(Photo) CA LegBy Kristina Launey, Christina Jackson, Brad Doucette

Thursday, June 5 marked the last day for bills to pass out of their house of origin in the California Legislature. Here is a summary of some key employment bills that made it through (followed by some significant bills that did not), and how they may affect California businesses if they make it all the way to the Governor’s approval with their current language.

Leaves of Absence

Paid Sick Leave. AB 304. We’re all watching Assembly Member Lorena Gonzalez’s attempt to clean-up some of the language in her Healthy Workplaces, Healthy Families Act of 2014, which took effect January 1, 2015, but which largely becomes operative July 1, 2015. On June 2, the Assembly approved inclusion of an urgency clause, which would allow the bill’s provisions to take effect immediately upon the Governor’s signing the bill; and exempts the bill from the house of origin deadline (the Assembly did not vote on it last week).

But, will the bill receive the Senate and Governor’s approval prior to July 1? It would have to move quickly, as would employers in adapting to these new provisions. Some key provisions in the current version of the bill are: (i) changing the rate of pay from a 90-day look-back to the regular rate, (ii) relieving employers of a duty to inquire or record the reason for an employee taking paid sick leave, (iii) allowing employers with unlimited time-off policies to comply with the written accrual notice by stating “unlimited” on the employee’s pay stub, and (iv) delaying until 2016 the written notice requirement for employers subject to Wage Orders 11 and 12. Look for an in-depth analysis on this bill here in coming days.

Meanwhile, Gonzalez’s AB 11, which would have included in-home support services under the definition of “employees” under the Healthy Workplaces, Healthy Families Act, did not make it out of the Assembly.

Kin Care. SB 579 seeks to amend California’s Kin Care law to tie its protections to the use of sick leave for the reasons specified in the Healthy Workplaces, Healthy Families Act of 2014. The bill also would expand coverage of California’s school activities leave (Family School Partnership Act) to include day care facilities and cover child care provider emergencies, and the finding, enrolling, or reenrolling of a child in a school or day care, and would extend protections to an employee who is a step-parent or foster parent or who stands in loco parentis to a child.

CFRA Leave. SB 406 would narrow the California Family Rights Act (“CFRA”) small business exemption. CFRA would now apply to businesses that employ 25—as opposed to the current 50 –within 75 miles. CFRA’s protections would also now extend to care for grandparents, all children (removing any age restriction), and grandchildren, as well as siblings, domestic partners, and in-laws.

Anti-Retaliation
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By: Kristina Launey and Daniel Kim

As noted previously in this space, California already permits employees to take many kinds of protected time off not generally available in other parts of the country.  In 2013, California’s Legislature presented workers with even more kinds of legally-protected absences.  It is hard to begrudge leaves of absence

We all know that agency regulations can be informative guidance but, by their nature, extremely detailed and—let’s face it—dry as toast.  The new disability regulations, which went into effect on December 30, 2012, are no exception.  

The regulations seek to “clarify” statutory definitions and employers’ obligations to an employee with an actual or perceived disability.  However, these “clarifications” expand employers burdens under California law.

Expanded Definition Of “Disability” Including: 

  •     post-traumatic stress disorder
  •     autism spectrum
  •     palsy
  •     heart disease
  •     multiple sclerosis
  •     seizure disorder
  •     clinical depression
  •     obsessive compulsive disorder
  •     schizophrenia
  •     bipolar disorder 

Before the regulationsWhether these conditions met the definition of “disability” under California law was subject to debate, as many other conditions. 

After the regulations:  Not much to debate.  The new regulations specifically say that the analysis as to whether a condition is a disability should not be extensive, regardless if it is a condition explicitly recognized by regulations as such. 

Expanded Definition of “Major Life Activities”:  The definition of “major life activities” now includes sleeping, thinking, and interacting with others (which implies that social disorders will now also be considered disabilities).

How To Determine When Functions Are Essential?  The regulations provide additional guidance as to when a job function is essential.  Updated and accurate job descriptions are crucial and are now actually required by the regulations.  Performance evaluations will also assist in determining whether a function is essential.   

The Growing List Of Reasonable Accommodations:  Similar to the new pregnancy disability regulations that we discussed here and here, the disability regulations include a broader list of reasonable accommodations.  


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Continuing in this series on new California regs, this post calls out three additional areas where the pregnancy disability regulations have changed as of January 1, 2013.  Last time, we talked about expanded definitions, time periods for leave, and required notices.  This time, we are talking reinstatement, interplay with other leaves and reasonable accommodation.  For

After almost two years of public comment and editing, the California Office of Administrative Law finally settled on a crop of regulations that substantially alter the way Pregnancy Disability Leaves (PDL) are administered in California.  The regulations (effective December 30, 2012) have created additional burdens for employers that many may find onerous:    

Expanded Definition

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. 
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