2014 New Labor and Employment Laws for California Employers
Car Wash Industry
Criminal Background Checks
Leaves of Absence
Paid Family Leave
Wage and Other Claims
- Increased Bond Requirement for Car Washes. Employers of car washes must post a $15,000 bond for the benefit of the state to compensate employees damaged by the employer's nonpayment of wages. AB 1387 increases the employer's bond requirement amount to $150,000, but provides an exemption for employees who have a collective bargaining agreement in place that meets specified criteria.
Criminal Background Checks
- Added Limits to Criminal History Inquiries. Current California law prohibits employers from asking employees or applicants about, or using as a factor in employment decisions, any arrests that did not result in conviction (unless pending trial), arrests that led to diversion programs, or older marijuana convictions. SB 530 now adds to that list any information concerning a conviction that has been judicially dismissed or ordered sealed unless: (1) the employer is required by law to obtain information regarding a conviction of an applicant; (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, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed; or (4) the employer is prohibited by law from hiring an applicant who has been convicted of a crime.
- Military and Veteran Status Become Protected Classes. AB 556 amends the Fair Employment and Housing Act to add "military or veteran status" to the classes protected from employment discrimination. The amendment still allows employers to identify members of the military or veterans for purposes of awarding a "veteran's preference as permitted by law," but employers should proceed with caution when making inquiries about military service in job applications or in connection with hiring decisions.
- Domestic Workers Now Entitled to Overtime Pay. The "Domestic Worker Bill of Rights" requires that overtime be paid to domestic workers when they work over 9 hours in one work day or 45 hours in one work week. "Domestic workers" are caretakers in private households such as childcare providers, caregivers of people with disabilities, sick, or elderly persons, housekeepers and maids but not workers who care for persons in facilities providing board or lodging in addition to medical, nursing, convalescent, aged or child care. Babysitters who are either minors or are casual babysitters employed on an irregular and intermittent basis are exempted from the overtime requirement as long as they do not perform a "significant amount of work" other than supervising, feeding and dressing children. In addition, workers who are close relatives of the employer are not covered.
- New Immigration Status Protections. AB 263 prohibits an employer from engaging in an "unfair immigration-related practice" when an employee exercises a right protected under state labor and employment laws. An unfair immigration practice includes requesting additional immigration documentation, using E-Verify when not authorized, threatening to file or filing a false police report, or threatening to contact or contacting immigration authorities. There is a rebuttable presumption that an adverse action taken within 90 days of the employee exercising a protected right is retaliatory. Employees can bring a civil action for a violation of this statute and seek damages, equitable relief, penalties, costs and attorneys' fees. SB 666 also subjects an employer's business license to suspension or revocation if the employer has been found to have violated these new provisions.
Leaves of Absence
- Peace Officers and Rescue Personnel Now Entitled to Leaves of Absence. Employers employing 50 or more employees must permit an employee who is a volunteer firefighter to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in fire or law enforcement training. AB 11 now requires these employers to also permit employees who perform emergency duty as a reserve peace officer or as emergency rescue personnel to take the same leave for the purpose of engaging in law enforcement or emergency rescue training.
- Stalking Victims Added to the Labor Code’s Protections. Existing law provides protections to victims of domestic violence or sexual assault. Employers may not take adverse employment action against a victim of domestic violence or sexual assault when they take time off from work to attend to related issues. SB 400 extends these protections to victims of stalking. SB 400 also adds a provision to the Labor Code requiring employers to provide reasonable accommodations to victims of domestic violence, sexual assault, and stalking. Employers must engage in an interactive process with the employee to determine the effective reasonable accommodation. Like other accommodation requirements, employers must grant a reasonable accommodation to these individuals unless the employer can show undue hardship. Employers can require certification of victim status before granting the reasonable accommodations.
- Crime Victims’ Rights Expanded. Employers currently may not discharge or in any manner discriminate against an employee who is a victim of a crime or domestic violence or sexual assault for taking time off to appear in court as a witness or attempt to obtain relief. SB 488 expands these protections to various other crime victims.
- Increased Minimum Wage. Effective July 1, 2014, the hourly minimum wage for non-exempt employees will increase from $8.00 per hour to $9.00 per hour. The minimum wage will increase again on January 1, 2016 to $10.00 per hour. This increase impacts exempt employees as well because most of the California wage exemptions require that exempt employees earn a monthly salary equivalent to no less than two (2) times the state minimum wage. With the increase in the minimum wage to $9.00 per year beginning on July 1, 2014, exempt employees will have to earn $3,120.00 per month to qualify for the exemption. Thus, employers should not delay undertaking a compensation review of their exempt employees to ensure compliance with the new California requirements.
Paid Family Leave
- California Paid Family Leave Benefits Extended to More Family Members. The California temporary disability insurance program provides up to 6 weeks of wage replacement benefits to workers who take time off work to care for a seriously ill child, spouse, parent or domestic partner, or to bond with a minor child within one year of the birth or placement of the child in connection with foster care or adoption. Effective July 1, 2014, the law 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, as defined.
- Revised Definition of Sexual Harassment. SB 292 revises the Fair Employment and Housing Act to specifically provide that employees who assert claims of sexual harassment need not show that harassment is motivated by sexual desire. Thus, sexually offensive conduct or statements that are unrelated to sexual desire can now form the basis for a sexual harassment claim.
Wage and Other Claims
- Labor Commission Can Now Order Double Damages for Minimum Wage Violations. AB 442 authorizes the California Labor Commissioner to award liquidated damages equal to the amount of unpaid wages owed, plus interest, when an employer violates California's minimum wage law. An employer can defend against these liquidated damages by demonstrating that it acted in good faith and had reasonable grounds for believing it was in compliance.
- Labor Commissioner Can Place Lien on Employer’s Property. AB 1386 makes it easier for employees to collect damages awarded by the Labor Commissioner. The bill provides that once a Labor Commissioner Order, Decision or Award becomes final, the Labor Commissioner may place a lien against the employer's real property for up to 10 years, unless the order is satisfied or released.
- Limit on Employer’s Ability to Recover Defense Costs in a Wage Claim. SB 462 limits an employer's ability to recover its attorney's fees and costs in a wage action. An employer who prevails on a wage claim can only recover its fees and costs if it can prove that the employee brought the court action in "bad faith."
- Whistleblower Protections Expanded. SB 496 prohibits, in addition to the employer, any person acting on behalf of the employer from making, adopting, or enforcing any rule, regulation, or policy preventing an employee from disclosing information to a government or law enforcement agency, where the employee has reasonable cause to believe that the information discloses a violation of state or federal law, or a violation or noncompliance with a state or federal rule or regulation. SB 496 also prevents any person acting on behalf of the employer from retaliating against an employee for such disclosure.