Like a pride of lions flashing teeth and fangs, the California legislature is on the hunt in 2018. As has become an annual spring ritual, Sacramento politicians have once again proposed a progressive labor agenda. Below is a list of significant employment law bills pending in Sacramento. It remains to be seen which of these bills will end up on Governor Jerry Brown’s desk in about six months’ time.
1. Medical Marijuana User Rights
Assembly Bill (AB) 2069 proposes to amend the California Fair Employment and Housing Act to extend anti-discrimination protection to medical marijuana users. This bill would prohibit an employer from engaging in employment discrimination against a qualified medical marijuana user on the basis of his or her status as a qualified patient or person with an identification card or based on his or her positive drug test for marijuana. The bill would not prohibit an employer from refusing to hire an individual or discharging an employee using medical marijuana if hiring or failing to discharge the employee would cause the employer to “lose a monetary or licensing-related benefit under federal law.” The bill would not prohibit an employer from terminating the employment of, or taking corrective action against, an employee who is caught on the job under the influence of marijuana.
2. Female Quotas for Corporate Boards
Senate Bill (SB) 826 proposes that publicly traded California corporations be required to appoint a certain number of females to their boards of directors. This bill would require that by the end of 2019, publicly held California corporations with principal executive offices in the state include at least one female individual on their boards. By 2021, that number would increase to 2 or 3, depending on the total number of directors on the board.
3. Annual Pay Equity Data Reporting
SB-1284 proposes that California corporations be required to annually report pay data to the state labor agency. The bill would require that beginning in September of 2019, employers with 100 or more employees submit annual pay data for employees in 10 job categories including executive officials and managers, administrative support workers, sales workers, technicians, laborers, and others. The pay data would be further categorized by race, ethnicity, and sex.
4. Increases in Paid Sick Leave
AB-2841 proposes to increase the minimum amount of sick pay an employer must provide under the California paid sick leave law. Employers that provide paid sick leave in an annual lump sum would be required to increase the allocation to 40 hours, from 24 hours under current law. Additionally, if an employer provides sick pay on an accrual basis, the accrual cap would be increased to 80 hours, from 48 hours under current law.
5. Expanded Sex Harassment Prevention Training
SB-1343 would amend the current California sexual harassment prevention harassment training requirement so that most companies would be required to provide such training to all employees. Currently, only employers with 50 or more employees must provide the training, and only supervisors are required to receive it. Beginning in 2020, any employer with 5 or more employees would be required to provide two hours of harassment prevention training every two years to all supervisory and non supervisory employees. The employer could develop its own training program or, as an alternative, it could use an online sexual harassment training video that would be developed by the state.
6. Records Retention of Sexual Harassment Complaints
AB-1867 would require any employer with 50 or more employees to maintain records of employee complaints of sexual harassment for 10 years from the date of filing.
7. Leave of Absence for Sexual Harassment Victims
AB-2366 would amend California Labor Code sections 230 and 230.1, which give protected status to victims of domestic violence, sexual assault, or stalking. Under current law, an employer must accommodate a victim’s need for leaves of absences for specified purposes and may not discriminate or retaliate against employees based on their use of such leave. The bill proposes to extend the same protections to employees who are victims of sexual harassment. The bill would also add protection for employees who are immediate family members of victims of domestic violence, sexual assault, stalking, or sexual harassment.
8. Prohibition Against Confidential Sexual Harassment Settlements
SB-820 would prohibit confidential settlement agreements relating to sexual harassment claims. It would provide that a provision in a settlement agreement that prevents the disclosure of factual information relating to a sexual harassment legal action is prohibited, “unless a claimant requests the inclusion of such a provision, if the pleadings state a cause of action relating to specified claims of sexual assault, sexual harassment, or harassment or discrimination based on sex.”
9. Increased Penalties for Payday Timing Violations
AB-2613 seeks to impose additional penalties on employers for the late payment of wages. The bill would amend California Labor Code section 204, which addresses the timing of regular payroll dates. The late payment of wages would result in a $100 per day per employee penalty for up to 7 days. Willful or repeated violations would result in a $200 per day penalty.
10. Extended Time to File Wage Claims
AB-2946 proposes to extend the time to file a charge of discrimination with the state labor agency, the California Division of Labor Standards Enforcement, to three years, from the current limit of six months.
11. Extended Time to File Discrimination Claims
AB-1870 proposes to extend the time to file a charge of discrimination or harassment with the California Department of Fair Employment and Housing to three years, from the current limit of one year.
12. Lactation Accommodation
SB-937 proposes to amend existing California law pertaining to an employer’s obligation to accommodate an employee desiring to express breast milk in the workplace. New commercial buildings with at least 15,000 square feet of space would be required to include “lactation space.” The lactation spaces would need to be of a certain minimum size; be located within 500 feet of all employees’ work spaces; and include an electrical outlet, a sink, and a door sign. In addition to the new building requirements, the existing lactation accommodation law would be amended to require employers to provide a clean room with access to electricity, a place to sit, and a shelf. Employers would also be required to provide a sink and a refrigerator nearby. Designating a multipurpose room for lactation purposes would be permissible provided that its use as a lactation space takes priority over other uses.
Christopher W. Olmsted (San Diego)
Christopher Olmsted is a shareholder in the firm's San Diego office. Mr. Olmsted helps businesses avoid employment-related legal claims by providing California employment law compliance advice. He also defends employers in a variety of litigation matters.
This article was drafted by the attorneys of Ogletree Deakins, a CEA partner and labor and employment law firm representing management, and is reprinted with permission. This information should not be relied upon as legal advice.