With 2,000 bills, some will affect employers

The California legislative session ended with over 2,000 bills being passed. Gov. Jerry Brown now has until Oct. 15 to sign or veto these bills. The governor’s average veto rate is just 13 percent, so it is likely that most of the bills will become state law. Some of the bills passed in this legislative session would have a significant impact on California employers.

In this two-part series, I will discuss some of the new laws — either signed or awaiting the governor’s decision — that will affect California employers.

Expanding Whistleblower Protections

Senate Bill 306 would dramatically alter the framework in place to protect whistleblower employees from retaliation by their employers. The bill would amend Section 98.7 of the Labor Code to provide a fast track for California agencies to investigate suspected retaliation and to penalize employers without going through the court system.

Under the current law, any person who believes they have been retaliated against by an employer may file a complaint with the labor commissioner’s office (also known as the Department of Labor Standards Enforcement) within six months of the retaliation action. The labor commissioner is then supposed to conduct an investigation within 30 days.

Proponents of the bill claim that it is necessary to combat wide-scale retaliation against employees, noting that “in 2014 alone, the state began investigations of 1,874 cases covering 3,045 violations.”

Currently, the labor commissioner must wait for an employee complaint before investigating an employer for suspected retaliation or discrimination over the course of a wage claim. However, if SB 306 is signed into law, the labor commissioner will be able to begin an investigation into suspected retaliation even before an employee complaint is filed.

This bill also provides for a new procedure for the labor commissioner authority to issue citations and penalties directly if the investigation determines that retaliation occurred. These penalties include: “directing the person cited to cease and desist from the violation and take any action necessary to remedy the violation, including, where appropriate, rehiring or reinstatement, reimbursement of lost wages and interest thereon, and posting notices to employees.”

Once the citation is issued, the employer must formally request review within 30 days to have a hearing before the labor commissioner. If they do not request a hearing within the 30-day window, the citation becomes final. Once the commissioner’s office has reviewed the citation and issued an order, the employer must file a petition for writ of mandate within 45 days to get a hearing before a court. If the employer takes no action, the order becomes final. Penalties for failure to comply with an order are $100 per day of non-compliance, up to $20,000 per violation.

Additionally, an employee bringing a civil action for a retaliation claim can seek injunctive relief from the court. The court “shall order” such relief “on a showing that reasonable cause exists to believe that an employee has been discharged or subjected to adverse action for raising a claim of retaliation or asserting rights under any law under the jurisdiction of the Labor Commissioner.” In a concession created during the debate over the bill, the final bill provides that the temporary injunctive relief would not apply if an employer seeks to discipline or terminate an employee for conduct that is “unrelated to the claim of the retaliation.”

Opponents of the retaliation bill, including the California Chamber of Commerce and the California Employment Law Council, have attacked the retaliation bill on multiple grounds. First, they argued that the labor commissioner’s authority would be too broad under the law, and the law would allow state agencies to “completely disrupt the operations of a workplace solely on a ‘reasonable cause’ that a violation has occurred, rather than actual evidence of any violation.” Second, they noted that the bill would shift the burden of proof from the labor commissioner to the employer, because once a citation is issued, the employer bears all the burden of fighting the decision. Lastly, they claimed that the framework to penalize employers was overly punitive.

This bill follows the trend in California employment law to provide maximum protection for whistleblowers. In 2014, three separate bills with additional protections were added to the California Whistleblower Protection Act (Labor Code Section 1102.5).

The bill passed with a 25-14 Senate vote and a 45-29 Assembly vote. It was introduced in February and read three times by the Senate and three times by the Assembly, with amendments introduced in both houses.

Reproductive Health Non-Discrimination Act

Assembly Bill 569 demonstrates California’s position on reproductive rights and employee privacy. The bill would add a provision to the Labor Code such that an employer “shall not take any adverse action against an employee or their dependent or family member for their reproductive health decisions, including, but not limited to, the timing thereof, or the use of any drug, device, or medical service.”

The bill also prevents an employee from waiving this benefit through a contract or agreement with his or her employer. Currently, faith-based employers, such as the California Family Council, may require workers to sign statements of faith or codes of conduct, including contraceptive and reproductive decisions, as a condition of employment.

Employers would need to include these rights in the handbook notice of employee rights and remedies. If employers take adverse employment action against an employee because of their reproductive health decisions, they could civil penalties.

The bill was supported by nearly 200 civil rights, women’s rights, and labor groups, and was opposed by eight groups, including the California Family Council, the California Chamber of Commerce, and the California Catholic Conference. The bill passed 55-20 in the Assembly and 27-13 in the Senate.

Employee Access to Injury and Illness Prevention Programs

Most California employers have been required since 1991 to have an Injury and Illness Prevention Program. According to Labor Code Section 6401.7, the IIPP must lay out the employer’s system for identifying workplace hazards and their plan for correcting these hazards. The IIPP is also supposed to train employees in safe and healthy work practices and ensure that they comply with these practices.

Proponents of Assembly Bill 978 argued that there were simply not enough CAL/OSHA inspectors to ensure that employers were complying with the law and preparing IIPPs. They argued that giving employees the power to request their IIPP would encourage businesses to comply with having these programs set up.

The bill provides that union representatives “shall be treated automatically as an authorized representative of current employees” for the purpose of requesting the IIPP.

The bill was vigorously opposed by several business groups, including the California Chamber of Commerce. Their opposition was based on the fact that the bill allows a broad range of employee representatives, who have no affiliation with the employer to access an internal document. They also claimed that the bill was unnecessary and pre-empted pending action by the Cal/OSHA Standards Board to create a process for employees to access their employer’s IIPP.

The bill passed 46-28 in the Assembly (with five members not voting) and 24-13 in the Senate (with three members not voting).

If the bill is enacted, employers need to ensure that their IIPPs are compliant with the Labor Code and prepare themselves for requests from employees and union representatives.

Sexual Harassment Prevention Training

The California Fair Employment and Housing Act already requires employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment to all supervisory employees within six months of when they start their employment, and to provide this training at least every two years.

Senate Bill 396 expands the content of the mandated sexual harassment training to include, training inclusive of harassment based on gender identity, gender expression, and sexual orientation. It also requires employers to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location. The bill also amends the definition of “individual with employment barriers” to include transgender and gender nonconforming individuals.

The bill was supported by dozens of civil rights and LGBT advocacy organizations, and was not opposed by any groups. The bill passed 28-8 in the Senate (with four senators not voting) and 58-16 in the Assembly (with five members not voting).