The Governor’s Busy Pen

Governor Brown has been busy signing new bills into law. These new laws are:

AB 1443 (Skinner):Unpaid interns are protected under Harassment and Discrimination Laws

• AB 2053 (Gonzalez):  Mandatory Supervisor Training on Harassment and Discrimination  must now include education on work place bullying.
•  AB 1522 (Gonzalez):  Healthy Workplaces, Health Families Act of 2014 provides 3 paid sick days for all California employees working more than 30 days in a calendar year.

These laws will take effect January 1, 2015, except for a portion of AB 1522 which will be effective July 1, 2015. As discussed in greater detail below, these new laws are designed to expand employee rights and protections.

AB 1443

Under California’s existing Fair Employment and Housing Act (FEHA), employers are prohibited from discriminating against employees and independent contractors based on a protected trait. AB 1443 expands the categories of protection to include unpaid interns, volunteers, apprentices and others who are employed for a limited duration to receive unpaid work experience.  AB 1443 amends Government Code section 12940 to make it unlawful for an employer refuse to “select the person for a training program leading to employment, or bar or to discharge a person from employment or from a training program leading to employment or to discriminate against the person in compensation or in terms, conditions or privileges of employment.” (Gov. Code section 12940(a).) While existing law prohibited employers from discriminatorily selecting participants for an apprenticeship training program, the new law expands protection from discrimination to other aspects of employment including termination. This new law also precludes an employer from harassing unpaid interns and volunteers, and extends religious belief discrimination protection and accommodation to apprentices, unpaid interns and/or volunteers. (Gov. Code section 12940(l)(1).)

AB 1443 appears to overturn Estrada v. City of Los Angeles where the 2d District Court of Appeal affirmed a judgment for the City of Los Angeles holding that volunteer officers were not “employees” for purposes of FEHA. (218 Cal.App.4th 143 (2013).) In Estrada, volunteer officers were covered by workers compensation insurance, but did not otherwise receive any remuneration for their services. The Court looked to various definitions of “employee” and City’s policies on volunteers. The City deemed volunteers as “employees” for workers compensation only and for no other purpose. The Court was persuaded by this and held that the plaintiff was appointed to a volunteer position and not to a position in the classified civil service and, therefore, could not sustain an action against the City for disability discrimination under FEHA. Under AB 1443, however, volunteer officers would be treated as “employees” for purposes of FEHA’s protections.

AB 2053

Employers are already required to provide at least two hours of training and education to supervisory employees once every two years on preventing sexual harassment in the workplace. Employers are defined as those who employ 50 or more employees. AB 2053 will require that training to include education on “abusive conduct” or workplace bullying. Abusive conduct is defined as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive and unrelated to the employer’s legitimate business interests.” (Gov. Code section 12950.1(g)(2).) Abusive conduct may include verbal abuse such as derogatory remarks, epithets or insults and physical conduct that a reasonable person would find “threatening, intimidating, or humiliating.” (Id.) Abusive conduct may also include “gratuitous sabotage or undermining of a person’s work performance.” (Id.) “A single act shall not constitute abusive conduct, unless especially severe and egregious.” (Id.)

AB 2053 seeks to address the perceived growing epidemic of workplace bullying through prevention. Rather than write a law of civility into the Government Code, AB 2053 seeks to educate supervisory employees to recognize abusive conduct and stop it in its tracks. AB 2053 is not meant to place additional burdens on the employer, but rather expands the topics covered during already mandatory training.

AB 1522

With the Governor’s signature, California becomes the second state in the nation to require paid sick leave. Effective July 1, 2015, AB 1522 or the Healthy Workplaces, Healthy Families Act of 2014 requires employers to provide at least three (3) days of paid sick leave per year to employees. This law applies to nearly every public sector employer and to virtually every employee, including part-time, seasonal and temporary employees,[1] in California. This new sick leave benefit does not apply to employees who are covered by a valid collective bargaining agreement if the agreement covers wages, hours and other terms of employment including paid sick leave or paid time off and final and binding arbitration of disputes. The basic mechanics of AB 1522 are:

•  Employees are eligible for this benefit if they work 30 or more days in a calendar year. Employees accrue sick leave at the rate of one (1) hour per every 30 hours worked.

• Employees may begin using this sick leave, which can also be used to attend to sick family members as defined in the law, after the 90^th day of employment. Sick family members include spouses, registered domestic partners, grandparents, grandchildren or siblings.

• Paid sick leave days carry over from year to year, but employers may limit use to three (3) days per year and limit accrual to six (6) paid sick leave days. Employers are not required to “cash out” any accrued but unused sick leave days.

• Employees must provide reasonable advanced notice of use. Employees are allowed to use paid sick leave in two (2) hour increments.

• Employers are also required to provide notice to employees of their available sick leave time either in itemized wage statements or in a separate statement on paydays.

• Employers are required to display a poster in a conspicuous location in the work place containing information about the Healthy Workplaces, Healthy Families Act of 2014.  Failure to display this poster may result in fines.

• Employers are also required to keep records for at least three (3) years documenting hours worked, sick leave days accrued and used by employees. Again, failure to keep such records may result in fines.

• Employers are further required to provide employees, at the time of hire, a written notice of the terms and conditions of their employment including the employers’ sick leave policy and contact information for the employer and the employers’ workers compensation carrier.

If employers have sick leave or paid leave policies that are more generous than the Healthy Workplaces, Healthy Families Act of 2014, employers are allowed to keep their own policies in place. Of note, the state’s new sick leave law would most likely apply if employers have valid collective bargaining agreements with employee groups that contain sick leave or paid leave provisions, but do not provide for these disputes to be adjudicated via final and binding arbitration. However, agencies with represented employees are very likely to offer sick or paid leave benefits that are more generous than this new law.

Comments & Recommendations

We recommend that employers revise discrimination and harassment policies to include coverage for volunteers, interns and/or apprentices. Many of your policies should already include language that indicates misconduct that falls short of legally actionable harassment may still be subject to discipline. If not, your policy should be revised.

Additionally, if you cannot remember the last time your supervisory employees received AB 1825 Preventing Harassment Training, we recommend that you contact us (or your training provider) to schedule a training that now includes a section on abusive conduct.

It is more likely that your agency’s sick leave benefits are more generous than what is required by the Healthy Workplaces, Healthy Families Act of 2014. However, there are key areas where that may not be the case. For example, California’s Kin Care law requires employers to allow employees to use up to half of their annually accrued sick leave to care for a spouse, registered domestic partner, child or parent. It does not include grandparents or siblings. It is advisable to review your agency’s sick leave provisions to ensure that they are in line with this new law, Kin Care and other applicable sick leave ordinances.

AB 1522’s effective date is a touch unclear. Employees begin accruing paid sick leave hours effective July 1, 2015, but the other provisions of the Healthy Workplaces, Healthy Families Act of 2014 – notably the poster requirement, notice provisions to newly hired employees and itemized wage statements – are most likely effective January 1, 2015. We advise that employers move quickly to implement those changes in time for the New Year.

Check out Tim Yeung’s blogpost about Health Workplaces, Healthy Families Act of 2014 at http://www.caperb.com/2014/09/10/governor-signs-paid-sick-leave-law/

[1] AB 1522 does not apply to employees in the construction industry covered by a valid collective bargaining agreement, providers of in-home supportive services under Welfare and Institutions Code sections 14132.95 et seq. and employees of an air carrier as flight deck or cabin crew subject to the federal Railway Labor Act (45 U.S.C § 181 et. seq.).