Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
It’s all over now but for the gubernatorial pen strokes – or not.
In the usual last-minute rush, the California legislature this week ended its 2013 session by passing more than 400 bills and sending them to Governor Jerry Brown for signing or vetoing.
The major non-employment bills considered in the last week dealt with prison overcrowding, immigration (drivers’ licenses, lawyer admissions, and jury service for undocumented residents), California Environmental Quality Act (CEQA) reform, gun control, public school student testing, and regulation of hydraulic fracturing (fracking).
In the private sector employment arena, the key bills awaiting the Governor’s decision provide for a minimum wage increase, establish new causes of action and penalties for discrimination or retaliation on the basis of immigration status (which may set up conflicts with the federal government’s policies on that subject), protect victims of stalking, create a right to overtime for domestic workers, and add military and veteran status to the protected categories specified in the Fair Employment and Housing Act (FEHA).
The Governor has 30 days to sign or not sign (veto) bills passed this month.
The Major Private Sector Employment Bills Passed Last Week
- AB 10 (last amended September 11) would amend section 1182.12 of the Labor Code to increase the minimum wage on and after July 1, 2014, to not less than $9 per hour, and to further increase the minimum wage, on and after January 1, 2016, to not less than $10 per hour. The Governor has said he will sign this bill.
- AB 263 (last amended September 3) would, among other things, add Labor Code section 1019 to prohibit specified "unfair immigration-related practices," increase civil penalties to as high as $10,000 per employee per violation for any retaliation against an employee, authorize a private right of action for equitable relief, damages, and penalties, and require a court to order the appropriate government agencies to suspend or revoke an offending employer’s business license. The bill would expand the protected conduct to include a written or oral complaint by an employee that he or she is owed unpaid wages. The bill would also expand the prohibited actions to include preventing an employee from, or retaliating against an employee for, providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry. The bill is double-jointed1 with SB 496.
- SB 666 (last amended September 4) would add sections 494.6 and 6103.7 to the Business and Professions Code, amend sections 98.6 and 1102.5 of, and add section 244 to, the Labor Code, to subject specified business licenses to suspension or revocation, with a specified exception, if the licensee has been determined by the Labor Commissioner or the court to have violated specified law and the court or Labor Commissioner has taken into consideration any harm such suspension or revocation would cause to employees of the licensee, as well as the good faith efforts of the licensee to resolve any alleged violations after receiving notice. The bill would subject a licensee of an agency within the Department of Consumer Affairs who has been found by the Labor Commissioner or the court to have violated specified law to disciplinary action by his or her respective licensing agency. The bill would make it a cause for suspension, disbarment, or other discipline for any member of the State Bar to report suspected immigration status or threaten to report suspected immigration status of a witness or party to a civil or administrative action or his or her family member, as defined, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment. The bill would also prohibit an employer from retaliating or taking adverse action against any employee or applicant for employment because the employee or applicant has engaged in protected conduct. The bill would expand the protected conduct to include a written or oral complaint by an employee that he or she is owed unpaid wages. The bill would subject an employer to a civil penalty of up to $10,000 per violation of these provisions. Existing law entitles an employee to reinstatement and reimbursement for lost wages and benefits if the employee has been discharged, demoted, suspended, or in any way discriminated against because the employee engaged in protected conduct or because the employee made a bona fide complaint or claim or initiated any action or notice, as prescribed. The bill would similarly grant these entitlements to an employee who is retaliated against or subjected to an adverse action. The bill is double-jointed with SB 496. According to committee reports, the bill is sponsored by the California Labor Federation.
- SB 400 (last amended August 6) would extend current protections required of employers for employees who are victims of domestic violence and sexual assault to employees who are known or suspected victims of stalking, and require reasonable accommodations.
- AB 241 (last amended September 6) would enact the “Domestic Worker Bill of Rights” until January 1, 2017, to regulate certain domestic work employees’ work hours and provide an overtime compensation rate for those employees.
- AB 729 would create a new evidentiary privilege, making confidential most communications between a union agent and a union member. The bill is double-jointed with AB 267.
- AB 556 (last amended April 11) would amend Government Code section 12920 and related sections to add the protected category of “military and veteran status” to the FEHA.
The Remaining Finalists For The Governor’s Signature or Veto
AB 302 (last amended August 12) would amend Labor Code section 1720. Existing law requires that, except as specified, not less than the general prevailing rate of per diem wages, determined by the Director of Industrial Relations, be paid to workers employed on public works projects. Existing law defines “public works” to include, among other things, construction, alteration, demolition, installation, or repair work done under contract and paid for, in whole or in part, out of public funds, but exempts from that definition, among other projects, an otherwise private development project if the state or political subdivision provides, directly or indirectly, a public subsidy to a private development project that is de minimis in the context of the project. Public subsidy is de minimis if it is both less than $25,000 and less than 1% of the total project cost. The bill would specify that those provisions do not apply to a project that was advertised for bid, or a contract that was awarded, before January 1, 2014.
