Storm's California Employment Law

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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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.

Sac Bee: No Further Business in State Senate

From the Sac Bee:

Perata, the Senate leader, has vowed that he will not take up any non-budget issues until a state spending plan is passed.

"No committees will meet, no bills will get through until we have a budget," spokeswoman Alicia Trost said.

2007 Employment Bills

AB 14 - The "Civil Rights Act of 2007"
AB 71 - Inflation indexing to minimum wage
AB 124 - Meal and rest periods for municipal lifeguards
AB 147 - "To assist and enact the ADA of 1990" (???)
AB 510 - Employee designed individual alternative workweeks
AB 948 - "To addresse the issue of overtime exemptions for highly compensated employees."
AB 1043 - Agreeing to choice of law other than California void.
AB 1425 - Changes to termination pay for temporary employees.
AB 1467 - Further restrictions on workplace smoking.
AB 1469 - Tweaks to alternative workweek voting
AB 1707 - Changes to record retention laws
AB 1708 - DFEH to create a program targeting age discrimination
SB 189 - Employment eligibility verification
SB 342 - Rest and meal periods for armored car drivers. (?)
SB 549 - Bereavement leave as a matter of right
SB 622 - "States the intent of the legislature to prohibit" misclassification of employees as independent contractors.
SB 737 - Intent of legislature to address rest and meal period issues. (?)
SB 836 - Adds "familial status" to protected classes in FEHA
SB 940 - Companion to AB 1425

This year, I'll be doing more in depth coverage of each bill as they progress.   Stay tuned.

Legislative Update

A split government has certainly slowed down the former torrent of employment bills.  Here's an update on the selected bills tracked by CEL:

AB 1912: Would have forbidden an employer from terminating an employee who brought a firearm to work in his car.  Status: apparently dead (second hearing in committee withdrawn by author).

AB 2095:  Limits sexual harassment training requirement to supervisors in California.  Status:  Has cleared committee in Assembly, but has been amended in the Senate.  It passed 78-0 on its third reading.  Differences will need to be worked out in conference, but it's on its way to passage.

AB 2186:  This bill formerly stiffened penalties to misclassifying workers as independent contractors.  It has been gutted to allow the EDD to seek $25,000 fines for misreporting employees (including as having independent contractor status).  Status: returned to committee in Assembly, the originating house.  Judiciary Committee has taken jurisdiction over this bill, but has not acted. 

AB 2217:  Individualized alternative work weeks. Status: rejected in committee.  Reconsideration has been granted, but this bill is probably dead at this point.

AB 2327:  Requires additional reporting on paystubs for farm labor contractors.  Status:  This bill passed the Assembly on its second attempt.  It made it out of committee in the Senate by a 3-2 margin.  A wide range of labor groups support this bill.  There is, however, no registered opposition.

AB 2334:   Would require janitorial service employers to register annually with the Labor Commissioner.  Status:  This bill's first Senate committee hearing has been cancelled at the request of the author, after passing through the Assembly on an apparently party-line vote.  Opposed by the California Chamber of Commerce.

AB 2371: Would invalidate arbitration clauses pertaining to FEHA violations.  Status: dead.  Failed passage in Assembly 38-39. 

AB 2388:  Status: amended to a non-employment-related bill.

AB 2536: 8/40 overtime would apply to personal attendants.  Status:  Needs a second reading in Senate, and then, assuming there are differences, third readings after conference.  This appears to be a hotly contested bill, with many groups lining up on each side.  This one will be worth watching.

SB 1188: Would require employers to issue checks that have a way of being turned into cash for free. (In other words, to undermine check cashing businesses.) Status: despite its passge in the Senate, this bill died in an Assembly committee, 1-5.  SB 1189, a similar bill, has been withdrawn by the author.

Gov's Minimum Wage Hike: Steeee-rike One

The Legislature voted to move both versions of Democratic plans to up the state minimum waage out of committee.  A competing proposal by the Governor was not moved out of committee.  The difference? The Governor's raise is a one time hike.  The Democratic version is tied to inflation.  The Governor has threatened to veto an inflation-linked version.

The Sacramento Bee has more.