California Employment Law Update 2014

California Employment Law Update 2014

In 2013, California passed a variety of laws affecting employers, from increasing the minimum wage to prohibiting immigration-related retaliation.  Several new laws will require California employers to revise their existing handbooks and policies.  In our previous E-Alert, we explained that, starting July 1, 2014, the minimum wage will increase from $8.00 per hour to $9.00 per hour, and will increase again to $10.00 per hour on January 1, 2016.  We also explained that, starting January 1, 2014, nannies, caregivers, and other personal attendants working in private homes in California will be entitled to overtime pay.  Below, we review other legislative changes that will affect employers in the new year.  Unless otherwise noted, all new legislation goes into effect on January 1, 2014.

Revise Your Handbook: Leave for Crime Victims

S.B. 288 adds Section 230.5 to the Labor Code which now provides that an employer shall not discharge or in any manner discriminate or retaliate against an employee who is a victim, or the family member of a victim, of a select group of crimes for taking time off from work to appear in court or any proceeding in which a right of the victim is at issue.  (This new law will supplement existing law providing victims of serious and violent felonies time off to attend judicial proceedings.)  The enumerated offenses that entitle victims to such leave include: sexual assault, felony domestic violence, felony child abuse, assault resulting in the death of a child, felony physical abuse of an elder, felony stalking, solicitation for murder, hit-and-run causing death or injury, vehicular manslaughter while intoxicated, felony driving under the influence causing injury, and a serious injury as defined by the Penal Code.  This leave is applicable to employees of all employers – regardless of the employer’s size.  Employees must give their employer reasonable advance notice of the need for such leave, but if an unscheduled absence occurs, the employer must not take any action against the employee if the employee provides certification of the need for such leave within a reasonable time after the absence. 

Employers are encouraged to update their handbooks to reflect this new entitlement to leave.  Contact your SFSS&W attorney for assistance in integrating this new leave into your personnel policies.  

Revise Your Handbook: Leave for Victims of Stalking and Non-Discrimination Against Victims of Domestic Violence, Sexual Assault, and Stalking

S.B. 400 extends existing protections for victims of domestic violence and sexual assault to victims of stalking.  All employers are prohibited from discharging or in any manner discriminating or retaliating against an employee who is a victim of stalking for taking time off from work to obtain or attempt to obtain any relief, including, but not limited to, a temporary restraining order, restraining order, or other injunctive relief to help ensure the health, safety, or welfare of the victim or his or her child.  Previously, this leave was only required for victims of domestic violence and sexual assault. 

S.B. 400 also requires employers with 25 or more employees to allow an employee who is a victim of stalking to be absent from work to seek medical attention or psychological counseling, or to participate in safety planning related to such stalking.  Previously, this leave was only required for victims of domestic violence and sexual assault. 

The law also now prohibits all employers 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.  The new law also requires all employers to provide reasonable accommodations for victims of domestic violence, sexual assault, or stalking.

Employers should update their handbooks to expand the protections for victims of domestic violence and sexual assault to now also include victims of stalking.  Contact your SFSS&W attorney for assistance in updating your existing policies. 

Revise Your Employee Handbooks: Protection for Military and Veteran Status

A.B. 556 adds “military and veteran status” to the list of categories protected from employment discrimination under California’s Fair Employment and Housing Act (FEHA), which currently includes: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, and sexual orientation. “Military and veteran status” is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.  The new legislation specifically provides that nothing shall prevent employers from identifying members of the military or veterans for purposes of awarding veterans preference as permitted by law.

While military veterans and active-duty military personnel are protected against discrimination under federal law, California employers should ensure that employee handbooks – most likely the Equal Employment Opportunity policy – are updated to prohibit discrimination on account of “military and veteran status.”

