The California Governor and legislature have been busy passing 808 pieces of legislation this past year that have become effective, or will become effective, during the 2016 calendar year. This article attempts to provide a brief overview of some of the key new laws that could potentially impact business operations in California. Unless otherwise noted, the new laws are effective as of January 1, 2016.
School Activities Leave Expanded – Existing law prohibits an employer with 25 or more employees from discharging or discriminating against an employee who is a “parent” for missing work to participate in certain child-related activities, up to a maximum of 40 hours annually. Additionally, existing law requires employers who provide sick leave to permit the use of accrued sick leave to attend to the illness of specified “family members.” SB 579 (1) expands the definition of “parent” to include stepparents and foster parents, (2) expands the list of applicable child-related activities, and (3) refines the definition of “family member” to be consistent with the definition used in the Healthy Workplaces, Healthy Family Act of 2014, which is (a) a child (i.e, biological, adopted or foster child, step-child or legal ward, or child to who the employee stands in loco parentis), (b) a biological, adoptive or foster parent, step-parent or legal guardian of an employee or employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child, (c) a spouse, (d) a registered domestic partner, (e) a grandparent, (f) a grandchild or (g) a sibling.
Mandatory Paid Sick Leave Clarified - The Healthy Workplaces, Healthy Family Act of 2014 (AB 1522) requires that employers provide paid sick leave to California employees who work at least 30 days during a 12-month period, at an accrual rate of one hour per 30 hours worked. AB 304 clarifies certain ambiguities and uncertainties in this Act, including: clarifying that a covered employee must work for the same employer to satisfy the 30-day requirement; allowing for alternative accrual methods; providing a “grandfather clause” for employers that already provided paid sick leave; and providing alternative payment methods for employees who use paid sick leave. This law went into effect immediately upon the Governor’s execution on July 13, 2015.
Discrimination Based Upon Citizenship, Primary Language or Immigration Status Prohibited – Existing law prohibits business establishments providing accommodations and services from discriminating based upon a person’s sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status or sexual orientation. SB 600 expands these protections to cover discrimination based upon a person’s citizenship, primary language or immigration status; provided, however, this expansion does not require the provision of services or documents in a language other than English, beyond that which is already required pursuant to existing federal, state and local laws.
Discrimination Against Children’s Immigration Status Prohibited – Existing law prohibits employers from discriminating against employees or applicants based upon the person’s immigration status and making inquiry into a person’s immigration status unless the employer has shown by clear and convincing evidence that the inquiry is necessary to comply with federal immigration law. AB 560 makes it explicit that these protections extend to minor children (i.e., workers under the age of 18). Employment Discrimination Based Upon Request for Accommodation Prohibited – Existing law prohibits employers from discriminating against employees, or those seeking or training to be employees, based upon, among other things, a person’s religious creed or physical or mental disability. Existing law further requires an employer to provide reasonable accommodation of a person’s disability and religious beliefs. AB 987 extends these protections such that, regardless of whether the request was granted, the mere act of making the request is now protected.
Employment Discrimination Based Upon Request for Accommodation Prohibited – Existing law prohibits employers from discriminating against employees, or those seeking or training to be employees, based upon, among other things, a person’s religious creed or physical or mental disability. Existing law further requires an employer to provide reasonable accommodation of a person’s disability and religious beliefs. AB 987 extends these protections such that, regardless of whether the request was granted, the mere act of making the request is now protected.
Family Members of Whistleblowers Protected – Existing law prohibits an “employer” from discharging or discriminating against any employee or applicant who engages in legally protected conduct. AB 1509 (1) extends these protections to employees who are family members of a person engaged in, or perceived to be engaged in, such legally protected conduct and (2) expands potential joint employer liability by changing the definition of “employer” to include “client employers” (i.e., businesses who are provided workers to perform labor from a labor contractor).
Gender Neutral Pay Clarified – Existing law prohibits payment to employees at wage rates less than the rates paid to employees of the opposite sex “in the same establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility,” except under specific conditions, i.e., a seniority system, a merit system or a bona fide factor other than sex. SB 358 (1) expands the grounds for an alleged violation by amending this prohibition to cover “substantially similar work, when viewed as a composite of skill, effort, and responsibility” and (2) places an affirmative burden on the employer to show that the specific conditions apply in instances of disparate wage rates.
E-Verify Use Limited – Existing law prohibits state or local regulation requiring employers to use the federal E-Verify system to verify a person’s employment authorization with the federal government unless under specific instances. AB 622 (1) makes it unlawful to use the E-Verify system for existing employees or applicants who have not received an offer of employment, except as required by federal law, and (2) requires employers to comply with notification procedures under any memorandum of understanding governing use of the E-Verify system upon using the system and receiving a non-confirmation letter regarding the applicant’s information submitted for verification.
Employer Allowed Opportunity to Cure Violation of Failure to Provide Required Wage Information – Previously the law required that employers provide itemized wage statements, including inclusive dates of applicable pay periods and the name and address of the employer, with no opportunity to cure violations. AB 1506 amended the law to allow for a 33-day period to cure violations related to failure to provide this information. This law went into effect immediately upon the Governor’s execution on October 2, 2015.
Protected Personal Information Expanded – Existing law requires businesses that own or license computerized “personal information” to provide reasonable security for that information. AB 1541 expands the applicability of this requirement (1) to include businesses that maintain “personal information” and (2) expands the definition of “personal information” to include (a) “health insurance information” in combination with a person’s first name or initial and the person’s last name and either the name or information is not encrypted or redacted and (b) a username or email address combined with a password or security question/answer that allows online account access.
Additional Requirements for Notice of Data Breach – Existing law requires businesses that own or license computerized data that includes personal information to disclose a breach in the security of the data related to unencrypted personal information in the most expedient time possible, without unreasonable delay and in plain language. SB 570 expands the requirements for the notice, requiring the notification to be titled “Notice of Data Breach” and usage of specified headings for the information conveyed by the notice. A model security breach notification form is provided.
Minimum Wage Increase – Although technically not a new law, AB 10, which passed in 2013, requires that the minimum wage increase to $10 per hour on January 1, 2016.
Businesses are encouraged to update their employee handbooks and company policies to reflect the above legislation. If you have any questions or concerns about the contents of this article, or would like to engage in a more thorough review and analysis, we would be pleased to assist you.
The foregoing article was prepared by Richard Rasmussen and Pablo De Leon. Anglin Flewelling Rasmussen Campbell & Trytten, LLP (AFRCT) is a full-service law firm, providing legal counsel in most every area encountered by businesses operating in California.