December 2, 2014
In California, more than a dozen new employment-related laws are set to go into effect next year. Some of these may require employers with a presence in California to make extensive revisions to their policies and practices while others may subject employers to extensive new potential exposure. Key changes that you need to be aware of are summarized below.
AB 1443 – Unpaid Interns
AB 1443 extends legal protections against discrimination and harassment to unpaid interns and other participants in training programs of limited durations. The bill amends Government Code Section 12940 (FEHA) to make it unlawful to "discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against." Neither state nor federal laws currently protect unpaid interns from sexual discrimination at work. Under AB 1443, unpaid interns will have the same protections against retaliation and harassment as their paid colleagues. The bill was approved by the Governor on September 9, 2014 and goes into effect January 1, 2015.
AB 1522 – Paid Sick Leave
The new California paid sick leave law is discussed at length in a separate client alert, which can be accessed here: Gibson Dunn AB 1522 Alert.
AB 1660 – Driver’s Licenses
Existing law requires the Department of Motor Vehicles (DMV) to issue an original 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 it a violation of the California Fair Employment and Housing Act (FEHA) for an employer to discriminate against an individual because he or she holds or presents a driver’s license issued under these provisions. The bill further provides that it is a violation of FEHA for an employer to require an employee to present a driver’s license, unless possession of a valid driver’s license is "required by law or is required by the employer and the employer’s requirement is otherwise permitted by law." The bill was signed by the Governor on September 19, 2014 and goes into effect January 1, 2015.
AB 1792 – Prohibition of Discrimination Against Employees Receiving Public Assistance
AB 1792 creates Government Code section 13084, which prohibits employers from (1) discharging, or in any matter discriminating or retaliating against an employee who enrolls in a public assistance program; (2) refusing to hire a person because he or she is enrolled in a public assistance program; and (3) disclosing to any person or entity that an employee receives or is applying for public benefits, unless otherwise permitted by state or federal law to do so. The bill also requires the Employment Development Department and Department of Finance to develop and publish a list of California’s top 500 employers with the largest number of employees enrolled in a public assistance program. The bill was signed by the Governor on September 30, 2014 and goes into effect January 1, 2015. It expires on January 1, 2020 unless extended, amended or made permanent by then.
AB 1897 – Expanding Liability for Contractor’s Wage and Hour Violations
Under AB 1897, employers, with limited exceptions, must "share with a labor contractor all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage." The bill applies to "client employers," which are defined as business entities that obtain or are provided workers to perform labor within their usual course of business from a "labor contractor." Excepted from the "client employer" category are: (1) business entities with less than 25 workers, including those obtained from any labor contractor; (2) business entities with five or fewer workers supplied by a labor contractor; and (3) the state or any political subdivision of the state. Employers are prohibited from attempting to contract around the law’s requirements and shift liability back to the labor contractor, however, they may establish, exercise or enforce by contract "any otherwise lawful remedies against a labor contractor for liability created by acts of a labor contractor." The bill was signed by the Governor on September 28, 2014 and goes into effect January 1, 2015.
AB 2053 – Expands Sexual Harassment Training to Include Workplace Bullying
Employers with 50 or more employees are already obligated to provide sexual harassment training to supervisory employees every two years. Under AB 2053, this training must also include a component on preventing "abusive conduct" in the workplace. "Abusive conduct" is defined as "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." It includes 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." However, a single act "shall not constitute abusive conduct, unless especially severe and egregious." It is worth noting, however, that while the bill expands training requirements for California employers, it does not take the next step of amending FEHA to prohibit the conduct. The bill was signed by the Governor on September 9, 2014 and goes into effect January 1, 2015.
AB 2536 – Emergency Rescue Personnel
Existing law prohibits an employer from discharging or in any manner discriminating against an employee for taking time off to perform emergency duty as a volunteer firefighter, reserve peace officer, or emergency rescue personnel. AB 2536 expands the definition of "emergency rescue personnel" to include an "officer, employee, or member of a disaster medical response entity sponsored or requested by the state." The new law also requires employees to notify their employers if they are health care providers as well as when they are notified that they will be deployed as a result of that designation. The bill was signed by the Governor on September 15, 2014 and goes into effect January 1, 2015.
AB 2751 – Retaliation
Existing law prohibits employers from engaging in unfair immigration-related practices against employees in retaliation for exercising a protected right under state labor and employment laws or under a local ordinance applicable to employees. Under AB 2751, the $10,000 civil penalty for violating this provision would be awarded to the employee(s) who suffer the violation, not the state. AB 2751 also broadens the definition of unfair immigration-related practices to include filing or threatening to file a false report or complaint with any state or federal agency, as well as authorizes a civil action for equitable relief and damages by anyone who is the subject of an unfair immigration-related practice. Finally AB 2751 limits the prohibition against discriminating or retaliating against employees who update or attempt to update their personal information to updates "based on a lawful change of name, social security number, or federal employment authorization document." The bill was approved by the Governor on June 28, 2014 and goes into effect January 1, 2015.
SB 1360 – Rest and Recovery Periods
SB 1360 clarifies that recovery periods afforded to employees to prevent heat illness "shall be counted as hours worked, for which there shall be no deduction from wages." California law was previously silent on whether such recovery periods should be counted as paid time. The bill was approved by the Governor on June 28, 2014 and goes into effect January 1, 2015.
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The new laws described above may implicate additional requirements in addition to those described. For more information about these new laws and for any of your labor and employment needs, please contact the Gibson Dunn labor and employment lawyer with whom you work or any of the following.
Gibson, Dunn & Crutcher’s lawyers are available to assist with any questions you may have regarding these issues. For further information, please contact the Gibson Dunn lawyer with whom you usually work or any of the following lawyers in the firm’s Labor and Employment Practice Group:
Eugene Scalia – Co-Chair, Washington, D.C. (202-955-8206, [email protected])
Catherine A. Conway – Co-Chair, Los Angeles (213-229-7822, [email protected])
Scott A. Kruse – Los Angeles (213-229-7970, [email protected])
Michele L. Maryott – Orange County (949-451-3945, [email protected])
Jesse A. Cripps – Los Angeles (213-229-7792, [email protected])
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