Storm's California Employment Law

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Employment Issues Took a Back Seat This Session.

Various papers state-wide (Sac Bee, San Jose Mercury News, San Diego Union-Tribune, OC Register) have given their postmortems on this Legislative session. None of them mention any of the many employment-related bills, and probably for good reason. With the budget impasse and the prospect of a special session to cover hot-button issues like health care and water resources, compounded with a divided government unlikely to enact many controversial bills touching on employment, this is not an unlikely result.

Nevertheless, I think it’s worth keeping an eye on some of the subtle changes to the usual suspects that would be in store for 2008 or 2009 (depending on when they get signed, if they get signed), and I’ve tried to do that here. Also, there are some interesting trend indicators, especially involving independent contractors.

Of course, any employer-based state-mandated health care system will put everything else on the back burner for now. Until we know the contours of a plan that can pass, I’ll keep focusing on these issues.

I am in the process of gathering comments from the various interests groups, bill sponsors, and the governor’s office regarding some of these bills. Stay tuned.

 

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AB 14 Passes [Don't forget to update your bookmarks]

T o the Gov. More to come.
 

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SB 622 To Governor [Don't Forget To Change Your Bookmarks]

The Senate concurred in the Assembly amendments this morning by a vote of 22-15. 

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SB 836 To Governor

SB 836, adding "familial status" as a protected class under the Unruh Act and the FEHA.  Familial status is defined as:

one or more individuals under 18 years of age who reside with a parent, another person with care and legal custody of that individual, a person who has been given care and custody of that individual by a state or local governmental agency that is responsible for the welfare of children, or the designee of that parent or other person with legal custody of any individual under 18 years of age by written consent of the parent or designated custodian.

I'll try and find out what this bill's chances are.

SB 622 Amended To Drop Private Right of Action.

SB 622, which I felt would have been the one potentially paradigm-shifting piece of employment law legislation this session, has been significantly amended.  The new version of the bill drops the private right of action for independent contractor misclassification.

A spokesperson for the bill's sponsor, Senator Padilla (D-San Fernando), told CLEL this afternoon that the amendment was made in "an attempt to work with the opposition," for whom the private right of action was a huge concern.  Senator Padilla's office was hopeful that, with these amendments, the bill would make it through the Legislature, but felt that it was still "highly unlikely" that the Governor would sign the bill, even as amended.

The bill had passed the Senate 23-15 prior to the recent amendments.

Last year, a similar bill, A.B. 2186 (Torrico) , was introduced stating only that it would be "the intent of the Legislature to prohibit deliberate misclassification of employees as independent contractors and to"penalize intentional misclassification."  No specifics or enforcement mechanisms were ever set out.

That bill died in committee after the author gutted it.  This year, a bill on this topic appears to be headed to the Governor's desk.  Take note of this trend, and consider accordingly when dealing with issues of independent contractor classification.   

Two More Employment Bills On Their Way To Governor

A.B. 1043, which would make void any choice of law provision in an employment-related dispute other than California void.  It would also make a non-California forum clause void.  This bill is, at least in part, a reaction to Olinick v. BMG Entertainment (2006) 138. Cal.App.4th 1286, which permitted a New York choice of law clause in an employment contract.

S.B. 549 adds to the right to inquire about, request, and take time off for bereavement leave.

Both of these bills apparently received party-line votes, and did receive support from labor, and opposition from the California Chamber of Commerce and other industry groups.

I will seek comment from the Governor's office after they are formally sent to him.

AB 1707 Goes to the Governor

Passes Senate 21-17, passed Assembly 47-31.

Read the Senate analysis here, and the bill as enrolled, here.

I put the odds of a veto at about 80%.

This bill would require employers to maintain employment records for a specified time and to provide inspection and copies within a specified time to current and former employees or their representatives. The bill would authorize those employees to recover a $750 penalty from an employer for failure to do so and to bring an action to obtain compliance, and it would provide that a violation of its provisions constitutes an infraction.

Legislature's Final Push

Every time I read a court opinion about the complexities of "legislative intent" I smile. The Legislature is to vote on 800 bills in the next two weeks.  From the OC Register:

SACRAMENTO – The Legislature heard 183 bills on Tuesday, with 650 more to go before the end of this year's legislative calendar. Here's a look at some highlights from Tuesday.

Nothing too exciting to report on any of the big employment bills yet.

The LA Times on Gentry

The LA Times appears to be the only major California paper to cover Gentry. (Unless I missed it somewhere else--please send links.)

"For many workers, class-action lawsuits are the only type of lawsuits they can bring against their employer" because attorneys are reluctant to take on individual suits in which the potential awards are small, said Michael Rubin, a San Francisco lawyer who represented a former Circuit City worker in the case that went to the state Supreme Court.

Man, the Labor Commissioner just gets no love.  Not from the Supreme Court, not from the Plaintiff's lawyer.  Couldn't be because you don't necessarily get an attorneys' fee award there, could it? I'm also not sure why an epidemic of plaintiff's attorneys failing to take cases is the responsibility of employers (there is no such epidemic in the first place).  In other systems, like the UK, small dollar litigation is much more swift and efficient, and solicitor's fees can be publicly funded.  Maybe something like that is worth a look-see.

Although the Gentry decision binds only California employers, it will probably undermine arbitration waivers nationally. California law tends to set the standard in labor cases, Regan said. "National companies really desire consistency in their human resources policy, so they set the bar at California," she said.

But I thought employers were fleeing the world's 8th largest economy because of our bad laws? I'm confused. Of course, if you had been my client, you never would have played stunt-man with these highly dubious devices, and, therefore never been disappointed.  But I don't earn $1,000/hr. and have offices on Wilshire, so what do I know. (Yes, I am jealous. (; )

The writing has been on the wall regarding the California Supreme Court's and Legislature's feelings about arbitration (Discover) and class actions (Sav-On), as distinct subjects, for a while. But, I guess someone has to be on the bleeding edge.

P.S. Is my journey to the "dark side" complete?