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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Among the many California Peculiarities that employers must face are special rules on personnel record keeping. In 2012 the Legislature, in enacting AB 2674, made those rules yet more complicated and onerous. Until December 31, 2012, employer obligations to make employee performance records or grievances available were drawn out in the seven subdivisions of Labor Code section 1198.5(a)-(g). Effective January 1, 2013, the statute’s subdivisions now number seventeen, reflecting nine key changes:

One: 

Before, the law gave “employees” the right to inspect records.
Now, former employees and their representatives (i.e., attorneys) are expressly afforded these right.

Two:

Before, employees only had a right to inspect records.
Now, it is a right to inspect and copy.

Three:

Before, there was no specific format or procedure to request records.
Now, employees may make requests orally (to inspect) or in writing (to receive copies), and employers may create a request form that employees can choose to use.

Four:

Before, employers had to make records available at undefined “reasonable intervals.”
Now, former employees can make one request for records per year, representatives 50 requests per month, and current employees – still unclear.
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