More Headaches for California Employers

By: Ruth Evans of The Evans HR Group and Chamber of Commerce Board Member
Every year our legislators introduce hundreds of new laws. Fortunately, many are “killed” along the way, but all too many actually do pass and make it to the Governor’s desk for his signature. 2015 is no exception! It is important to know and understand these new regulations to protect you and your Company from costly penalties and possible lawsuits. Below is a summary of some of these new bills:

Mandatory Paid Sick Leave
California is now the second state in the nation to implement paid sick-leave state wide (Connecticut is the other). The Healthy Workplaces, Healthy Families Act of 2014 (“HWHF”), is effective January 1, 2015, but employees do not begin accruing benefits until July 1, 2015. The benefit will apply to eligible employees who on or after July 1, 2015, work in California for 30 days or more within a year.

With limited exceptions all public and private employers (regardless of size) in California must provide Paid Sick Leave to all employees (full time, part time, exempt, non-exempt, seasonal). Employees not covered are union employees covered by bargaining agreements with specific provisions, construction industry employees performing onsite work as described by Chapter 9 of Division 3 of the Business and Professions Code, publicly funded providers of in-home support services, and individuals employed by an air carrier as a flight deck or crew member. Employers who already have paid leave policies must make sure that their policies provide as a minimum, the accrual, minimum days, and carry over requirements in this law (AB 1522).

Under AB 1522, employees will accrue sick leave at the rate of 1 hour for each 30 hours worked, including straight time and overtime hours. The accrual begins on either the first day of work or July 1, 2015, when the law becomes effective, whichever is later. A full time employee (2080 hours) could accrue 8.66 days per year. Employers can choose to cap the employee’s total accrual amount at 48 hours/6 days and can limit the use of sick days each year to 24 hours/3 days. If the employer sets the cap at 48 hours/6 days, and the employee does not use any or all of his/her sick days, he may carry over 48 hours/6 days of paid sick leave to the next year and will not be able to accrue additional paid sick days until some of the “banked” time is used. An option is to provide employees with the minimum leave amount or lump sum (24 hours) at the beginning of each year. That will eliminate the carry over requirement and limit the paid sick days to a maximum of 3 each year. Paid sick leave cannot be used until the 90th day of employment but then can be used as it accrues. Employers can set a minimum increment of time (as long as it is reasonable) for sick pay usage, i.e. 2 hours.

Paid sick leave can be used for an existing health condition or preventive care for the employee or a family member (child, parent, spouse or registered domestic partner, grandparent, grandchild, sibling), or for an employee who is a victim of domestic violence, sexual assault or stalking. When an employee terminates, employers do not have to compensate the employee for unused paid sick leave. However, if the employee is rehired within one year of termination, his/her previously accrued paid sick leave must be reinstated.

The law does include notice, posting and recordkeeping requirements. As an example, the employer must provide accrual information on pay stubs or provide a separate written document each pay period. The Wage Theft Notice (which must be provided to hourly employees at time of hire) must contain language on this benefit. The Labor Commissioner is revising this form. You must display posters regarding the new law. Finally, you must keep records for at least 3 years of the number of hours employees worked, paid sick days accrued and used by the employee. There are penalties and fines for not providing sick days.

Discrimination, Harassment and Retaliation
Fair Employment and Housing Act (FEHA) has expanded the definition of a “National Origin” discrimination to include discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code (per AB 1660). In 2013, Governor Brown signed AB 60 into law. It requires the CA Department of Motor Vehicles to begin issuing driver’s licenses (driving privilege (DP) license) starting January 1 to undocumented persons who can show satisfactory proof of identity and California residency. It is against the law for any business to discriminate against an individual who holds or presents a DP license. The DP license indicates that the holder is allowed to drive, but it does not establish eligibility for employment, voter registration, or public benefits. This law also makes it a violation of FEHA for an employer to require a person to present a driver’s license, unless possessing a driver’s license is required by law; or required by the employer and the employer’s requirement is otherwise permitted by law. AB 1660 does not affect an employer’s rights or obligations under the federal INA.

Harassment Prevention Training – Abusive Conduct
Employers who are subject to AB1825 mandatory training (50 or more employees) for sexual harassment prevention for supervisors must now include the prevention of “abusive conduct.” Abusive conduct is specifically defined under the law as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” It may include: Repeated infliction of verbal abuse, such as the use of derogatory remarks, insults and epithets; verbal or physical conduct that a reasonable person would find threatening, intimidating or humiliating; or the gratuitous sabotage or undermining of a person’s work performance. A single act generally does not constitute abusive conduct unless it is severe and egregious. This law does not mean that an employee can sue for abusive conduct in the workplace unless of course the conduct becomes discrimination or harassment against a protected class.

Immigration-Related Protections
Labor Code section 1019 protects employees from “unfair immigration-related practices. AB2751 expands the definition of an unfair immigration-related practice to include threatening to file or filing a false report or complaint with any state or federal agency. It also revises the labor code to prohibit employers from discriminating, retaliating or taking any adverse action against an employee because the employee updates or attempts to update his/her personal information based on a lawful change of name, social security number or federal employment authorization document.

Wage and Hour
Per AB 1897, Employers who use temporary employees from a temporary staffing agency or who contract for labor through a labor contractor, are “client employers”. Before this law, temporary employees had the burden of proving that the businesses they were assigned to were “joint employers” with the staffing agencies. This law now defines a labor contractor as an individual or entity that supplies workers, either with or without a contract, to a client employer to perform labor within the client employer’s usual course of business. If the staffing agency or labor contractor (or other similar organization) does not pay its workers appropriately or fails to provide workers’ compensation for those employees, the “client employer” (you) can be held legally responsible and liable for those violations. AB 1897 enacts a new section of the Labor Code (2810.3) and specifically allows employers to obtain indemnification from the contractor for liability created by acts of the contractor; however, it does prohibit employers from shifting any of their health and safety responsibilities to the labor contractor.
Employee leasing arrangements that contractually obligate an employer to assume all responsibility and liability under the law are excluded from the definition of labor contractor.

“Client employer” does not include: a) a business entity with a workforce of less than 25 workers, including those hired directly by the client employer and those obtained from or provided by, any labor contractor; b) a business entity with 5 or fewer workers supplied by a labor contractor or labor contractors to the client employer at any given time; or c) the state or any political subdivision of the state of California. (An employee who is properly classified as exempt from overtime per the IWC Orders is not covered by this regulation.)

Rest and Recovery Periods
Employees are entitled to recovery periods under the Heat Illness regulations. Under Labor Code section 226.7, employers cannot require employees to work during that recovery period. Effective June 28, 2014, SB 1360 was passed and reiterates what is already in existing law in this area and was passed simply to clear up any confusions employers may have had.

Waiting Time Penalties
Failure to pay minimum wages is subject to a Labor Commissioner citation that includes a civil penalty, restitution and liquidated damages. Effective January 1, 2015, the law is amended by AB 1723 to include any applicable penalties for an employer’s willful failure to timely pay wages to a resigned or discharged employee. These are not new penalties. Rather, it is a way for the Labor Commissioner to enforce existing penalties.

Minimum Pay for Exempt Computer Professionals
The minimum pay for exempt computer professionals increases to $41.27 per hour ($7,165.12 per month; $85,981.40 per year.) Make sure you have your computer professionals classified correctly. The first test in determining whether they are exempt is the salary test.

Background Checks
AB 1650 requires contractors who bid on state contracts involving on-site construction-related services to certify that they will not ask applicants for on-site construction-related jobs to disclose information concerning criminal history at the time of an initial application.

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