judiciary, Committees. 

AB 621 would, notwithstanding any law, relieve a motor carrier performing drayage services of liability for statutory or civil penalties associated with misclassification of commercial drivers as independent contractors if the motor carrier enters into a consent decree with the Labor Commissioner prior to January 1, 2017, whereby the motor carrier agrees to convert all of its commercial drivers to employees, and the consent decree contains prescribed components, including, but not limited to, an agreement by the motor carrier to pay all wages, benefits, and taxes owed, if any.  Adds Labor Code section 2750.8.  Assembly Labor and Employment Committee.*

AB 669 would establish the minimum wage for a qualifying tipped employee, on and after January 1, 2016, at $9 per hour; would define “qualifying tipped employee” to mean an employee who regularly receives income from wages at a rate equal to at least $15 per hour, as described; would define “wages” for these purposes to mean all remuneration for services performed by an employee for his or her employer, including tips received by an employee in the course of his or her employment; would require an employer, if in any month a qualifying tipped employee receives income from wages at a rate of less than $15 per hour, to pay the employee an amount equal to the difference, if any, between the minimum wage per hour for qualifying tipped employees the state minimum wage per hour for all other employees, multiplied by the total number of hours worked by the employee during that month; would supersede local minimum wage laws unless the local law contains specified provisions.  Amends Labor Code section 1182.12. Assembly Labor and Employment Committee.

AB 676 would, on and after July 1, 2016, prohibit an employer, an employment agency, or a person who operates an Internet Web site for posting jobs in California to publish an advertisement or announcement for a job that states or indicates that current employment is a requirement, unless this is based on a bona fide occupational qualification; would prohibit an employer or employment agency from asking an applicant for employment to disclose, orally or in writing, information concerning the applicant’s current employment status, except as specified; would prohibit an employer, an employment agency, or a person operating an Internet Web site for posting jobs from interfering with, or discriminating against, a person exercising these rights; would subject an employer, an employment agency, or a person who operates an Internet Web site for posting jobs in this state who violates the above provisions to civil penalties that escalate with the number of violations; would provide that a private right of action is not authorized for a violation of these provisions.  Adds Labor Code Chapter 3.95 (starting with section 1045).  Assembly Labor and Employment Committee.*

AB 852 would expand the definition of “public works” for the purposes of provisions relating to the prevailing rate of per diem wages, to also include any construction, alteration, demolition, installation, or repair work done under private contract on a hospital or health care facility project when the project is paid for, in whole or in part, with the proceeds of conduit revenue bonds issued on or after January 1, 2016.  Adds Labor Code section 1720.7.  Assembly Labor and Employment Committee.*

AB 883 would prohibit private and public employers from publishing or posting a job advertisement or announcement that states or indicates directly or indirectly that the applicant for employment must not be a current or former public employee; would prohibit these employers from communicating, directly or indirectly, that an applicant’s status as a current or former public employee disqualifies an individual from eligibility for employment or from basing an employment decision on an applicant’s current or former employment as a public employee; would create a related prohibition for a person who operates an Internet Web site for posting jobs in California.  Adds Labor Code section 432.6.  Assembly Labor and Employment Committee.*

AB 908 would require the family temporary disability insurance program to provide up to 10 weeks of wage replacement benefits (an increase from the current maximum of six weeks); the weekly benefit amount would be prohibited from being less than $250 and more than the maximum workers’ compensation temporary disability indemnity weekly benefit amount. Amends Unemployment Insurance Code section 3301. Assembly Insurance Committee.* 

AB 970 would authorize the Labor Commissioner to enforce local laws regarding overtime hours or minimum wage provisions and to issue citations and penalties for violations.  Amends Labor Code sections 558, 1197, 1197.1, and 2802.  Assembly Labor and Employment Committee.*

AB 987 would prohibit an employer or other covered entity from retaliating or otherwise discriminating against a person for requesting accommodation of his or her disability or religious beliefs, regardless of whether the accommodation request was granted.  Amends Government Code section 12940.  Assembly Labor and Employment Committee.*

AB 1038 would permit an individual nonexempt employee to request an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek; would allow an employer to implement this schedule without the obligation to pay overtime compensation for those additional hours in a workday, except as specified; would require that the flexible work schedule contain specified information and the employer’s and the employee’s original signature; would require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt regulations.  Amends Labor Code section 510; adds Section 511.5.  Assembly Labor and Employment Committee.

