California Employment Law Update 2015

In 2014, the California Legislature passed several new laws affecting employers, ranging from the heavily publicized sick-leave statute, requiring employers to provide paid sick leave to employees, to the less-hyped Assembly Bill 326, amending the Labor Code to now permit employers to report workplace accidents via email.

Below is a review of some of the significant employment-related laws that will affect employers in the coming year and suggestions on what employers should do to prepare for the impending changes. Unless otherwise indicated, each new law will become effective as of January 1, 2015.

Review current policies to assess whether your sick leave or other paid leave policies comply with the new statute’s requirements

Assembly Bill 1522, the Healthy Workplaces, Healthy Families Act of 2014, requires employers to provide paid sick days each year to eligible California employees, including part-time and temporary employees. The Labor Commissioner’s Office recently issued a set of Frequently Asked Questions (FAQs) clarifying its view of a few of the nuances within the newly enacted law. For starters, the new law goes into effect on January 1, 2015; however, certain key aspects will not go into effect until July 1, 2015. Specifically, the required employee notices as well as qualification periods that determine which employees are eligible for paid sick leave go into effect on January 1, 2015. By contrast, the employees’ right to accrue and take sick leave will not go into effect until July 1, 2015. As indicated in our most recent E-Alert covering the law, employers who restrict the use of sick leave or paid time off to employees who work a minimum number of hours per week will either need to expand their current policy’s coverage or make a separate policy that gives the statutorily mandated minimum number of sick days to employees not eligible for the benefit under the employer’s current policy. Employers also should review whether existing sick leave policies allow use of sick leave for all purposes prescribed by the new law. The posting and notice requirements of the new law were also addressed in the recent FAQs. Employers should be sure to use the newly released workplace poster as well as the recently revised Wage Theft Notice template. We will be providing a more comprehensive overview of the recently issued FAQs in a separate, upcoming E-Alert.

Revise supervisory training on sexual harassment to include training on the prevention of bullying in the workplace

Assembly Bill 2053 requires that employers with fifty or more employees provide supervisors with training on the prevention of “abusive conduct” in the workplace, every two years, in conjunction with required, sexual-harassment training. The statute defines “abusive conduct” 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 interest.” The new law does not give employees the ability to sue an employer based on abusive workplace conduct. However, a claim could be actionable if it rises to the level of discrimination or harassment on the basis of one’s protected class.

Review and revise existing labor contracts and obtain assurances from labor contractors regarding their compliance with labor laws

Assembly Bill 1897 prohibits companies from shifting legal duties or liabilities under workplace safety provisions with respect to workers supplied by labor contractors. Employers now will share liability for staffing-firm violations of certain labor and employment laws. The statute states that a “client employer” will share liability with labor contractors for the labor contractor’s failure to pay wages and provide workers’ compensation coverage. Employers should consider including indemnification and/or duty-to-defend provisions for wage-and-hour violations and workers’ compensation coverage in contracts. Employers also should carefully conduct their due diligence prior to retaining any labor services in order to verify the contractor’s compliance with labor laws and limit the risk of retaining non-compliant contractors.

Review and update policies to include interns and volunteers in anti-harassment and other related polices

Assembly Bill 1443 provides new legal protections for unpaid interns and volunteers with respect to harassment and discrimination. Employers may be liable for violations of California’s Fair Employment and Housing Act (FEHA) if their unpaid interns or volunteers are unlawfully harassed, discriminated against on the basis of a legally protected classification, or not provided religious accommodations as applied to employees. In addition to updating their anti-harassment and other relevant policies to include interns and volunteers, employers should notify interns and volunteers of both their rights under this new law and the company’s complaint procedures.

Review and update handbook as well as related anti-discrimination policies

Assembly Bill 1660 expands prohibitions against national-origin discrimination by amending FEHA to prohibit discrimination against individuals with driver’s licenses issued to undocumented immigrants. While the new law does not alter an employer’s obligations to comply with federal immigration laws, it does make it unlawful national origin discrimination under FEHA for an employer to discriminate against employees who have specially designated “DP” licenses.

Revise policies covering “emergency rescue personnel” to include additional categories

Assembly Bill 2536 expands the current definition of “emergency rescue personnel” to include an officer, employee, or member of a disaster, medical-response entity sponsored or requested by the state. Under Labor Code Section 230.3, employers are prohibited 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. Employers should revise their policies to include the more expansive definition of “emergency rescue personnel.”

Employers permitted to extend health insurance waiting period to 90 days

Senate Bill 1034 prohibits health-plan insurers from imposing additional waiting periods in California. The new law repeals the 2011 state law that set a 60-day limit on waiting periods for group health plans. This new law permits California employers to set longer waiting periods so long as that the waiting period complies with the federal Patient Protection and Affordable Care Act, which permits waiting periods of up to 90 days and a maximum one-month orientation period immediately before the waiting period.

Employers now may report workplace accidents to Cal/OSHA via email

Assembly Bill 326 amends Labor Code Section 6409.1 and permits employers to report certain workplace accidents to the California Division of Occupational Safety and Health (DOSH) by email (replacing the old law’s reference to “telegraph”). This new law does not greatly alter existing law; however, employers should be sure they are complying with accident reporting requirements. That is, employers should be sure to immediately report all accidents involving serious injury, illness or death – meaning no more than 8 hours after the employer knows or with diligent inquiry would have known of the death or serious injury or illness. If the employer can demonstrate that exigent circumstances exist, the time frame for the report may be made no longer than 24 hours after the incident.. 8 CCR §342(a).

Law provides additional penalties for child labor law violations

Assembly Bill 2288, the Child Labor Protection Act of 2014, adds Section 1311.5 to the Labor Code and provides additional penalties for violations of California labor laws with respect to the employment of minors. The law states that the statute of limitations for a child-labor violation is tolled until the child reaches the age of eighteen. Civil penalties for Class “A” violations involving a minor under twelve years of age have been increased to $25,000 – $50,000 from $5,000 – $10,000. Additionally, the statute allows for treble damages if an individual is discriminated or retaliated against because he or she filed a claim or civil action alleging a violation of the California Labor Code that arose while the individual was a minor.

Law expands methods for imposing waiting-time penalties

Assembly Bill 1723 permits the Labor Commissioner to impose waiting-time penalties as part of the citation process. Prior to this law, waiting-time penalties under Section 203 of the Labor Code could only be recovered as part of an administrative hearing or civil action. The new law provides for a new method of enforcement rather than a new penalty.

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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.

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