Although this year resulted in fewer new employment laws than in recent years, several taking effect in 2015 should be noted. The following is a partial list of new laws that will affect many employers’ day-to-day operations and may require review of employer policies and procedures to ensure continued compliance.
Mandatory Paid Sick Leave. AB 1522 enacted the Healthy Workplaces, Healthy Families Act of 2014 (the “Paid Sick Leave Law”) which requires employers to provide up to 24 hours or three days of paid sick leave annually to their employees beginning July 1, 2015. Certain exemptions are provided for employees covered by collective bargaining agreements. Key obligations under the Paid Sick Leave Law include:
On or after July 1, 2015, an employee who works in California for 30 or more days begins accruing sick leave at a rate of at least one hour of leave for every 30 hours worked.
Employees are entitled to use accrued sick leave beginning on the 90th day of employment. Employers may limit the use of accrued sick leave by an employee to 24 hours or three days in a year.
Employers must permit employees to “carry over” to the following year of employment any accrued but unused sick leave. Sick leave accrual may be capped, but at not less than 48 hours or six days. Alternatively, an employer can avoid sick leave accrual and carry over obligations by providing the full amount of leave (i.e., 24 hours or three days) to employees at the beginning of each year.
Unlike vacation pay, accrued but unused sick leave is not required to be paid out to an employee upon termination of employment. However, if an employee is rehired by the employer within one year from the date of a separation, previously accrued and unused paid sick days must be reinstated.
Employers must post notices in their workplaces, provide individual notices to employees concerning sick leave rights, and indicate the amount of paid sick leave available on employee itemized wage statements or in a separate writing provided on each designated pay day with the employee’s paycheck.
Employers must maintain adequate records for at least three years.
Employers should evaluate their current sick leave and paid time off (PTO) policies to determine compliance with the Paid Sick Leave Law and ensure that their human resources and supervisory staff are educated on Paid Sick Leave Law requirements. Employers should be prepared to issue the required notices to employees and to post the required notice at their worksites. It will be important also to update payroll processes and systems to account for paid sick leave, to properly display sick leave information on employee wage statements and to maintain records required under the Paid Sick Leave Law.
Liability for Employers Using Contracted Labor. AB 1897 expands liability for a “client employer” who contracts with a “labor contractor” for provision of labor to include liability for wages and failure to provide workers’ compensation coverage. A “client employer” is a business entity that obtains or is provided workers to perform labor within its usual course of business from a labor contractor. A “client employer” does not include a business with a workforce of fewer than 25 workers (including those hired directly by the client employer and those obtained from a labor contractor) or a business with five or fewer workers supplied by labor contractors at a given time. A “labor contractor” is defined as an individual or entity that supplies a client employer with workers to perform labor within the client employer’s usual course of business.
Although AB 1897 states that liability is not imposed for independent contractor relationships other than those with a labor contractor, the definitions of “client employer” and “labor contractor” create uncertainty as to how the statute will be applied. Employers who utilize third party labor in conducting its business may want to evaluate potential risks since AB 1897 creates increased exposure to employee wage and hour claims.
Harassment Prevention Training: Prevention of Abusive Conduct. AB 2053 requires that mandatory sexual harassment training for supervisors include information on “abusive conduct,” which includes “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” AB 2053 provides examples of abusive conduct as potentially including “repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance.”
AB 2053 does not permit an employee to sue for abusive conduct in the workplace unless, of course, the conduct constitutes unlawful discrimination or harassment. It only requires that training include information on prevention of abusive conduct.
However, AB 2053 may likely portend future anti-bullying legislation, particularly in light of greater acknowledgement of the effects of bullying, such as in education settings. Employers should ensure that all new training of supervisors includes the required content.
Amendments to California’s Fair Employment and Housing Act (FEHA). AB 1443 adds unpaid interns and volunteers to the list of individuals protected under the FEHA, which prohibits discrimination and harassment based on various protected classifications such as race, religious creed, national origin, physical and mental disability, and sex. Employers are prohibited from discriminating against individuals in an unpaid internship or another limited duration program to provide unpaid work experience for that person.
AB 1660 amends the FEHA to provide that “national origin” discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under section 12801.9 of the Vehicle Code. Current law requires the Department of Motor Vehicles (DMV) to issue a driver’s license to a person who is unable to submit satisfactory proof that the applicant’s presence in the United States is authorized under federal law if he or she meets all other qualifications for licensure and provides satisfactory proof to the department of his or her identity and California residency. AB 1660 makes discrimination against an individual for having or presenting such a license a violation of the FEHA. However, it is not unlawful discrimination for an employer to take actions required to comply with federal I-9 verification obligations.
Background Checks: Criminal History Information in Public Contracts. AB 1650, the “Fair Chance Employment Act,” requires contractors who bid on state contracts involving on-site construction-related services to certify that they will not ask applicants for on-site construction-related jobs to disclose information concerning criminal history at the time of an initial employment application.
Commonly known as “ban the box” legislation, AB 1650 requires employers to remove the conviction history portion (or “check box”) from employment applications for covered employees. The limitation applies only to on-site construction related jobs that fall under the State Contract Act which includes the erection, construction, alteration, repair, or improvement of any state structure, building, road, or improvement project. Practically, this may cause affected employers to remove the conviction history box from all of their employment applications since maintaining multiple forms can lead to administrative confusion and errors in implementation. Importantly, AB 1650 does not prevent an employer from conducting a background check or inquiring about the conviction history of an applicant during a post-application interview.
Employers should keep in mind that existing law generally prohibits employers from asking an applicant for employment to disclose information concerning convictions that have been sealed, expunged, or statutorily eradicated, and certain marijuana-related convictions if the convictions are more than two years old.
Prohibition of Unfair Immigration-Related Practices. Last year, AB 263 made it unlawful for an employer to engage in an “unfair immigration-related practice,” such as threatening to contact immigration authorities or filing a false police report, in retaliation for a person engaging in protected activity under the Labor Code. This year, AB 2751 expands the definition of an “unfair immigration-related practice” to include threatening to file or the filing of a false report or complaint with any state or federal agency. AB 2751 also clarifies that an employer may not discriminate or take an adverse employment action against an employee because the employee updates or attempts to update his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.
Wage and Hour: Rest and Recovery Periods. SB 1360 amends Labor Code section 226.7 to clarify that recovery periods taken pursuant to heat illness regulations are hours worked and cannot be deducted from wages. Under Cal-OSHA’s Heat Illness Prevention Program, employers must meet requirements intended to deter heat illness for employees with outdoor places of employment, including providing and encouraging employees to take breaks of at least five minutes whenever the employee feels the need to do so. The regulations do not expressly set limits on the number of “cooldown” periods an employee may take in a single day, and they do not set a maximum time limit for each “cooldown” break.
Last year, SB 435 created civil liability by extending the premium wage provisions of section 226.7 to require one hour of pay by an employer who fails to provide an employee a recovery period required by the Occupational Safety and Health Standards Board or the Division of Occupational Safety and Health.
If you have any questions regarding any of the foregoing new laws or need assistance with any labor or employee relations matter, please contact an attorney in our Labor and Employment Group.