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.
With the dust still settling from last month's unprecedented presidential election, California’s politicians have not stood still. In partisan terms, the election results in California could not be more different from that of the rest of the United States. Hillary Clinton received the votes of 62% of California’s voters; President-elect Donald Trump received 32%, with a 4.3 million-vote margin for Clinton in the Golden State. The most recently reported national percentages were 48% for Clinton, 46% for Trump, with a 2.6 million vote margin for Clinton.
The Democrats in California have controlled the Legislature continuously for over 20 years. The party picked up seats in both houses of the state legislature (Senate and Assembly), giving them two-thirds majorities in each house, as they enjoyed in the 2013-2014 legislative session. With supermajorities, Democrats could pass taxes without Republican support and override a veto by Democratic Governor Jerry Brown.1
The major difference from four years ago is that both houses’ leaders exhorted legislators on December 5 (the official opening day of the 2017-2018 biennial session2), to remain vigilant and ready to respond immediately to any perceived developing policy threats from the incoming administration of President-elect Trump, especially on the subjects of immigration and environmental protection. The Democrats’ supermajorities will enable them to pass bills with urgency designations (if all Democrats vote in favor as a bloc), meaning that a statute designated as an urgency measure, and passed by a two-thirds vote, would take effect when Governor Brown signs the bill – not the following January 1, as with most other legislation.
California voters passed Proposition 54 in the November election, which prohibits the Legislature from passing any bill unless the bill has been published online for 72 hours before the vote.3 This constitutional amendment should allow more careful consideration of many last-minute proposals. On the other hand, the Assembly’s operating rules adopted December 54 have created some ambiguity as to which versions of bills passed by either house under this new requirement will apply.5
Of significance to California private sector employers, a bill was introduced on December 5 that would add to the state Labor Code provisions mimicking the City of San José's Measure E—the "Opportunity To Work" ordinance.6 Assembly Bill (AB) 5 would:
… require an employer with 10 or more employees to offer additional hours of work to an existing nonexempt employee before hiring an additional employee or subcontractor, except as specified, would require an employer to post a notice of employee rights, as specified, and would require the employer to maintain certain documentation. The bill would authorize an employee to file a complaint for violation of these provisions with the division and to, in the alternative, bring a civil action for remedies under the act. The bill would require the division to enforce these provisions, as specified and would authorize the division to, among other things, adopt rules and regulations. The bill would make a violation of these provisions punishable by a civil penalty.7
The ambiguities already existing in San José’s Measure E, which AB 5 largely copies, will be the subject of extensive analysis and review in the legislative process if AB 5 gains traction.
In addition to AB 5, employers can expect to see bills on these topics in the upcoming legislative session:
- Predictive (or “fair”) scheduling.8
- Expansion of the California Family Leave Act's scope of coverage to include new parents.
- Prohibition of mandatory pre-dispute arbitration agreements as a condition of hiring or continued employment.
- Limitations on employers' ability to require disclosure of an applicant's previous salary history.
- The effect of the use of recreational marijuana in the workplace.
- Requiring double pay for hourly workers required to work on Thanksgiving or the day after Thanksgiving (“Double Pay on the Holiday”).
- Expansion of employee training requirements.9
- Requiring employers with state contracts to compile and submit an annual report on summary data of compensation paid to employees, sorted by gender and race.
- Expansion of penalties and lowering of the employee threshold that would trigger the imposition of various violations of the Labor Code.
The Governor, the New Attorney General, and the Legislature
Governor Brown is in the final two years of his final term of his final administration. He has not yet announced any major new policy initiatives, although his public concern about global warming remains undiminished. The Governor may be concerned in the next two years with his legacy, as the longest-serving governor in the state’s history.
California's newly appointed Attorney General, Congressmember Xavier Becerra (also a Democrat, who takes the place of U.S. Senator-elect Kamala Harris pending state Senate and Assembly confirmation), vowed immediately after his nomination on December 1 that he would resist any pressure from the incoming Trump administration to roll back protections enacted by California for workers and employees on the basis of their immigration status.
1 However, the last veto overridden by the Legislature occurred in Governor Brown’s second term (1979-1983).
2 The Legislature had its formal first day of session on Monday, December 5. It is now in recess until Wednesday, January 4, 2017.
3 Constitution, Art. IV, Sec. 8(b)(2).
4 Assembly House Resolution (HR) 1 (http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml?bill_id=201720180HR1). The new Assembly rules allow each member to introduce up to 50 measures in the regular session, up from the maximum number of 40 in the previous session. HR 1, Rule 49(a).
5 HR 1, Rules 46(c), 76(a), 77(a).
6 Richard A. Leasia and Cooper Spinelli, An Early Holiday Boost to Low-Wage Silicon Valley Workers?: San José Passes ‘Opportunity to Work’ Ordinance and Accelerates The City’s Minimum Wage Increase, Littler Insight (Dec. 8, 2016).
7 AB 5; Legislative Counsel’s Digest (http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB5).
8 One of the authors of San Francisco’s 2014 ordinance on this subject (David Chiu) is currently a member of the Assembly and introduced such a bill in the last session of the Legislature. See Michael Brewer, Christopher Cobey, and Jason Shapiro, San Francisco Ordinance Imposes New Burdens on 'Formula' Retail Employers, Littler Insight (Dec. 9, 2014).
9 See Kevin O’Neill, Marissa, Dragoo, and Christopher E. Cobey, The Continuing Expansion of Sexual Harassment Training Requirements in California, Littler Insight (Nov. 11, 2016).