AB 442 would amend Labor Code sections 1194.2 and 1197.1 to expand the civil penalty and the payment of restitution of wages an employer must pay to the employee for a Labor Commissioner citation to also include payment of liquidated damages.
AB 1140 (last amended May 24) would amend Labor Code section 1773.6 to require that if the Director of Industrial Relations determines, within a semiannual period, that there is a change in any prevailing rate of per diem wages in a locality, that determination applies to any public works contract that is awarded or for which notice to bidders is published on or after January 1, 2014. The bill would authorize any contractor, awarding body, or specified representative affected by a change in rates on a particular contract to, within 20 days, file with the director a verified petition to review the determination of that rate. The bill would require the director to, upon notice to the interested parties, initiate an investigation or hold a hearing, and, within 20 days after the filing of that petition, except as specified, make a final determination and transmit the determination in writing to the awarding body and to the interested parties. The bill would make that determination issued by the director effective 10 days after its issuance, and until it is modified, rescinded, or superseded by the director.
AB 1165 (last amended September 3) would amend Labor Code section 6600 to provide that an appeal of an OSHA citation or notice that is classified and cited as a serious violation, repeat serious violation, willful serious violation, willful violation, willful repeat violation, or failure to abate, shall not stay abatement dates and requirements, except as specified, and allow expedited appeal hearings.
AB 1336 (last amended June 24) would amend Labor Code sections 1741, 1771.2, and 1776 to change the deadline for service of wage and penalty assessments by the Labor Commissioner on public works projects, modify the date by which any action by a joint labor-management committee to enforce prevailing wage requirements must be filed, and would also change the permissible amount of redacting an employer can make to payroll records kept for inspection by public works contractors.
AB 1386 (as amended September 4) would amend Labor Code section 98.2 to provide that, upon an order of the Labor Commissioner becoming final, a lien is created and the Labor Commissioner may record a certificate of lien, as specified, with the county recorder of any county in which the employer’s property may be located. The bill would provide that the lien would continue on the employer’s real property until satisfied or released, as provided, or for 10 years, as specified, and would require the county recorder to accept, record, and index the certificate of lien, as specified.
AB 1387 (amended April 18) would amend section 2055 and repeal section 2067 of the Labor Code to increase the car wash employer’s bond requirement amount from $15,000 to $150,000, but would exempt an employer from that requirement if the employer has a collective bargaining agreement in place that meets specified criteria, and would delete the existing sunset date for the statute governing car washes, thus extending those provisions indefinitely.
SB 7 (last amended August 7) would make certain findings and add Labor Code section 1782 to prohibit a charter city from receiving or using state funding or financial assistance for a construction project if the city has a charter provision or ordinance that authorizes a contractor to not comply with prevailing wage provisions on any public works contract. The bill would, except as specified, prohibit a charter city from receiving or using state funding or financial assistance for a construction project for up to two calendar years if after January 1, 2014, the city has awarded, within the prior two years, a public works contract without requiring the contractor to comply with prevailing wage provisions. This bill would authorize charter cities to receive or use state funding or financial assistance if the city has adopted a local prevailing wage ordinance, applicable to all of its public works contracts, that includes requirements that are equal to or greater than the state’s prevailing wage requirements. This bill would exclude contracts for projects of $25,000 or less for construction work, or projects of $15,000 or less for alteration, demolition, repair, or maintenance work. This bill would require the Director of Industrial Relations to maintain a list of charter cities that may receive and use state funding and or financial assistance for their construction projects. This bill would provide that it does not restrict a charter city from receiving or using state funding or financial assistance that was awarded to the city prior to January 1, 2015, or from receiving or using state funding or financial assistance to complete a contract that was awarded prior to January 1, 2015, and that a charter city would not be disqualified from receiving or using state funding or financial assistance for its construction projects based on the city’s failure to require a contractor to comply with prevailing wage provisions in performing a contract the city advertised for bid or awarded prior to January 1, 2015.
SB 54 (last amended September 3). In its first four versions, this bill was an urgency measure concerning county employees’ retirement. In its fifth version, it was transformed by the “gut-and-amend” process into a bill that would add Health and Safety Code section 25536.7 to require an owner or operator of a stationary source with one or more covered processes that is required to prepare and submit a risk management plan, when contracting for the performance of construction, alteration, demolition, installation, repair, or maintenance work at the stationary source, to require that its contractors and any subcontractors use a skilled and trained workforce to perform all onsite work within an apprenticeable occupation in the building and construction trades, including skilled journeypersons paid at least a rate equivalent to the applicable prevailing hourly wage rate. The bill would not apply to oil and gas extraction operation.
SB 168 (last amended August 5) would add section 1698.9 to the Labor Code to make a successor farm labor contractor liable, as specified, for wages and penalties owed by a predecessor farm labor contractor.
SB 288 (last amended August 30) would add Labor Code section 230.5 to prohibit an employer from discharging or discriminating or retaliating against an employee who is a victim, as defined, of specified offenses, for taking time off from work to appear in court to be heard at any proceeding, including any delinquency proceeding, involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue.
