Continuing a trend from recent years, the California Legislature passed, and Gov. Jerry Brown signed into law, numerous labor and employment bills in 2016.
Each becomes effective on Jan. 1, 2017, unless otherwise stated. This alert highlights the following select, significant new laws in further detail below:
Beginning Jan. 1, 2017, the minimum wage will increase from $10 per hour to $10.50 per hour for California employees of employers with 26 employees or more. For employees of employers with 25 employees or less, the minimum wage will remain at $10 per hour in 2017, and will not increase to $10.50 per hour until Jan. 1, 2018. SB 3 sets forth a schedule for minimum-wage increases through 2023, which increases are subject to temporary suspension by the governor, based on certain determinations.
SB 836 made numerous amendments to the PAGA statute, effective June 27, 2016. Many of the amendments are procedural but ultimately increase the Labor Workforce Development Agency's (LWDA) general oversight over PAGA investigations and civil actions. Overall, it is unclear what effect these amendments will have on the frequency and settlement of PAGA actions. These amendments are more limited than the several other, more substantive amendments that were introduced but not passed by the California legislature in 2016. A summary of SB 836's amendments are set forth below:
This law provides that itemized wage statements required to be provided to employees need not include the total hours worked by an employee that is exempt from overtime under California law.
This law eliminates the Jan. 1, 2017, sunset provision of the Domestic Worker Bill of Rights, thereby extending its wage and hour protections for specified domestic work employees.
This law requires that an employer or person seeking a writ of mandate to contest a Labor Commissioner citation to post a bond in an amount equal to the dollar amount assessed under the citation, excluding penalties.
This law provides that a legislative body of a city or county is authorized to delegate that body's authority to issue subpoenas, and to report noncompliance thereof, to the judge of the superior court of the county, to a county or city official, or department head in order to enforce any local law or ordinance, which includes local wage laws.
This law prohibits an employer from paying any of its employees at wage rates less than the rates paid to employees of another race or ethnicity for substantially similar work.
This law creates a schedule that would phase in specified overtime requirements for agricultural workers from 2019 to 2022. Employers who employ 25 or fewer employees have an additional three years to comply with the phasing in of these overtime requirements. The governor has the authority to delay the implementation of these new overtime requirements if the governor also suspends the implementation of the scheduled state minimum-wage increases.
Currently, an employee of a temporary services employer must be paid weekly. The new law, with certain exceptions, makes the weekly pay requirement applicable to security guards employed by a private patrol operator who is a temporary services employer, as provided. This law became effective on July 22, 2016.
Starting July 1, 2017, the salary threshold for the overtime exemption of an individual employed as a teacher at a private elementary or secondary academic institution will require that the employee earn no less than the lowest salary offered by any school district or the equivalent of no less than 80 percent of the lowest schedule salary offered by the school district or county in which the private elementary or secondary institution is located.
Beginning Jan. 1, 2018, this law revises the current formula for determining disability insurance and paid family leave benefits for eligible persons, to provide a weekly benefit amount minimum of $50 and to increase the wage replacement rate to specified percentages, not to exceed the maximum workers' compensation temporary disability indemnity weekly benefit amount.
Additionally, the current seven-day waiting period for benefit payout will be removed beginning Jan. 1, 2018.
Employees that are providers of in-home supportive services are currently not entitled to paid sick leave under the Healthy Workplaces, Healthy Families Act of 2014. This law, beginning July 1, 2018, entitles a provider of in-home supportive services who works in California for 30 or more days within a year from the commencement of employment to specified paid sick leave.
This law authorizes an employee under a special license in a nonprofit sheltered workshop, day program or rehabilitation facility to bring an action under the act for any form of harassment or discrimination prohibited by the FEHA.
Current law prohibits an employer from paying an employee 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, and which are performed under similar working conditions. There are, however, exceptions to this prohibition, including when the payment is made based on any bona fide factor other than sex, such as education, training or experience.
This law specifies that an employee's prior salary cannot, by itself, justify any disparity in compensation under the bona fide factor exception to the above prohibition.
