Labor and Employment Bills Part I

Below is Part I of our Annual Update of new bills that are likely to impact California public agencies with regard to labor and employment issues. Most of these laws will take effect on January 1, 2017.  We will follow up with Part II in a few days.

For more information on any of the newly-passed bills, or recommendations on how to prepare for these changes, please feel free to contact any of our attorneys listed below.

ABX2-7 significantly expands the prohibition on smoking in the workplace by including owner-operated businesses and reducing the workplaces that qualify for exemptions. Existing law did not cover employers with five or fewer employees. ABX2-7 expands the prohibition to cover all employers, including owner-operated businesses with no employees that permit nonemployees regular access to their workplace. The only remaining exemption for owner-operated businesses are businesses with no employees that do not permit regular access to nonemployees, including contractors and clients.

ABX2-7 also eliminates a number of the workplaces that had qualified for an exemption under previous law, including hotel lobbies, bars and taverns, banquet rooms, warehouse facilities, and employee break rooms. Under the new law, the enumerated workplaces that still qualify for an exemption include twenty percent of the guestrooms in hotels and motels, tobacco shops, cabs of motortrucks unoccupied by nonsmokers, certain theatrical production sites, limited medical research or treatment sites, certain private residences operated as businesses, and patient smoking areas in long-term health care facilities.

A violation of the prohibitions set forth in ABX2-7 is punishable by a fine not to exceed one hundred dollars ($100) for a first violation, two hundred dollars ($200) for a second violation, and five hundred dollars ($500) for a third and for each subsequent violation.

AB 488 amends the Fair Employment and Housing Act to bring individuals who work in a nonprofit sheltered workshop or rehabilitation facility within the definition of “employee.” AB 488 authorizes an individual employed under a special license in such a workplace to bring an action for any form of harassment or discrimination, including unlawful discharge or refusal to be hired or selected for a training program. However, the bill does exempt an employer from the bill’s provisions prohibiting discrimination based on disability. Furthermore, the bill provides employers with an affirmative defense that the challenged action was permitted by statute or regulation and was necessary to serve employees with disabilities.

AB 488 charges the Department of Fair Employment and Housing with investigating and determining whether or not to bring a civil action on behalf of the complainant.

AB 908 by Assemblymember Jimmy Gomez (D-Los Angeles)

California’s Paid Family Leave law allows an employee to request paid leave to care for a family member with a “serious health condition” or to bond with a new child. Under the existing law, an employee receives 55 percent of his or her salary, up to a maximum of $1,129 per week, for a period of up to 6 weeks.

AB 908 increases the weekly benefit amounts to employees who go out on paid family leave starting on January 1, 2018. The amount of the increase in benefits will be determined by the employee’s income. An employee earning below about $20,000 per year will now receive 70 percent of his or her usual salary. A higher income worker will receive 60 percent of his or her usual salary, with a maximum benefit of approximately $1,260 per week. AB 908 also eliminates the 7-day waiting period, so increased benefits will be payable immediately.

AB 1311 by Assemblymember Jim Cooper (D-Elk Grove)

Existing law generally requires that employers pay temporary services employees on a weekly basis. AB 1311 would make the weekly pay requirement applicable to security guards employed by a private patrol operator that acts as a temporary services employer.

AB 1661 by Assemblymember Kevin McCarty (D-Sacramento)

AB 1611 requires that, in addition to ethics training, local officials who receive compensation for their services must also receive sexual harassment prevention training and education. The bill also allows local agencies to require that all employees, not just supervisory ones, receive sexual harassment prevention training. Entities that develop sexual harassment curricula must consult with the city attorney or county counsel regarding the sufficiency and accuracy of the content.

AB 1676 by Assemblymember Nora Campos (D-San Jose)

Existing law prohibits employers from paying employees at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work on jobs requiring equal skill, effort, and responsibility. However, exceptions to that prohibition allow for differences in wage rates that are based on “bona fide” factors other than sex, including education, training, experience, and salary history.

AB 1676 amends the “California Fair Pay Act” (SB 358) which was enacted last year to prohibit employers from paying women less than men for doing similar work. AB 1676 amends the existing law to restrict the “bona fide” factor exception, specifying that prior salary cannot, by itself, justify disparate compensation. AB 1676 does not prohibit the employer from asking about salary history as an earlier version of the bill did and as did the 2015 version of the bill before being vetoed by Governor Brown.

AB 1732 is a progressive statewide restroom access policy that requires single-occupancy restrooms in California businesses, government buildings, and places of public accommodation to be identified as all-gender toilet facilities and be accessible to all genders starting March 1, 2017. AB 1732 prohibits businesses, government buildings, and places of public accommodation from labeling any “single-user toilet facility” as either “male” or “female” and therefore compliance will require changing signage to indicate the all-gender nature of the facilities. The bill authorizes inspectors, building officials, or other local officials responsible for code enforcement to inspect for compliance with these provisions during any inspection. Similar ordinances are already in place in Berkeley, Cathedral City, and West Hollywood.

AB 1843 creates additional limits on an employer’s ability to ask applicants about their criminal histories. Existing law prohibits an employer from using or asking an applicant for information concerning (1) an arrest or detention that did not result in a conviction, (2) a referral or participation in a pretrial of post trial diversion program, or (3) a conviction that was dismissed or sealed, with some exceptions. AB 1843 would prohibit an employer from using or asking an applicant to provide information related to specified criminal processes – such as arrests, detentions, and court orders – while he or she was subject to juvenile court law. The bill also prohibits an employer at a health facility from inquiring into specific events that occurred while the applicant was subject to juvenile court law or from seeking juvenile offense history that was sealed, with some exceptions.

AB 1953 replaces the term “citizen” to “civilian” throughout the Government Code, Penal Code, and Vehicle Code. The purpose of this change is to be consistent with the actual terms used by law enforcement agencies, and to clarify that all civilians are eligible to file complaints related to law enforcement personnel and practices, regardless of their citizenship.