SB 377 (last amended September 3) would amend Labor Code section 1773.5, and add section 1741.1 to require, when a request is made to the Director of Industrial Relations for a determination of whether a specific project or type of work awarded or undertaken by a political subdivision is a public work, that the Director make that determination within 60 days of receipt of the last support or opposition letter relating to that project or type of work, and for projects or types of work that are otherwise private development projects receiving public funds, within 120 days of receipt, except as specified. This bill would also require an administrative appeal of that determination to be made within 30 days of the date of the determination, and would require the Director of Industrial Relations to issue a determination on an appeal within 120 days after the receipt of the appeal, except as specified. This bill would grant to the director quasi-legislative authority to determine coverage of projects under prevailing wage requirements, and provide that a final determination on any appeal is subject to judicial review. The bill would make those determinations, and determinations relating to the general prevailing rate of per diem wages and for holiday, shift, and overtime work, exempt from the Administrative Procedure Act. The bill would also toll the period for service of assessments and for commencing an action brought by a joint labor-management committee for the period of time required by the Director of Industrial Relations to make a determination whether the project is a public work, as specified. The bill would also toll the period of time that a contractor or subcontractor fails to provide certified payroll records pursuant to a request from the Labor Commissioner, a joint labor-management committee, or an approved labor compliance program. The bill would require the person filing the notice of completion to also provide notice to the Labor Commissioner, as specified, and would require the awarding body or political subdivision accepting a public work to provide to the Labor Commissioner notice of that acceptance, as specified. The bill would toll the period for service of assessments and for commencing an action brought by a joint labor-management committee for the length of time notice is not provided to the Labor Commissioner. In addition, the bill would toll the period for commencing an action during the period of time in which a request to determine whether a project is a public work, including the period of a timely administrative appeal, is pending before the director.
SB 390 (amended June 25) would amend Labor Code section 227 to make it a crime for an employer to fail to remit withholdings from an employee’s wages that were made pursuant to state, local, or federal law; and would prescribe how recovered withholdings or court-imposed restitution, if any, are to be forwarded or paid.
SB 435 (amended August 22) would amend section 226.7 of the Labor Code to require employees of specified piece rate workers to pay those employees for any meal or rest breaks, or recovery periods, and set the rate of pay for rest and recovery periods for piece rate workers.
SB 516 (last amended September 4) would amend various sections of the Business and Professions Code to, among other things, add new registration and bonding requirements (some effective January 1, 2015) for certain foreign labor contractors, create joint and several liability between both foreign labor contractors and employers who use their services, impose and increase penalties for noncompliance, and authorize the Labor Commissioner to adopt regulations or policies and procedures to implement these provisions. The bill would exempt a person from joint and several liability for an act or omission by a foreign labor contractor if the person is using a registered foreign labor contractor’s services. The bill would also exempt a person who uses the services of a registered foreign labor contractor from misdemeanor liability for an act or omission by the foreign labor contractor.
SB 530 (last amended August 30) would amend section 432.7 of the Labor Code, and add section 4852.22 to the Penal Code, to exclude prior criminal convictions from consideration in employment decisions when the conviction has been judicially dismissed.
SB 655 (last amended September 6) would amend section 12965, and add section 12940.5, of the Government Code to provide that, in a claim of discrimination or retaliation under the FEHA, the person claiming to have been aggrieved shall prevail if he or she has proven that a protected characteristic or activity was a substantial motivating factor in the employment action or decision. If an employer pleads and proves that it would have made the same employment action or decision regardless of the protected characteristic or activity, the remedies available to the employee would be limited as specified. In addition, if an employer pleads and proves it would have made the same employment action or decision at the same time without considering the protected characteristic or activity, the bill would authorize injunctive relief and attorney’s and expert’s fees against the employer, and would require a specified civil penalty to be paid by that employer to the employee. The bill purports to codify the California Supreme Court's decision in Harris v. City of Santa Monica (2013) 56 Cal.4th 203, on consideration of an employer’s mixed motives in discrimination cases, and defines “substantial motivating factor.”
SB 770 (amended August 5) would amend section 3300, and amend, repeal, and add sections 2708, 3301, 3302, and 3303, to the Unemployment Insurance Code to, beginning July 1, 2014, expand 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. Sponsor: Legal Aid Society-Employment Law Center.
Bills Signed by the Governor Last Week
- AB 1384 adds Labor Code section 2676.55 to subject any person registered as a garment manufacturer who fails to display his or her name, address, and garment manufacturing registration number on the front entrance of his or her business, to a civil penalty.
Bills Not Making It Through The Legislative Process in 2013
- SB 404 would have added “familial status" to the FEHA as an additional protected status. The bill was cosponsored by the California Employment Lawyers Association, Center for Worklife Law, and Equal Rights Advocates. SB 404 did not make it to a final floor vote; it was held in the Assembly Appropriations Committee. Look for it again in the legislature’s 2014 session.
1 “Double jointing” refers to technical amendments necessary when two or more bills propose to amend the same code section (i.e., are in conflict).
Contact Chris Cobey, Special Counsel in Littler’s San Jose office (email@example.com) with any questions on these or other bills.