The Good, The Bad, And The Ugly: A Quick Primer On Proposed California Employment Legislation In 2017

With the February 17 deadline to introduce bills in the California Legislature having come and gone, now is a good opportunity to take stock of what the coming year portends for labor and employment legislation in California. In short, the message for California employers is: "hang on - it's going to be an interesting ride."

As a preliminary matter, it is interesting to note that the Legislature introduced 2,495 bills before the deadline, which represents an increase of approximately 200 bills over the average for the first year of a two-year legislative session. As can be expected in California, a fair number of these bills relate to labor and employment matters.

The vast majority of these proposals would impose new requirements or restrictions on California employers, although a few would propose relief for the employer community in areas like regulatory reform, increased flexibility, and efforts to rein in abuse under the Labor Code Private Attorneys General Act of 2004 (PAGA).

Common Themes For 2017

Many of the bills introduced this year revisit issues and proposals that will not be new to those who have monitored legislative activity over the last several years. These include measures to address gender pay inequity, expand employer obligations to provide family and medical leave, and "ban-the-box" efforts to restrict employer use of criminal history information. Several proposals attempt to regulate portions of the "gig" or "innovation" economy, as policymakers and stakeholders continue to struggle to determine whether and how to regulate new industries and business models.

But because this is California, there are always new proposals to keep employers on their toes. For example, Assembly Bill 5 would enact a statewide "Opportunity to Work Act" that would require employers to offer additional hours to part-time workers before they could hire or obtain new employees. Another proposal (Assembly Bill 569) would prohibit employers from discriminating against employees due to "reproductive health" decisions. Yet another proposal (Assembly Bill 199) would appear to make most residential construction projects subject to state prevailing wage law. Finally, a different measure (Senate Bill 744) ominously declares the intent of the Legislature to enact an undefined "employee right to privacy" in the California Labor Code.

California v. Trump

In addition to the issues raised above, California employers need to be cognizant of the larger political debate occurring at the federal level - in particular the tension between the Trump administration with the Republican-led Congress on the one side, and an increasingly blue California on the other. While the Trump administration may make a number of changes seen as positive by the employer community, employers here need to remember that this is still California. Employers should anticipate a California legislative and regulatory response to virtually every action taken by the Trump administration or Congress that impacts labor and employment. For every executive order rescinded or policy change made at the federal level, California employers should anticipate a Newtonian "equal and opposite reaction" here in our state.

Summary of Key Labor and Employment Proposals

With that in mind, strap on your seatbelts and get ready for this preview of some of the more significant measures related to labor and employment law that will be moving through the Legislature this year:

AB 5 (Gonzalez Fletcher) - "Opportunity to Work Act" - Based on similar proposals adopted recently in San Francisco and San Jose, this bill requires employers with 10 or more employees in the state to offer additional hours of work to part-time employees before hiring an additional employee or subcontractor (even through a staffing agency or similar entity).

AB 46 (Cooper) - Gender Pay Inequality - Provides that the California Equal Pay Act applies to both public and private employers.

AB 168 (Eggman) - Salary History Information - Prohibits an employer from seeking salary history information about an applicant for employment. This bill also requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant for employment. Previous legislative efforts in this regard have not been successful.

AB 199 (Chu) - Public Works: Residential Projects - Defines "public works" for prevailing wage law purposes to include private residential projects built on private property that are built pursuant to an agreement with the state or a political subdivision. This would have major implications for the California building industry and this is an important bill to watch.

AB 206 (Gonzalez Fletcher) - Workers' Compensation - Day Laborers - Provides that workers' compensation provisions of existing law apply to day laborers and individuals regardless of immigration status.

AB 238 (Steinorth) - Medical Cannabis: Distributors: Employment - Prohibits a cannabis distributor from being denied a license on the basis that it employs individuals who are not party to a collective bargaining agreement.

AB 260 (Santiago) - Human Trafficking: Hotels and Motels - Requires hotels, motels, inns, bed and breakfasts, and other locations that provide transient lodging to post an existing notice...