Following are summaries of the most significant employment law changes for 2010 for California private employers. Full text of all legislation, and any available committee report analyzing the bills, is available at www.leginfo.ca.gov. All new statutes take effect January 1, 2011, unless otherwise noted.
Organ Donors Protection: New Labor Code § 1508 et seq. (Senate Bill (S.B.) 1304; the “Michelle Maykin Memorial Donation Protection Act”): Requires private employers of 15 or more employees to permit employees who have exhausted all available sick leave to take a leave of absence with pay, not exceeding 30 days, for the purpose of organ donation, and not exceeding five days for bone marrow donation, as prescribed. The new law requires a private employer to restore an employee returning from leave for organ or bone marrow donation to the same position held by the employee when the leave began or an equivalent position. The new law prohibits a private employer from interfering with an employee taking organ or bone marrow donation leave and from retaliating against an employee for taking that leave, or opposing an unlawful employment practice related to organ or bone marrow donation leave. The new law also creates a private right of action for an aggrieved employee to seek enforcement of these provisions.
DLSE Appeals: Amended Labor Code § 98.2 (A.B. 2772): Existing law authorizes the Labor Commissioner to investigate employee complaints and hold administrative hearings over wage disputes. This Amendment requires an employer wishing to appeal an administrative judgment of the Department of Labor Standards Enforcement (DLSE) to first post a bond in the superior court. The bill’s author stated that the purpose for amending the statute was to confirm the section requirement of an employer for a bond on appeal, which one reviewing court had said was a “directory,” not a mandatory, requirement (Progressive Concrete, Inc. v. Parker (2006) 136 Cal. App. 4th 540, 545-552).
Meal Period Exemptions: Amended Labor Code § 512 (A.B. 569): Existing law prohibits, subject to certain exceptions, an employer from requiring an employee to work more than 5 hours without a meal period. This Amendment exempts employees in a construction occupation, commercial drivers, employees in the security services industry employed as security officers, and employees of electrical and gas corporations or local publicly owned electric utilities, as defined, if those employees are covered by a valid collective bargaining agreement that expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for meal periods for those employees, final and binding arbitration of disputes concerning application of its meal period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate. Definitions of these occupation are defined in existing statutes. For other employers, note that Brinker Restaurant Corporation v. Superior Court has been pending with the California Supreme Court. Employers not covered by this Amendment must still comply with meal and rest periods or incur penalties.
Cal-OSHA: Replacement of Labor Code § 6482 (A.B. 2774): Establishes a rebuttable presumption as to when an employer commits a serious violation of Cal-OSHA provisions, and defines the term “serious physical harm.” Also establishes new procedures and standards for an investigation and the determination by the Division of Occupational Safety and Health (within the Department of Industrial Relations) of a serious violation by an employer that causes harm or exposes an employee to the risk of harm.
Unemployment Insurance: Amended Code § 1030 (A.B. 2364): Revises various provisions governing eligibility for unemployment compensation benefits to specify that a claimant is eligible for benefits where he or she left an employer’s employ to protect his or her family from domestic violence abuse.
Background Checks: Amended Civil Code § 1786.16(a)(2)(B)(vi) (S.B. 909): Effective January 1, 2012, requires additional disclosures by an employer to an applicant or employee in connection with a background check through a third party “investigative consumer reporting agency” regarding the website address for the agency’s privacy practices, including whether the individual’s personal information will be sent outside of the U.S.3
Employers involved in state court litigation should also note the Expedited Civil Jury Trial Act (A.B. 2284; new Civil Code §§ 630.01- 630.12). This new statute permits litigants to agree to a dramatically shortened civil jury trial by eight or fewer jurors. The process envisions a jury trial being completed in one day, with each side being given three hours each to present their cases (including opening statements and argument). Both post-trial motions and appeals are significantly limited. The parties are permitted to agree in advance of trial to maximum and minimum recoveries (“high/low” results), about which limits the jury is not told. For smaller employment cases, this expedited jury trial would allow the litigants to have their “day in court” in a significantly shorter period of time. The expedited jury trial process would “sunset” on January 1, 2016, unless reinstituted. If you have any pending litigation, you should review this new law with your legal counsel to determine any affect in your matter.
When it comes to being an employer in California, one thing is certain; things will always be changing. In the key areas of Payroll, Human Resources, Employee Benefits, and Workers’ Compensation and Safety, the rules for you as a business owner are truly a moving target.
