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Looking Forward to 2010 - New Employment Laws for California Employers

By Teresa R. Tracy

The silver lining for employers coming out of the budget fiasco in Sacramento was the Governor’s decision to veto approximately half of the labor and employment laws passed by the California legislature. Thus, there are relatively few changes that employers doing business in California must make to their policies and handbooks.

Only one of the new laws is of more general application; the others target issues in specific industries or specific groups of employees.

The vetoed bills would have, among other things, established a rebuttable presumption that a choice of law or forum in an employment document was unconscionable if it required the applicant or employee to arbitrate or litigate a claim outside of California if the claim arose in California or would have deprived the litigant of the protection of California law for the claim, expanded the opportunities for claims and damages for persons claiming gender-based pay disparities, and prohibited an employer from terminating an employee based on a threat of garnishment or garnishment for the payment of five or fewer judgments at any one time.

Other bills that employers were following never made it to the Governor, including several closely-watched bills addressing meal and rest breaks.

New California Laws

Employment Leave for Civil Air Patrol
Labor Code section 1500, et seq.

Existing federal law establishes the Civil Air Patrol as the civilian auxiliary of the United States Air Force. Existing state and federal law establish leave provisions for members of the Armed Forces of the United States, the reserve components of the Armed Forces of the United States, and the National Guard.

This new law requires employers with more than 15 employees to provide 10 or more days per year of leave, beyond any leave benefits otherwise available to employees, to employees who have been employed by that employer for at least 90 days immediately preceding the commencement of leave, who are volunteer members of the California Wing of the Civil Air Patrol, and who have been duly directed and authorized by a political entity that has the authority to authorize an emergency operational mission of the California Wing of the Civil Air Patrol, to respond to an emergency operational mission of the California Wing of the Civil Air Patrol.

The employee is required to give the employer as much notice as possible of the intended dates upon which the leave would begin and end.

At the end of the leave, the employer must restore the employee to the position he or she held when the leave began or to a position with equivalent seniority status, employee benefits, pay, and other terms and conditions of employment, unless the employee is not restored because of conditions unrelated to the exercise of the leave rights by the employee.

An employer is not required to grant Civil Air Patrol leave to Civil Air Patrol employees who are required to respond as first responders or disaster service workers for a local, state, or federal agency to the same or a simultaneous emergency operational mission.

An employee whose rights under this law are violated can bring a civil action.

Alternative Workweeks
Labor Code section 511

Existing law authorizes an employer to propose an alternative workweek schedule, as defined, that may be either a single, standard work schedule or part of a menu of work schedule options offered to the employees. Under existing law, approval by secret ballot election of at least 2⁄3 of the affected employees in a work unit is required for adoption of an alternative workweek schedule. Existing law did not define “work unit,” although state regulations did.

This law clarifies that a “work unit” can be a division, department, job classification, shift, a separate physical location, or a recognized subdivision of any of these. It also confirms that a single employee can qualify as a work unit as long as the employee’s job function meets this definition.

The new law also clarifies that, for purposes of an alternative workweek schedule, the employer can propose a menu of work schedule options from which employees can choose, to include a regular schedule of five eight-hour days in a workweek. This would allow employees who don’t want to work the alternative workweek schedule to still vote for it, while retaining the ability to work the regular schedule, thus greatly increasing the chance that the alternative workweek would be adopted through the required secret ballot procedure.

Lastly, the new law confirms that employees, with the consent of their employer, can move on a weekly basis from one work schedule to another on the adopted menu of work schedule options.

Parking Subsidy Penalties
Health and Safety Code section 43845

Existing law requires an employer of 50 persons or more who provides a parking subsidy to employees and who is in an air basin that is designated as a nonattainment area in terms of air quality to offer a parking cash-out program, defined as an employer-funded program under which an employer offers to provide a cash allowance to an employee equivalent to the parking subsidy that the employer would otherwise pay to provide the employee with a parking space.

Under the new law, the State Air Resources Board can impose a civil penalty for a violation of this requirement. A city, county, and air pollution control district or air quality management district can also adopt a penalty or other mechanism to ensure compliance. The penalty can be imposed by the state board or the local agency, but not both.

