EdLawConnect Blog

The Governor and Legislature kept busy in 2013 enacting new or amended laws that affect employment in California. Most of the new laws provide additional protections for employees. Public and private employers alike should take note of the changes for 2014:

Criminal Background Checks

Assembly Bill 218 applies to government agencies, not private employers. Starting July 1, 2014, it prohibits state and local agencies from asking applicants for information about their criminal convictions until the employer has determined the applicant meets the minimum requirements for the position. Inquiries into criminal history cannot be made by these employers at the initial job application stage. However, positions required by law to have a criminal background check conducted are exempt from this requirement. All school district positions are positions “for which a state or local agency is otherwise required by law to conduct a conviction history background check,” per Education Code sections 44830.1 and 45125. Therefore, unless the law is broadened further, school districts should continue to conduct criminal background checks for all applicants.

Wage and Hour Provisions

Assembly Bill 10 raises the minimum wage to $9.00 per hour on July 1, 2014, and to $10.00 per hour on January 1, 2016. Because exempt employees’ pay must be no less than two times the minimum wage, exempt employees whose salaries are less than two times the new minimum wage may need a salary adjustment to continue to qualify for the overtime exemption.

Senate Bill 435 imposes penalties for failure to provide “cooldown periods.” The law applies to employers who are subject to Cal-OSHA’s heat-related illness standards and prohibits covered employers from denying employees “recovery periods” that are required by law or regulation. The same penalties that apply to missed meal and rest periods will apply to missed recovery periods. The requirement does not apply to employees who are otherwise exempt from the meal and rest period requirement. Since those requirements do not apply to public employees in California, the cooldown-recovery periods likewise do not apply to employees of public agencies, such as school districts.

Leave Provisions

Assembly Bill 11 requires employers with more than 50 employees to grant up to 14 days of unpaid leave per year to employees who are volunteer firefighters, reserve peace officers, or emergency rescue personnel, to attend fire, law enforcement, or emergency rescue training. “Emergency rescue personnel” are officers, employees, or members of a government fire department, sheriff’s department, police department, or private fire department. The new law applies to volunteer as well as paid emergency personnel.

Assembly Bill 1181 requires public agencies to give employees who are representatives of public employee organizations reasonable time off, with pay, to testify or appear on behalf of a union in conferences, hearings, or other proceedings before the Public Employee Relations Board, relating to a charge between the union and the public agency, or before a personnel or merit commission.

Senate Bill 400 provides certain protections to victims of stalking or domestic violence. The law prohibits terminating employees because they are victims of domestic violence, sexual assault, or stalking, and adds a reasonable accommodation requirement if the employee notifies the employer of the need. Employers with 25 or more employees must provide time off, with reasonable advance notice from the employee where feasible, to seek medical treatment for injuries related to the domestic violence, to consult a rape crisis center or domestic violence program, or to participate in safety planning. All employers must provide time off for the employee to attend legal proceedings related to the domestic violence.

Senate Bill 288 prohibits employers from discriminating or retaliating against employees who are victims of specified crimes if they take time off from work to participate in legal proceedings related to the crime. The employee must provide advance notice of the need for time off where feasible. The crimes include vehicular manslaughter while intoxicated, felony child abuse likely to produce great bodily harm or death, assault resulting in the death of a child under eight years of age, felony domestic violence, felony physical abuse of an elder or dependent adult, felony stalking, solicitation for murder, hit-and-run causing death or injury, felony driving under the influence causing injury, sexual assault, and other specified serious felonies.

Discrimination/Harassment/Retaliation Changes

Assembly Bill 556 amends the Fair Employment and Housing Act (Government Code § 12920 et seq.) to add “military or veteran status” as a class protected from discrimination in employment. The protected status includes “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.” Employers may inquire regarding an applicant’s or employee’s military or veteran status for the purpose of awarding a veteran’s preference as permitted by law.

Senate Bill 292 amends the Fair Employment and Housing Act to clarify that sexual harassment claims do not require a showing of sexual desire. The legislation, effective January 1, 2014, is a response to Kelley v. Conco Companies, a 2011 case where the court dismissed an employee’s same-sex sexual harassment claim because, among other issues, there was no evidence the harassment was “motivated by sexual desire.”

Senate Bill 496 expands state whistleblower protections to employees who report to a governmental agency a reasonable belief that the employer is violating local ordinances, not just state or federal law. The new law also expands protections to supervisors or other employees who could investigate or correct the purported violations. Employers should make sure to investigate all “whistleblower” complaints promptly and make sure supervisors know the proper channels for reporting such complaints.

Assembly Bill 263 prohibits retaliation against employees for participating in Labor Commissioner hearings, political activity, lawful conduct outside of work, and whistleblowing. The law broadens the existing prohibition on discrimination and termination to cover retaliation or other “adverse employment actions.” The new law also extends these protections to employees who file written or oral complaints that they are owed wages and creates a civil penalty of $10,000 per employee, per violation.

Assembly Bill 263 also prohibits retaliation in the form of “unfair immigration-related practices” against suspected undocumented workers who exercise any rights under the California Labor Code or local employment ordinances. The prohibited practices include refusing to honor acceptable documents, or requiring documents different from what the law requires, when completing I-9 employment verification checks; using the E-Verify system in a way not explicitly authorized by federal law to check workers’ immigration status; threatening to file or filing a false police report; and threatening to contact immigration authorities. It does not apply to immigration checks expressly authorized by federal law, such as I-9 checks. However, employers are now explicitly barred from reporting, or threatening to report, an employee’s suspected status as an undocumented worker to immigration authorities after that employee exercises employment-related rights.

Assembly Bill 60 granted undocumented individuals in California the right to obtain driver’s licenses. These licenses will state on their face they are not acceptable identification for I-9 verifications or other purposes under federal law.