AB 1065 would make it an unlawful employment practice for an employer to request more or different documents than are required under federal law relating to verification that an individual is not an unauthorized alien, or to refuse to honor documents tendered that on their face reasonably appear to be genuine, or to attempt to reinvestigate or reverify an incumbent employee’s authorization to work unless required to do so by federal law or authority.  Adds Government Code section 12952.  Assembly Labor and Employment Committee.

AB 1245 would, beginning on January 1, 2016, and except as provided, require an employer with 10 or more employees to file all reports and returns electronically and remit all contributions for unemployment insurance premiums by electronic funds transfer; would extend the application of these electronic filing and transfer requirements to all employers beginning on January 1, 2017; would authorize the granting of a waiver from these requirements; would extend penalties to an employer, subject to the above-described electronic filing requirements, who fails to file the required reports electronically or contributions by electronic funds transfer; would, beginning on January 1, 2016, require an employer who is subject to the above-described electronic filing requirements to remit the withheld taxes by electronic funds transfer; would authorize a waiver from these requirements; would require the Department of Employment Development to notify certain employers of these requirements.  Amend Unemployment Insurance Code sections 1088, 1110, 1112, 1114, and 13021.  Assembly Insurance Committee.*

AB 1354 would enact the Equal Pay for Equal Work Act of 2015; would require an employer with 100 or more employees, prior to becoming a contractor or subcontractor with the state, to submit an income equality program to the Department of Fair Employment and Housing for approval and certification and to submit periodic reports of its compliance with that program; would require the income equality program to include the collection of summary data on the compensation paid to employees, including data sorted by gender and race, and policies designed to ensure income equality and prevent unlawful discrimination; would make a statement of legislative findings.  Amends Government Code section 12990.  Assembly Labor and Employment Committee.

AB 1470 would exempt from overtime pay an employee with a total gross annual compensation of at least $100,000 if that employee also regularly performs any of the exempt duties or responsibilities of an executive, administrative, or professional employee as set forth in the Industrial Welfare Commission Wage Orders; would only apply to an employee whose primary duty includes office or nonmanual work.  Adds Labor Code section 510.5.  Assembly Labor and Employment Committee.

SB 140 would, among other changes, change to definition of tobacco products prohibited from use in the workplace to include electronic cigarettes.  Amends Labor Code section 6405.5, among other changes.  Senate Health Committee.*

SB 406 would restrict the California Family Rights Act’s small business exemption to an employer that employs fewer than five employees within 75 miles of the worksite where the employee is employed; would redefine employer to include any person who directly employs five or more persons to perform services for a wage or salary; would redefine the term “child” to include a child of a domestic partner, and would remove the restriction on age or dependent status; would expand the definition of leave with regard to caring for persons with a serious health condition to include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition; would include a parent-in-law in the definition of “parent.”  Amends Government Code section 12945.2.  Senate Labor and Industrial Relations Committee.*

SB 414 would replace multiple Code references to “husband” and “wife” with “spouse.”  Amends multiple Codes.  Senate Judiciary Committee.*

SB 432. Existing law extends preference for public works employment first to California citizens, next to citizens of other states who are in California at the time of application, and next to aliens who are in California at the time of application. Existing law defines “alien” as any person who is not a born or fully naturalized citizen of the United States.  This bill would repeal this definition of “alien.”  Repeals Labor Code section 1725.  Senate Labor and Industrial Relations Committee.*

SB 500 would allow an employer of a non-California resident employee who performs services in California for the employer for no more than 20 days in a taxable year, under specified conditions, not to deduct or withhold personal income taxes.   Adds Revenue and Taxation Code sections 17952.7 and 18501.5, and Unemployment Insurance Code section 13020.5.   Senate Governance and Finance Committee.*

SB 548 would authorize family child care providers to form, join, and participate in the activities of provider organizations, as defined, and to seek the certification of a provider organization to act as the exclusive representative for family child care providers on matters related to state-funded child care programs pursuant to a petition and election process overseen by the Public Employment Relations Board or a neutral third party designated by the board; would authorize a certified provider organization to enter into an agreement with the state that provides that the state will require entities that make subsidy payments to providers, including the contractors or subcontractors of state agencies and departments, to deduct membership dues and other voluntary deductions from those subsidy payments; would prohibit provider organizations from calling strikes.  Adds Education Code section 8430 et seq.   Senate Labor and Industrial Relations, and Rules, Committees. 