Sexual Harassment – No Sexual Desire Required

In S.B. 292, the California legislature amended the definition of harassment to clarify that sexually harassing conduct need not be motivated by sexual desire.  The amendment was passed in response to a controversial decision by the California Court of Appeals in Kelley v. Conco Companies, 196 Cal. App. 4th 191 (2011).  In that case, a male union apprentice ironworker claimed he was subjected to sexually explicit comments regarding his body and threats of sexual acts by a supervisor.  The Court of Appeal affirmed summary judgment against Kelley’s sexual harassment claim, finding that, although the statements made to Kelley were crude and offensive, there was no evidence that the statements were an expression of actual sexual desire or intent by the supervisor.  S.B. 292 overturns the Kelley decision and clarifies that an individual who brings a sexual-harassment claim under FEHA need not prove that the harassment was motivated by sexual desire.

Prohibition Against Retaliation Under the Labor Code

A.B. 263 amends the Labor Code to prohibit retaliating against an employee for complaining of unpaid wages or for otherwise exercising their rights under the Labor Code.  Prior to this amendment, the Labor Code only specifically prohibited discriminating against employees for exercising their rights under the Labor Code.  A.B. 263 also adds a civil penalty of up to $10,000.00 per employee per violation.  

Protections Against Unfair Immigration-Related Practices

A.B. 263 also prohibits employers from engaging in “unfair immigration-related practices” when an employee complains of unpaid wages or otherwise exercises their rights under the Labor Code.  Unfair immigration-related practices are defined to include any of the following practices when undertaken to retaliate against employees for exercising their rights under the Labor Code: threatening to contact or contacting immigration authorities, requesting more or different documents than what is required under federal I-9 rules, refusing to honor documents that appear genuine on their face, using federal E-verify to check status in a manner not required or authorized under the program, and threatening to file or filing a false police report.  The new law authorizes various penalties against employers who engage in such unfair immigration-related practices, including suspension of all licenses held by the employer for between 14 to 90 days.  The bill also permits employees or other individuals who are subject to an unfair immigration-related practice to bring a civil action against the employer.   

License Revocation for Threatening to Report Immigration Status

S.B. 666 prohibits employers from reporting or threatening to report the suspected citizenship or immigration status of an employee, former employee, or prospective employee (or any family member of such employees) to a federal, state or local agency because the individual complains about their employment or otherwise exercises any right under the Labor Code, Government Code, or Civil Code.  An employer’s business license may be suspended or revoked if the Division of Labor Standards Enforcement (DLSE) or a court finds that the employer has engaged in such conduct.  Suspension or revocation of business licenses does not apply to employers who request current or prospective employees to submit an I-9 Employment Eligibility Verification form within the first three days of employment.

Penalties for Denying Heat-Illness Recovery Periods

Since August 2005, California employers with any outdoor place of employment have been required to have a written Heat Illness Prevention Plan (which must include supervisory and non-supervisory training) and, among other factors, to provide employees with “recovery” periods to protect outdoor employees from the hazard of heat illness.  Employees are allowed and encouraged to take a cool-down rest in the shade for not less than five minutes at a time whenever they feel the need to protect themselves from overheating. 

Under a new California law passed this year, employers who fail to provide employees with these heat-related recovery periods are subject to monetary penalties of one hour’s pay for every missed “recovery period.”  This is the same civil penalty as when employers fail to provide meal or rest periods. 

Employers should review their Heat Illness Prevention Plans and ensure that their employees are properly trained in accordance with Cal-OSHA regulations.  For questions about creating and implementing your company’s Heat Illness Prevention Plan, please contact your SFSSW attorney.

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Employers are encouraged to review their policies, procedures, practices and employment-related agreements in light of these legislative changes.  Please contact your SFSS&W attorney to ensure compliance with these new laws, or should you have any questions regarding these or other labor and employment law matters.

 

Name Extension E-Mail
Millicent N. Sanchez 8203 msanchez@swerdlowlaw.com
Janet I. Swerdlow 8202 jswerdlow@swerdlowlaw.com
David A. Wimmer 8201 dwimmer@swerdlowlaw.com
Lori M. Yankelevits 8205 lyankelevits@swerdlowlaw.com
Karen E. Rhodes 8206 krhodes@swerdlowlaw.com
Emily Camastra 8213 ecamastra@swerdlowlaw.com

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