2015 California Employment Law Watch
12.3.14
There are several changes in store for California employers in 2015 including providing paid sick leave for its employees, the requirement to include training for “abusive conduct” and an expanded definition of whom is protected from discrimination and harassment. Unless specified, all of the changes discussed below go into effect on January 1, 2015. You should feel free to contact Sarah Evans, Ross Schwartz or Dick Semerdjian if you have any questions regarding these new laws or any employment related matter.
PAID SICK LEAVE
The newly enacted Healthy Workplaces, Healthy Families Act of 2014 requires California employers to pay an employee at the employee’s regular rate of pay for up to three days of sick leave per year, effective July 1, 2015. Unlike several other California leave laws, there is no exemption for small employers. The new law applies to employees (exempt and non-exempt) who work in California 30 days or more in a year. This includes temporary, part-time, and seasonal employees, and out-of-state employees who work in California 30 or more days in a calendar year. Paid sick days accrue at a rate of no less than one hour for every 30 hours worked which equates to approximately 5.3 hours per month for employees who work 40 hours per week. An employee is entitled to use accrued sick days beginning on the 90th day of employment. Employers are prohibited from discriminating or retaliating against an employee who requests paid sick days and must satisfy specified posting, notice and recordkeeping requirements.
The Act provides employers with three different methods of compliance. Employers can choose an “Accrual Method” that requires an employee earn one hour of paid sick leave for every 30 hours worked. Under this option, employers will have to track the hours of each employee to determine when the employee has accrued one hour of sick leave. The Employer can choose a “Front Loading Policy” which provides the employee with at least three days or 24 hours of paid sick leave, paid leave or paid time off at the beginning of the year. Under this policy, the employee simply receives the paid time off on the first day of the year and the employer does not have to track each employee’s hours. Employers can also choose an “Employer Policy” that provides an employee with at least three days or 24 hours of paid sick time in a 12-month period, year of employment or calendar year. This method is similar to the “Front Loading Policy” but allows the employer to dictate when the employee receives the paid sick leave as opposed to simply the first day of the calendar year. Whichever method you select, your employer policy should be updated to reflect how the employee earns the mandatory paid sick leave.
ABUSIVE CONDUCT TRAINING
The hot button issue of anti-bullying makes an appearance in the new 2015 laws. Employers who are required to provide sexual harassment training must now include training on prevention of “abusive conduct” as a part of that process. As a reminder, all employers with more than 50 employees are required to provide at least two hours of sexual harassment training for supervisors located in California.
The Bill (AB 2053) defines abusive conduct 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.” Abusive conduct “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.” Further, “a single act shall not constitute abusive conduct, unless especially severe and egregious.” Although the Bill includes a definition of abusive conduct, the legislature has not approved, yet, a cause of action arising from such abusive conduct. However, the type of conduct described above almost certainly will give rise to a hostile work environment claim and employers should be mindful of properly training its supervisors accordingly.
EXPANDED DEFINITION OF WHOM IS PROTECTED FROM HARASSMENT AND DISCRIMINATION
California has expanded the definition of whom is protected from harassment and discrimination by including unpaid interns and volunteers. This is a departure from several other jurisdictions that have concluded that such persons are not employees for purposes of harassment and discrimination laws. Consistent with California’s statutory scheme, this new law prohibits discrimination against interns and volunteers on the basis of any legally protected classification (e.g., race, religion, disability, etc.) and to prohibit sexual harassment of them, and to extend the existing religious belief accommodation requirements to them.
Additionally, on the discrimination front, it is now a violation of the Fair Employment & Housing Act (FEHA) to discriminate against an individual because he/she holds a driver’s license indicating the worker is undocumented (Bill AB 1660). Last year California authorized the Department of Motor Vehicles to issue a special driver’s license to an undocumented person. This new law prohibits businesses from discriminating against such individuals who hold or present such driver’s licenses. This new law also prohibits an employer from requiring a person to present a driver’s license, unless possessing a driver’s license is required by the employer and the employer’s requirement is otherwise permitted by law.
AB 1660 does not affect an employer’s right or obligation to obtain information required under federal law to determine identity and authorization to work. However, it does provide that driver’s license information obtained by an employer shall be treated as private and confidential; and exempt from disclosure under the California Public Records Act; and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.
OTHER LAWS THAT MAY APPLY TO YOUR BUSINESS
Per Assembly Bill 326, an employer must immediately report (phone or email) to the Division of Occupational Safety and Health a severe injury, illness or death. Other injuries must be reported within 5 days if they result in lost time beyond the date of injury or illness or require medical treatment that is more than just first aid. A penalty of $5,000 is imposed for the failure to timely make such report.
Per Assembly Bill 1897, employers are now jointly liable with labor contractors for violations of wage laws. This new bill requires a “client employer” to share liability with a labor contractor for the payment of wages, the failure to obtain valid workers’ compensation coverage and all legal duties or liabilities under workplace safety provisions with respect to workers provided by the labor contractor. These new requirements do not apply to employers who have fewer than 25 employees or who hire fewer than 5 employees from the labor contractor.
Assembly Bill 2617 limits an employers’ use of arbitration agreements with employees. Employers often require new hires to sign agreements that they will use arbitration rather than litigation or filing complaints with government agencies in the event of an employment dispute. This bill prohibits employers from requiring employees to waive certain legal rights and agree to arbitrate instead, and also prohibits businesses from refusing to contract with individuals who refused to waive such legal rights.