School Pupil Work Permits
Education Code section 49110

Existing law authorizes the superintendent of a school district, the chief executive officer of a charter school, or specified school employees authorized by the superintendent or chief executive officer in writing, to issue a work permit to a pupil upon receipt of a written request from a parent, guardian, foster parent, or other specified person. A superintendent of a school district is also authorized to designate the principal or another person having charge of a private school to issue work permits. Existing law imposes limits on the number of hours per school day and per week that a pupil with a work permit may work.

This new law additionally authorizes the principal of a public or private school, subject to specified requirements and conditions, to issue, or designate another administrator in the school to issue, work permits to pupils who attend the school. It also requires that the hour limitations that apply to a work permit be based on the school calendar of the school the pupil attends.

Talent Agencies
Labor Code section 1701, et seq.

Existing law regulates the licensing and operation of talent services within the entertainment industry. These provisions govern the making and canceling of contracts, fees to be charged for services, records to be maintained by talent services, bonding requirements, and remedies for violations of these provisions, a violation of which constitutes a crime.

This new law now prohibits a person from engaging in an advance-fee talent representation service, and imposes additional disclosure and contract requirements for a talent service. A willful violation of its provisions can subject the violator to a misdemeanor offense well as a civil action.

Farm Labor Contractors and Garment Manufacturers
Labor Code section 273

Existing law provides for the regulation of farm labor contractors and of garment manufacturers by the Labor Commissioner and for their licensure and registration, respectively, by the commissioner.

Under this new law, an applicant for licensure as a farm labor contractor, for registration as a garment manufacturer, for renewal or reinstatement of the license or registration, and for a change in key personnel, must submit a statement as to whether he or she has satisfied all requirements involving unpaid wages in a final court judgment, a final order issued by the commissioner, or an accord.

Any person who provides false information on the statement is subject to a civil penalty. Furthermore, the commissioner must deny the application if the statement shows unpaid wages, unless the applicant submits a bond or cash deposit to guarantee payment of the wages or a notarized accord demonstrating satisfaction of the obligation. In addition, the commissioner must suspend the license or registration of a farm labor contractor or a garment manufacturer who made a false representation in the statement, and reinstatement is contingent on the applicant demonstrating compliance with the unpaid wages requirements or submitting an accord showing satisfaction of that obligation.

The new law also requires a licensee or registrant to notify the commissioner within 90 days of a final court judgment, final order issued by the commissioner, or an accord imposing requirements relating to unpaid wages and submit with the notice security, as previously described, for the unpaid wages. It also prohibits a licensee or registrant from having a person who is a named judgment debtor in a final court order or order issued by the commissioner for unpaid wages serve in a key personnel capacity and requires the commissioner to suspend the license or registration of a person who violates this prohibition.

Lastly, the law now requires a licensee or registrant to pay to the Labor Commissioner all reasonable costs incurred in adverse license or registration activities under its provisions.

Elevator Companies
Labor Code sections 7311.1 and 7311.25

Existing law requires that a conveyance be erected, constructed, installed, altered, tested, maintained, serviced, and repaired by a person certified by the Cal-OSHA as a certified competent conveyance mechanic.

Under this new law, an elevator company must disclose its status as a certified qualified conveyance company prior to bidding on a project or contracting for services.

In addition, an owner or operator of agricultural production, processing, and handling facilities is authorized to designate a competent employee who is not required to be a certified competent conveyance mechanic to maintain and test, as specified, the man lifts used at the facilities.

Carwash Provisions Extended
Labor Code sections 2051 and 2067

Existing law, set to expire January 1, 2010, regulated the employment practices of car washes and defined the term “employer” for the purpose of those provisions.

That repeal date is now extended to January 1, 2014.

The new law clarifies that a new motor vehicle dealer or an automotive repair dealer, as
those terms are defined, is not an employer for purposes of these regulatory provisions.

Persons with Developmental Disabilities
Welfare and Institutions Code section 4868, et seq.

The Lanterman Developmental Disabilities Services Act grants persons with developmental disabilities the right to receive services and supports to meet their needs, and requires the State Department of Developmental Services to contract with private nonprofit corporations for the operation of regional centers to obtain services and supports for an individual with a developmental disability in accordance with his or her individual program plan (IPP).

