CalChamber-Opposed Employment Law Bills Await Action by Governor

Sep 21 2017 - General - HRWatchdog

October 15 is the last day for the Governor to act.

October 15 is the last day for the Governor to act.

Quite a few employment-related bills have passed the Legislature. Five bills that could significantly affect California employers are on the Governor’s desk awaiting review and action. Two of the bills are particularly damaging to businesses, and CalChamber has identified them as Job Killers.

SB 63 (Jackson) — JOB KILLER

If signed into law, SB 63 would require employers to provide 12 weeks of baby bonding leave to employees in addition to the myriad of other leaves of absence programs California already imposes. This bill targets small employers with as few as 20 employees and applies to those employees who:

  • Worked more than 12 months;
  • Worked at least 1,250 hours of service during the prior 12-month period; and
  • Work at a worksite where there is at least 20 employees within a 75 mile radius.

Combined with other protected leaves, the bill could result in small employers having to provide up to seven months of protected leave for the same employee.

In addition, the bill carries the threat of litigation for employers. SB 63 labels an employer’s failure to provide a requested leave as an “unlawful employment practice.” The employer is subject to a lawsuit should the employee allege that his or her employer:

  • Did not provide the 12 weeks of protected leave;
  • Failed to return the employee to the same or comparable position;
  • Failed to maintain benefits while the employee was out on leave; or
  • Took any adverse employment action against the employee for taking the leave.

AB 1209 (Gonzalez Fletcher) — JOB KILLER

This bill would require employers with 500 or more employees in California to collect data on the salaries paid to men and women in the same job title or classification and submit the information to the Secretary of State’s office. The state would then post the company’s salary information — with the company name attached — on a publicly accessible website.

Not only would this increase costs on the state for development and maintenance of an entirely new program, it would be plenty costly to employers who must take time away from business operations to collect and submit the information to ensure that they are complying with yet another state regulation.

The bill ignores the numerous, lawful, bona fide factors on why a particular wage disparity might exist. It also compromises the privacy of employees who may not want their salary information disclosed. Additionally, the bill will provide a website that a plaintiff’s attorney could use to file new lawsuits against California employers, exposing them to costly and meritless litigation.

AB 168 (Eggman)

Another CalChamber-opposed bill dealing with employee salary information has made it to the Governor’s desk.  AB 168 bans employers from inquiring about a job applicant’s salary history. Employers could be penalized for failing to provide a pay scale upon demand, even though the applicant has not suffered any harm or wage loss due to a violation.

This issue raised in this legislation was addressed last year in a proposal the business community agreed to that prohibits an employer from solely basing an employee’s compensation on prior salary. Less than a year later, advocates for this proposal are asking the Governor to demand that employers be denied the opportunity to have access to salary information for legitimate uses including adjusting unreasonable salary expectations or matching the current market rate for a position.

Having this information available benefits both the employee and the employer. AB 168 further carries a huge threat of costly litigation under the Labor Code Private Attorneys General Act (PAGA).

AB 569 (Gonzalez Fletcher)

AB 569 would prohibit an employer from taking an adverse action against an employee, an employee’s dependent or an employee’s family member based on the employee’s, dependent’s or family member’s use of any drug, device or medical service related to reproductive health.

Existing law already adequately protects an employee and their family member’s medical choices, as well as unlawful discrimination in the workplace. This bill does not quantify what behavior constitutes “conduct” that would be prohibited. AB 569 subjects employers to the investigative and procedural requirements of two separate state agencies, creating confusion and adding unnecessary burdens on employers seeking to comply.

SB 306 (Hertzberg)

SB 306 proposes to allow an employee or the Labor Commissioner to obtain a temporary restraining order prohibiting an employer from terminating an employee based on an allegation of retaliation before completing an investigation. Currently, the Labor Commissioner has the authority to seek any appropriate relief, including injunctive relief, only after it has investigated a claim of retaliation and made a determination that a violation exists. This bill also reduces the burden of proof for the employee making a claim and expands the Labor Commissioner’s authority to investigate an employer for retaliation, even without a complaint from an employee.

Other Employment-Related Legislation Awaiting the Governor’s Action

A number of other bills that will affect employers have reached the Governor’s desk.  They include:

AB 450 (Chiu)

This bill establishes the Immigrant Worker Protection Act that shields workers from immigration enforcement while on the job. Under this bill, an employer is prohibited from providing any federal immigration enforcement agent access to a business without a properly executed warrant. The employer is also prohibited from providing the agent voluntary access to the employee’s records without a subpoena. The bill also requires employers to notify all current employees of a Form I-9, Employment Eligibility Verification inspection performed by federal immigration enforcement officials, as well as provide notice of the results of the inspection to each affected employee and authorized representative. Finally, violation of the provisions of the bill carries stiff fines ranging from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation. 

AB 570 (Gonzalez-Fletcher)

This bill would require California employers to pay injured workers permanent disability indemnity benefits for disabilities, for which there is no medical certainty were caused by a workplace injury or illness. This bill would expand the purpose of California’s workers’ compensation system — already the most expensive in the United States.  Governor Brown vetoed a similar bill in 2016.

AB 978 (Limon)

Under this bill, an employee can request a copy of an employer’s Illness and Injury Prevention Program (IIPP). An employer who receives a written request for a paper or electronic copy of the IIPP must comply with the request within 10 business days from receipt. The bill would create a substantial burden for employers due to the potential for unlimited requests from an unlimited number of representatives and an unlimited number of employees.

AB 1008 (McCarty)

This bill would make it an unlawful employment practice under the Fair Employment and Housing Act for any employer with five or more employees to include on any application for employment any question that seeks to determine an applicant’s conviction history, or to inquire or consider the conviction history of an applicant, until an applicant has received a conditional offer of employment.  Should an applicant be denied a position based on the applicant’s conviction history, the employer would be required to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job justifying denying an applicant a position.

SB 295 (Monning)

The bill requires that farm labor contractors provide sexual harassment prevention training in the language understood by the worker. The contractor would be required to provide very specific documentation related to this training prior to renewal of a farm labor contractor license. Additionally, the bill authorizes the Labor Commissioner to issue citations and assess civil penalties of $100 for each violation. 

SB 396 (Lara)

Imposes additional requirements to the currently mandated supervisor sexual harassment prevention training for companies with 50 or more employees to include information related to harassment based on gender identity, gender expression and sexual orientation. Additionally, the bill requires employers to post a poster, developed by the Department of Fair Employment and Housing, on transgender rights.

Staff Contact: Erika Frank

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