Labor & Employment Law Client Alert - November 2018

2018 California Employment Law Updates

The 2018 California legislative session was another busy year with numerous employment-related bill signed into law. Notably, the legislature enacted many statutes to combat sexual harassment in both the public and private sectors. California employers should take note of these new laws to ensure that their policies and procedures are in compliance. Below is a summary of the important new laws affecting employers and employment litigation. All laws are effective January 1, 2019, unless otherwise noted.

1. WAGE AND HOUR

   Labor-Related Liabilities: Direct Contractor

   AB 1565 amends Section 218.7 of the Labor Code and provides that for contracts entered into after January 1, 2019, a direct contractor or subcontractor must include a contract provision that lists the documents or information that a lower tiered subcontractor must produce before either the direct contractor or subcontractor may withhold disputed payments. This bill repeals the provision that provides obligations and remedies in addition to existing legal obligations and remedies, except for imposing liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions including interest. As an urgency statute, this bill would take effect immediately.

   Private Attorneys General Act of 2004: Construction Industry

   AB 1654 amends the Private Attorneys General Act of 2004, Section 2699.6 of the Labor Code by carving out an exception for employees in the construction industry who performed under a collective bargaining agreement that is both in effect any time before January 1, 2025 and includes certain provisions on a grievance and binding arbitration procedure. This bill authorizes the exception until the agreement expires or until January 1, 2028, whichever is earlier. The provisions of this bill will be repealed on January 1, 2028.

   School and Community College Employees: Parental Leave

   AB 2012 amends Sections 449977.5, 45196.1, 87780.1, and 88196.1 of the Education Code by requiring a person employed in a position that requires certification qualifications, a person employed in an academic position, and a classified employee of a school or community college district who takes a parental leave during the designated 12 workweek period to receive at least 50% of their regular salary for the remaining period, regardless of the type of differential pay system.

   Classified Employees: School and Community College Districts: Part-Time Playground Positions

   AB 2160 amends Sections 45256, 880033, and 88076 of the Education Code by including employees in part-time playground positions in the definition of "classified employee" and thus authorizing a school district or community college to adopt a merit system that prescribes how to employ, pay, and control a classified employee's services. For a school district or community college district that has adopted the merit system, AB 2160 deems an employee in a part-time playground position as a permanent employee district without placing the employee on an eligibility list or examination.

   Salary History Information

   While the Labor Code prohibits an employer from relying on an applicant's salary history to determine whether to offer employment or what salary to offer, an employer must, upon reasonable request, provide the applicant with the pay scale for the position the applicant is applying for. AB 2282 amends the Code and defines the terms "pay scale," "reasonable request," and "applicant" and allows an employer to ask the applicant about expected salary.

   Furthermore, this bill authorizes an employer to decide an employee's compensation based on the employee's current salary as long as one or more factors, i.e. a seniority system or a merit system, justifies any difference in wage resulting from the employer's compensation decision.

   Rest Breaks: Petroleum Facilities: Safety-Sensitive Positions

   AB 2605 adds and repeals Section 226.75 of the Labor Code by providing that, until January 2021, employees who hold a safety-sensitive position at a petroleum facility are exempt from the rest and recovery period requirements under existing law. If an employee misses this period, the employer must compensate the employee for one hour of the employee's normal pay rate. As an urgency statute, this bill would take effect immediately.

   Employees: Meal Periods for Commercial Drivers

   AB 2610 amends Section 512 of the Labor Code and addresses meal periods for commercial drivers that are employed by a motor carrier transporting nutrients and byproducts from a licensed commercial feed manufacturer to a customer located in a rural location. This bill authorizes commercial drivers to start their meal period after their sixth hour of working if their pay rate is at least one and a half times the state's minimum wage, and the driver receives overtime compensation according to existing law.

   Employment: Public Works: Apprenticeship

   AB 3231 amends Sections 1771.2 of the Labor Code. Under Section 1771.2, a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 is authorized to bring an action against any employer who fails to pay prevailing wages as required by state law. This bill expands that authority, allowing a joint labor-management committee to also bring an action against an employer who fails to provide payroll records as required by Section 1776. That failure arises when the employer fails to provide the name, address, social security number, work classification, straight time, and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her.

   Arbitration: Agreements: Enforcement

   AB 3247 amends Section 1281.2 of the Code of Civil Procedure, relating to arbitration. Under that Section, a court, on petition of a party to an arbitration agreement alleging (1) the existence of a written agreement to arbitrate a controversy and (2) that a party to the agreement refuses to arbitrate the controversy, must order the petitioner and the respondent to arbitrate the controversy if the court determines that an agreement to arbitrate exists, unless the court makes other determinations, including, among other things, that grounds exist for the revocation of the agreement. This bill changes that determination to specify instead that grounds exist for rescission of the agreement. It further makes additional, non-substantive changes to the language of the Section.

   Wages: Records: Inspection and Copying

   California Labor Code Section 226 requires employers to keep itemized wage statements containing various categories of information. SB 1252 amends the text of Labor Code Section 226 to provide that employees have the right to receive a copy of these statements. The bill itself does not constitute a change in existing law but is intended to serve as a declaration of existing law. Under existing law, current and former employees have the right to inspect or copy records pertaining to their employment, upon reasonable request. Failure to respond to these requests and provide the employee with their records within a specified time results in a penalty of $750, to be recovered by the employee or the Labor Commissioner.

2. EMPLOYMENT DISCRIMINATION, HARASSMENT, RETALIATION

   Legislature: Legislative Employee Whistleblower Protection Act

   AB 403 adds Article 11 to the Government Code and extends whistleblower protection to a Member of the Legislature, or a legislative employee, against interfering with, or retaliating against a legislative employee exercising the right to make a protected disclosure, i.e. a violation of law or legislative standard of conduct, by imposing criminal and civil liability.

   Additionally, this bill imposes civil liability on an entity that interferes with or retaliates against a legislative employee who makes a protected disclosure. As an urgency statute, this bill would take effect immediately.

   Legislative Ethics: Education: Lobbying

   AB 2055 amends Section 8956 of the Government Code by requiring the legislative ethics committees of each house of the Legislature to conduct at least a semi-annual orientation course on each of their policies against harassment, including sexual harassment, relating to lobbying activities.

   Talent Agencies: Education and Training

   AB 2338 amends the Labor Code and requires talent agencies to give educational materials on preventing sexual harassment, retaliation, along with reporting resources, nutrition, and eating disorders to artists. The materials must be in a language the artist understands. In applying for renewal to the Labor Commissioner, the talent agency must prove compliance.

   This bill additionally requires a minor in the entertainment industry and the minor's parent or guardian to complete training on topics such as sexual harassment prevention, retaliation, and reporting resources. Moreover, this bill requires a talent agency to request and retain a copy of the minor's entertainment work permit before representing or sending a minor artist to an audition, meeting, or interview to engage the minor's services. A talent agency's failure to comply subjects it to civil penalties of $100 for each violation.

   Apprenticeships: Discrimination: Prohibition

   AB 2358 adds Section 3073.9 to the Labor Code and expressly prohibits discrimination in building and construction trades apprenticeship programs on the basis of race, sex, religious creed, or national origin in terms of acceptance or participation in those programs.

   This bill additionally requires an apprenticeship program to designate one or more individuals to oversee and maintain compliance, implement procedures consistent with this bill, include an equal opportunity pledge in its apprenticeship standards, and overall compliance with this bill within a specific period of time.

   This bill authorizes the...