This new law would encourage the IPP team to discuss school-to-work opportunities for consumers commencing at 14 years of age. It also requires the formation of a standing committee to implement policies and make annual reports.

Sex Offenders Working with Minors
Penal Code section 290.95

Under existing law, a person required to register as a sex offender who applies for or accepts a position as an employee or volunteer with any person, group, or organization where he or she would be working directly and in an unaccompanied setting with minor children on a regular basis, is required to disclose his or her registrant status. Existing law also prohibits a person required to register as a sex offender because of a conviction for a crime where the victim was a minor under 16 years of age from being an employer, employee, or independent contractor, or acting as a volunteer with any person, group, or organization in a capacity in which the registrant would be working directly and in an unaccompanied setting with minor children on more than an incidental and occasional basis or from having supervision or disciplinary power over minor children.

The new law specifies that “working directly and in an unaccompanied setting” includes, but is not limited to, providing goods or services to minors.

Employment Apprenticeship Programs
Labor Code section 3072

Existing law has procedures for the enforcement of prevailing wage laws, including prevailing wages for apprenticeship programs. Existing law exempts certain public works projects from the prevailing wage requirements applicable to workers if the awarding body contracting for public work initiates and enforces a labor compliance program that meets specific statutory and regulatory requirements and ensures compliance with prevailing rate wage laws.

Under the new law, an awarding body that implements an approved labor compliance program may, upon mutual agreement with the Chief of the Division of Apprenticeship Standards, assist the director in the enforcement of prevailing rate wage laws and other requirements that apply to apprenticeships in public works projects through the operation of that approved labor compliance program under terms and conditions prescribed by the Chief of the Division of Apprenticeship Standards. A contractor can appeal the result of a labor compliance program enforcement action related to apprenticeships in public works projects through specified procedures. If the involvement of the Chief of the Division of Apprenticeship Standards in a labor compliance program enforcement action is limited to a review of an assessment and the matter is resolved without litigation, the awarding body that has implemented the labor compliance program can enforce any applicable penalties and shall deposit any penalties and forfeitures collected in its general fund.

New Federal Laws

FMLA Military Leave Amendments

Employers who are covered by the federal Family Medical Leave Act must now comply with additional leave requirements related to the military. In addition to the amendments that became effective in 2008 (that allowed an employee to take up to 26 workweeks of leave to care for certain family members in the military who suffered a serious injury or illness in the line of duty, as well as allowing an employee to take up to 12 workweeks of leave for a qualifying exigency reason), the 2009 amendment expanded the caregiver provisions to allow family members of veterans to take leave if the veteran was injured in the line of duty and the resulting medical treatment is received within five years of serving in the military. “Serious illness or injury” is also expanded to include the aggravation of existing or pre-existing injuries.

The 2009 amendment also expands the exigency leave to allow family members of all covered active duty services members to take exigency leave.

Lilly Ledbetter Fair Pay Act

In a move generally believed to signal increased litigation, the Fair Pay Act significantly changes the time within which an employee must sue for any compensation disparity believed to be due to discrimination. Under the new law, the time limit is started each time a paycheck reflecting the disparity is issued. Thus, an employer can be sued many years after an employment decision was made, as long as the employee still has a disparate pay differential. The would-be plaintiff must still file a charge with the EEOC within 180 days of the last instance of differential compensation, and is limited to recovering up to two years in back pay.

Despite the limitation on damages, this law makes it even more important for employers to document and retain the legitimate business reasons why employment decisions have been made.

The Genetic Information Nondiscrimination Act (“GINA”)

This law became effective on November 21, 2009. It does not have the same impact on California employers as it does elsewhere, because the California Fair Employment and Housing Act had already prohibited discrimination based on genetic information. However, this federal law provides employees with another avenue of relief.

In addition, it has resulted in a new EEOC poster that can be downloaded, as well as new EEOC “questions and answers” about the new law. The poster is available at www1.eeoc.gov/employers/poster.cfm. The questions and answers are also available on the EEOC web site.

This Alert is published as a service to our clients and friends. It is intended for informational purposes only and is not intended to constitute advertising, solicitation or legal advice.

©2009 Gladstone Michel Weisberg Willner & Sloane, ALC. All Rights Reserved.