Public Law E-Alert: The New Year Equals New Laws: Are You Up To Date?

The California Legislature was very busy last year and several new laws went into effect on January 1, 2014 which have direct impact on employers. To ensure that your agency is up to date on all the new laws, here is a summary of the major pieces of legislation that may impact your organization.

FEHA Expansion

• SB 292 clarifies that sexual harassment does not need to be motivated by sexual desire to be actionable.
• The legally protected traits under FEHA were expanded by AB 556 to include “military or veteran” status.

Expansion of Paid Family Leave

• SB 770 expands the state’s Paid Family Leave program to provide up to six weeks of wage replacement for employees taking leave to care for seriously ill grandparents, grandchildren, siblings, or parents-in-law.

Expansion of Leave Rights under the California Labor Code

• SB 400 amends the Labor Code to expand the protections afforded to victims of domestic violence and sexual assault to also include victims of stalking. Labor Code sections 230 and 230.1 now also require employers to engage in a good faith interactive process to accommodate employees who are victims of domestic violence, sexual assault or stalking. Reasonable accommodations may include transfer, reassignment, changed telephone number or the installation of a lock as safety measures.

• Additional amendments to Labor Code section 230 expand the categories of activities for which employees may take time off for court proceedings. Formerly, Labor Code section 230 required employers to allow employees to take time off to attend court proceedings related to domestic violence, sexual assault and other narrowly defined crimes against them or an immediate family member. SB 288 amends the Labor Code to include protections for employees who take time off to attend court proceedings related to the following crimes:

• Vehicular manslaughter while intoxicated;
• Felony child abuse likely to produce great bodily harm or a death;
• Assault resulting in the death of a child under eight years of age;
• 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

• AB 11 amends Labor Code section 230.4 to provide job-protection for additional categories of personnel who take leave to participate in training. These additional categories are: volunteer firefighters, reserve peace officers or emergency rescue personnel. For employers with 50 or more employees, these categories of employees are permitted take up to fourteen days of leave for training per calendar year. Previously, Labor Code section 230.4 only provided job-protection for firefighters who took leave for training.

MMBA Provides Reasonable Time Off for Appearing Before PERB or Merit Commissions

• AB 1181 amends the Meyers-Milias-Brown Act to provide reasonable time off to employee representatives without loss of compensation when they are testifying or appearing as the designated representative before PERB or a personnel or merit commission. Employee representatives are required to provide the employer with reasonable notification of their request for a leave of absence.

Inquiry Into Criminal Convictions

• SB 530 amends Labor Code section 432.7 to allow employers to inquire about or use information related to criminal convictions (or entry into pre-trial diversion programs) if: (1) the employer is required to obtain such information as required by law; (2) the applicant would be required to posses or use a firearm during employment; (3) the position does not permit an individual convicted of such crime to hold the position; or (4) the employer is legally prohibited from hiring an applicant that has been convicted of a crime.

• AB 218, also passed last year, is the public sector analog of SB 530. Amending the same section of the Labor Code, AB 218 generally prohibits state or local agencies from inquiring about a criminal conviction until after it is determined whether the applicant meets the minimum qualifications for the position. The state or local agency is then permitted to conduct a criminal history background investigation. The local agency is not required to wait for a minimum qualifications determination to be made if (1) the local agency is required to conduct a criminal background check for the position; (2) the position is within a criminal justice agency; or (3) if the position is one that contracts with a criminal justice agency.

Expanded Protections for Whistleblowers and Immigrants

• AB 263 and SB 666 expand protections for whistleblowers. Labor Code section 98.6 prohibits employers from discharging or discriminating against employees or applicants for enforcing their rights. The newly enacted laws expand protection to cover “a written or oral complaint by an employee that he or she is owed unpaid wages.” Additionally, the Labor Code previously provided protection for employees disclosing certain violations to outside agencies. The amendment also protects employees from disclosing certain violations internally to those in positions of authority or have the authority to instigate an investigation.

• AB 263 and SB 666 also prohibit employers from retaliating based on an employee’s citizenship or immigration status. Labor Code sections 1019 and 1019.1 now preclude “unfair immigration-related practices” which are defined as (1) requesting more or different work eligibility documents; (2) abusing the E-verify system; (3) threatening to contact immigration authorities; or (4) threatening to file or filing a false police report. It is now also impermissible to threaten to report the suspected citizenship or immigration status of an employee, former employee or applicant because they have exercised a right under the Labor Code, Government Code or Civil Code.

Amendment to the Public Safety Officers Procedural Bill of Rights

• SB 313 prohibits a public agency from taking punitive action against a public safety solely because the officer’s name is on a “Brady” list. Employers are still permitted to take punitive action against an officer based on the underlying conduct that led to an officer’s placement on a Brady list.

For more information, please contact Nikki Hall (415) 678-3813, nhall@publiclawgroup.com or Genevieve Ng (415) 678-3830 gng@publiclawgroup.com.