This law prohibits an employer from asking an applicant for employment to disclose – or from utilizing as a factor in determining any condition of employment – information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law. This law also provides that the word “conviction”, for purposes of permissible employer requests and uses of certain conviction information, does not include any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court law. Thus, employers may not request or consider such adjudications, court orders, or actions.
Also, health facility employers are prohibited from inquiring into specific events that occurred while the applicant was subject to juvenile court law and from inquiring into information concerning or related to an applicant's juvenile offense history that has been sealed by the juvenile court. Health facility employers may, however, seek disclosure of juvenile offense history if they provide the applicant with a list describing offenses for which disclosure is sought.
This law makes it unlawful for an employer to request more or different documents than are required under federal law, to refuse to honor documents tendered that on their face reasonably appear to be genuine, to refuse to honor documents or work authorization based upon the specific status or term of status that accompanies the authorization to work, or to re-investigate or re-verify an incumbent employee's authorization to work.
This law requires the Division of Occupational Safety and Health, by Jan. 1, 2019, to propose to the Occupational Safety and Health Standards Board, for the board's review and adoption, a heat illness and injury prevention standard applicable to workers working in indoor places of employment.
For contracts entered into, modified or extended on or after Jan. 1, 2017, this law prohibits an employer from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California a claim arising in California or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. Any provision violating this law is voidable upon request of the employee. The law also requires that a dispute over a voided provision be adjudicated in California under California law. An employee may pursue injunctive relief, and a court is authorized to award reasonable attorneys' fees to the enforcing employee. This new law does not apply to contracts in which an employee is represented by legal counsel.
On or before July 1, 2017, employers must inform employees, upon hire and upon request, of their rights under California law when they are victims of domestic violence, sexual assault or stalking. The Labor Commissioner, on or before July 1, 2017, must develop a form that an employer may elect to use to comply with these provisions and to post it on the commissioner's internet website. Employers are not required to comply with this notice requirement until the Labor Commissioner posts the form.
This law prohibits a commercial online entertainment employment service provider that enters into a contractual agreement to provide specified employment services to an individual paid subscriber from publishing information about the subscriber's age in an online profile of the subscriber and requires the provider, within five days, to remove from public view in an online profile of the subscriber certain information regarding the subscriber's age on any companion internet website under the provider's control if requested by the subscriber. Also, a provider that permits the public to upload or modify content on its own internet website or any internet website under its control without prior review by that provider is not in violation of these provisions unless the subscriber first requested the provider to remove age information.
This law requires eligible employers that do not offer specified retirement plans or accounts to offer a payroll deposit retirement savings arrangement so that employees may participate in the California Secure Choice Retirement Savings Program within specified time periods based on the number of eligible employees that the employer has.
Under this law, state agencies and the California Legislature are prohibited from requiring any of its employees, officers or members to travel to, or approve a request for, state-funded or state-sponsored travel to any state that, after June 26, 2015, has enacted a law voiding or repealing existing state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression, or has enacted a law that authorizes or requires discrimination against same-sex couples or their families, or on the basis of sexual orientation, gender identity or gender expression.
Beginning March 1, 2017, all single-user toilet facilities in any business establishment, place of public accommodation or government agency must be identified as all-gender toilet facilities.
This law entitles a party to an arbitration the right to have a certified shorthand reporter transcribe any deposition, proceeding or hearing as the official record in the arbitration.
Currently, California law prohibits smoking tobacco products inside an enclosed space at a place of employment. A violation of this prohibition is punishable by a fine. This law expands the prohibition on smoking in a place of employment to owner-operated businesses. It also eliminates the specified exemption that permits smoking in certain work environments. For example, smoking tobacco products will now be prohibited in hotel lobbies, bars, taverns, banquet rooms, warehouse facilities and employee break rooms.
Many California municipalities have enacted their own requirements affecting the workplace, particularly in the areas of minimum wage, paid sick leave, paid family leave and "ban the box" provisions. Employers must also comply with these local laws that affect their applicants, employees and workplace issues.
Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem. Moreover, the laws of each jurisdiction are different and are constantly changing. If you have specific questions regarding a particular fact situation, we urge you to consult competent legal counsel.
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