In November, Democrats won a supermajority in the California Legislature (55 seats in the Assembly and 27 in the Senate). Democrats now have the votes to pass measures requiring a two-thirds majority vote, without any help from that pesky other political party. Even more, they then need only to pass the bill to Democrat Governor Jerry Brown for his seal of approval. Will the Dems use this newfound power to make California even more peculiar on the labor and employment front? Will Brown rubber stamp what the Dems put on his desk, or continue his reputation of marching to his own drummer?
It’s still quite early in the 2013-14 Legislative Session – a time when many of the bills introduced are merely “spot” holders for later substantive amendments. Nonetheless, while it is still too early to make any concrete predictions, we can make some educated guesses about what will emerge on the labor and employment front this year:
Prediction #1: More Protected Statuses
The unemployed: Governor Brown vetoed legislation last year that would have made unemployed a protected status under FEHA, stating that “[t]his measure seeks to prevent discrimination against the unemployed based on their job status by prohibiting employers from stating in employment ads that applicants must be employed. Unfortunately, as this measure went through the legislative process it was changed in a way that could lead to unnecessary confusion.” The bill’s author has left the Legislature. If a new bill now goes through the process without such “confusion,” that bill may meet the Governor’s approval. If so, it would not be the first. Oregon recently enacted similar protections, as did the District of Columbia and New Jersey. There was also a similar bill pending on the federal level that died in Committee.
The homeless: Assembly Member Ammiano has introduced AB-5, dubbed the “Homeless Person’s Bill of Rights and Fairness Act” that would prohibit discrimination under the Unruh Act and Fair Employment and Housing Act on the basis of “housing status,” defined as “the status of having or not having a fixed or regular residence, including the status of living on the streets, in a vehicle, or in a homeless shelter, or similar temporary residence or elsewhere in the public domain.” The bill is currently before the Assembly Committee on the Judiciary.
Potential consequences of either of the above becoming law? Employers will face additional challenges in ensuring that recruiters, human resources personnel, interviewers, and management employees are trained to be aware, navigate, and comply with these requirements.
Prediction #2: More Recordkeeping and Inspection Obligations
The Legislature appears intent on continuing its focus on employer recordkeeping; specifically employer obligations on payroll records. Assembly Member Alejo has introduced AB-155, which would amend Labor Code 226 to make clear that it is the employee’s choice to either inspect, copy, or receive copies of the employee’s payroll records. This bill attempts to overrule the Riverside County Superior Court’s ruling in Esteban v. JSO, Inc. dba America’s Labor Supply, Inc., which held that an employer need not make copies. As such, if this bill passes, an employer would have to provide copies of payroll records upon reasonable request.
Prediction #3: More Attempts At ALRA Reform
The Legislature has its sights targeted on the Agricultural Labor Relations Act and Board. Senator Steinberg introduced legislation that would allow the Board’s decision to be implemented, even where a party seeks review in court. The bill would also make it more difficult for a court to stay the Board’s decision during the appeal process. One might think that Governor Brown would support attempts to strengthen employee rights in the ALRA, in that he signed the ALRA into law during his first stint as Governor in the 1970s. Yet, while he approved SB 126 in 2011, to make some procedural changes to the ALRB, he vetoed SB 104, noting he was not convinced that the far reaching proposals of the bill — many of which he thought would have altered the principles of the ALRA — were justified.
Prediction #4: More Leave of Absence Bills
Legislation regarding leaves of absence stays on the Supermajority’s radar. Assembly Member Logue has already introduced a bill that would require employers to provide leaves of absence of up to 14 days per year for volunteer firefighters, reserve peace officers, or emergency rescue personnel. It remains to be seen, however, whether Governor Brown would sign such a bill, if passed. Over the past couple years, while he has approved some new leave of absence protections, the Governor has been hesitant to sign bills that would, in his words, create another private right of action when there has been no showing of a need for the additional protection the amendments would have provided.
Prediction #5: Social Media Stays Hot
On the first day of the session, Assembly Member Campos introduced legislation to expand last year’s social media legislation to public employers. The 2012 bills prohibited an employer or postsecondary educational institution from requiring or requesting an employee or applicant for employment to: (1) disclose a user name or account password to access a personal social media account, (2) access personal social media in the employer’s presence, or (3) divulge any personal social media.
Workplace Solutions: Employers should keep a close eye on the Supermajority this year. Absent writing or lobbying the Legislature concerning proposed legislation on your own, employers should consider joining a group that advocates for businesses. This blog will continue to report on legislative developments as they occur and provide practical Workplace Solutions.
Up Next: Our next post in this blog series will address the amendments to the FEHA on religious dress and grooming practices. We will be honored to have, as guest author, Alan J. Reinach, Executive Director of the Church State Council, an educational and advocacy organization promoting religious liberty. You will not want to miss his remarks.