SB 579 would require that employer permit an employee to use paid sick leave to address a childcare or school emergency, and would prohibit an employer from denying an employee the right to use sick leave or taking specific discriminatory action against an employee for using, or attempting to exercise the right to use, sick leave to address a childcare or school emergency.  Amends Labor Code section 233.   Senate Labor and Industrial Relations Committee.*

SB 607. Existing law requires the Division of Labor Standards Enforcement to maintain minimum standards for the competency and training of electricians through a system of testing and certification.  Existing law also sets forth requirements for the use of a skilled and trained workforce of all workers that are either skilled journeypersons or registered apprentices to perform specified work on state agency design-build projects, local agency design-build projects, and at certain stationary sources posing a regulated substances accident risk.  This bill would deem an electrician certified pursuant to those standards a skilled journeyperson for purposes of any law.  Adds Labor Code section 108.6.  Senate Labor and Industrial Relations Committee.*

SB 667. Under existing law, a disabled individual is eligible to receive disability benefits equal to one-seventh of his or her weekly benefit amount for each full day during which he or she is unemployed due to a disability if the Director of Employment Development makes specified findings, including that the individual has been unemployed and disabled for a waiting period of seven consecutive days during each disability benefit period. Existing law provides that during this seven-day waiting period, no disability benefits are payable.  This bill would waive the seven-day waiting period for an individual who has already served the seven-day waiting period for the same or a related condition within the previous 60 days.  Amends Unemployment Insurance Code section 2627.  Senate Labor and Industrial Relations Committee.*

SB 702. Existing law requires, if an employer is a temporary services employer, that the “Wage Theft” notice include the name, physical address of the main office, the mailing address, if different from the physical address, and the telephone number of the legal entity for whom the employee will perform work. This bill would require the temporary services employer to include in the notice the email address, if one is on file with the temporary services employer, of the legal entity for whom the employee will perform work.  Amends Labor Code section 2810.5.  Senate Labor and Industrial Relations Committee.*

SB 730 would prohibit, on and after February 1, 2016, a train or light engine used in connection with the movement of freight, as specified, from being operated unless it has a crew consisting of at least two individuals. The bill would authorize the Public Utilities Commission to assess civil penalties against any person who willfully violates this provision.  Adds Labor Code section 6903.  Senate Labor and Industrial Relations Committee.*

Other State Political Developments

The California Department of Fair Employment and Housing finalized regulations relating to the application of the California Family Right Act. The regulations can be found at 2 CCR section 11087 et seq.  The new and amended regulations take effect July 1, 2015.  Among the new provisions is an expanded definition of an “employer” (a.k.a. “covered employer” (2 C.C.R §11087(d)(3)(A)-(C)) (underscoring added): 

(3) Where two or more businesses exercise some control over the work or RA. Joint employers may be separate and distinct entities with separate owners, managers, and facilities. A determination of whether or not a joint employment relationship exists is not determined by the application of any single criterion, but rather the entire relationship is to be viewed in its totality based on the economic realities of the situation. Where the employee performs work which simultaneously benefits two or more employers, or works for two or more employers at different times during the workweek, a joint employment relationship generally will be considered to exist in situations such as:

A. Where there is an arrangement between employers to share an employee’s services or to interchange employees; 

B. Where one employer acts directly or indirectly in the interest of the other employer in relation to the employee; or

C. Where the employers are not completely disassociated with respect to the employee’s employment and may be deemed to share control of the employee, directly or indirectly, because one employer controls, is controlled by, or is under common control with the other employer. 

The new regulations are consistent with the expanded theory of joint-employer liability created for wage and hour matters in 2013-2014’s AB 1897 (Labor Code § 2810.3). 

The next key date in California’s legislative calendar is May 15, which is the last day for policy committees to hear and report to the floor non-fiscal bills introduced in their chambers. 

All bills, committee reports, votes, and bill assignments can be accessed at http://leginfo.legislature.ca.gov.