California Employment Legislation Affecting Credit Checks, Meal & Rest Periods, and Leaves of Absence Await Governor’s Consideration

The following employment-related legislation met the August 31, 2010 deadline for passage by the California Legislature. Among the legislation are bills limiting the use of credit checks, allowing exemptions from meal and rest periods for certain employees covered by collective bargaining agreements, requiring paid bereavement leave, and extending paid marrow and organ donation leave to certain private employers. Governor Schwarzenegger has until September 30, 2010 to sign, veto, or let the bills become law without his signature.

AB 482 (Mendoza) Consumer Credit Reports - This bill would prohibit employers, with the exception of certain financial institutions, from obtaining a consumer credit report for employment purposes unless the information is (1) substantially job-related, meaning that the position of the person for whom the report is sought has access to trade secrets, money, other assets, or confidential information, and (2) the position of the person for whom the report is sought is a position in the state Department of Justice, a managerial position, that of a sworn peace officer or other law enforcement position, or a position for which the information contained in the report is required to be disclosed by law or to be obtained by the employer.

AB 569 (Emmerson) Meal & Rest Periods - This bill would exempt from meal and rest period provisions, employees in construction, commercial drivers, employees of local publicly owned electric utilities, and security officers if such employees are covered by a valid Collective Bargaining Agreement (“CBA”) containing specified terms, including meal period provisions.

AB 1881 (Monning) Liquidated Damages in Wage Claims - This bill would, in cases of minimum wage violations, increase the amount of liquidated damages that may be awarded to an employee to twice the amount of wages unlawfully unpaid, plus interest.

AB 2187 (Arambula) Failure to Pay Final Wages Additional Penalty - This bill would create a new separate prohibition against a person, who, having the ability to pay, willfully fails to pay all wages due to an employee who has been discharged or quit within 90 days. The bill would impose a fine of between $1,000 and $10,000, up to six months jail time, or both, for such conduct. The violating individual would also be required to pay restitution to the aggrieved employee upon conviction.

AB 2340 (Monning) Bereavement Leave - This bill would allow for three days unpaid leave for bereavement purposes upon the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or domestic partner’s child, within 13 months of the death of the bereaved individual. The provisions of the bill would not apply to an employee who is covered by a valid CBA that provides for bereavement leave and other specified working conditions.

AB 2468 (De Leon) Lactation Breaks - This bill would authorize an employer to use the designation "Mother-Friendly Worksite" in its promotional materials, if it submits its workplace breast-feeding policy to the Labor Commissioner and the Labor Commissioner determines that the employer's policy provides for specified criteria.

AB 2770 (Monning) Labor Code Enforcement - This bill would, until January 1, 2017, establish a pilot program to investigate employment and payment practices within the swimming pool and spa construction industry. The Employment Development Department (“EDD”), in conjunction with other agencies and industry representatives, would be required to establish criteria that would trigger a recommendation for an audit or investigation state authorities.

SB 903 (Wright) Statute of Limitations - This bill would extend the period within which the Division of Labor Standards Enforcement (“DLSE”) may commence a collection action, as defined, from one year to 3 years.

SB 1304 (DeSaulnier) Marrow Donation Leave - This bill would require employers with 15 or more employees to permit employees to take paid leaves of absence for organ donation (up to 30 days) and bone marrow donation (up to five days), and to restore an employee returning from such leave to the same or equivalent position. The bill would also prohibit an employer from interfering with, or retaliating against, an employee taking such leave, or opposing an unlawful employment practice related to such leave. The bill would also create a private right of action for aggrieved employees to seek enforcement of these provisions. Covered employers would be able to require an employee take up to five days of earned but unused sick or vacation leave for bone marrow donation, and up to two weeks of earned but unused sick or vacation leave for organ donation as a condition of receiving such leave.

SB 1370 (Ducheny) Commission Agreements - Effective January 1, 2012, this bill would require all employers entering into commission agreements with employees to enter into written agreements or face liability in a civil action to the employee for treble damages.

SB 1474 (Steinberg) Agricultural Employee Labor Representatives - This bill would authorize the Agricultural Labor Relations Board, under specified circumstances, to set aside an election where there has been misconduct by the employer affecting the outcome of the election and to certify a labor organization as the exclusive bargaining representative for a bargaining unit if the organization had previously presented the board with authorization cards signed by more than 50% of the employees in that bargaining unit.

Please check back regularly for updates on these bills.

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