Mandated Predictability Jeopardizes Workplace Flexibility
The topic of predictable scheduling has become a national issue for labor groups over the last several years. The groups have focused primarily on five main areas:
- Lack of adequate notice of work schedules, referenced as “just-in-time scheduling”;
- “Clopening,” which is working a closing shift and an opening shift back-to-back;
- On-call shifts;
- Last-minute requests to work a shift or last-minute cancellation of shifts; and
- Guaranteed hours, or a lack thereof.
Proponents of predictable scheduling have stated that these issues have an impact on low-wage workers and part-time employees who try to work multiple jobs, as well as women who struggle with child care.
Opponents argue that mandating scheduling requirements will limit an employer’s flexibility to accommodate employee requests for time off, limit offers of additional hours for employees who seek or want to work more, and significantly increase the cost of doing business. This national debate about the benefits of predictable scheduling will continue to be a policy consideration in California in 2018.
Private Attorneys General Act
California’s labor and employment laws are known for being unique from the rest of the nation. There is no greater example of California’s distinction is this area than the Labor Code Private Attorneys General Act (PAGA), which allows an aggrieved employee to file a representative action on behalf of himself/herself and all other aggrieved employees for a Labor Code violation.
The California Chamber of Commerce is not aware of any other state that has such a law or is considering a similar proposal. Any state should pause before seeking to mirror this law. PAGA has had a significant litigation impact in California, with many questions left regarding how effective it has been in encouraging compliance with California’s labor and employment protections or compensating employees for harm.
The past decade of legal decisions as well as numerous examples of abuse indicate that the current state of PAGA is in need of further reform.
Blocked an effort in 2017 to eliminate worker and employer flexibility with an unfair scheduling mandate (AB 5); won veto of new data collection mandate on lawful wage differentials (AB 1209).
Defeated a proposal in 2016 discriminating against arbitration agreements in consumer contracts (AB 2667) and in employment agreements (AB 2879).
Derailed attempts in 2016 to permit price-setting by independent contractors (AB 1727); exposing employers to a private right of action related to their Injury and Illness Prevention Program (AB 2895); and eliminating worker and employer flexibility with a mandated scheduling requirement (SB 878).
Defended employers against unwarranted litigation by securing amendments in 2016 to state-run retirement savings program to limit employer liability (SB 1234).
Halting job killer legislation in 2015 that would have increased labor costs, including a one-size-fits all scheduling mandate (AB 357); automatic minimum wage increase (SB 3); significant expansion of the California Family Rights Act (SB 406); and significant increase in workers’ compensation costs (SB 563).
Securing approval of urgency legislation giving employers a limited opportunity to cure technical violations in an itemized wage statement before being subject to costly and devastating litigation, so an employer can devote its financial resources to expanding its workforce (AB 1506 of 2015).
Reducing Unnecessary Requirements in 2015:
- Backed bipartisan state legislation creating additional conformity between state and federal tax law, thereby easing accounting, recordkeeping and filing requirements for businesses (AB 154).
- Supported veto of plan to create expansive new notification requirements from employers to individuals who are not employees in order to solve a narrow concern with variance applications for elevators (AB 578).
- Won defeat of proposal to mandate double pay for almost all employees who worked on Thanksgiving (AB 67).
Clarifying Employer Responsibilities in 2015:
- Worked extensively with author to obtain employer-friendly amendments to clean-up legislation to the 2014 paid sick leave bill, including grandfathering in paid time off policies in effect before the new law, options for different sick leave accrual methods and options for calculating the appropriate rate of pay for paid sick leave (AB 304 of 2015).
- Negotiated amendments to legislation clarifying basis for an employee to take leave under existing school activities leave law (SB 579 of 2015).
- Secured substantive amendments to wage theft bill to alleviate concerns of employers trying to comply with the law (SB 588 of 2015).
- Worked with author to make bill requiring electronic filing of unemployment insurance tax returns less onerous than originally proposed (AB 1245 of 2015).
Winning Safe Harbor for Employers with Gender Equity Pay Bill: Negotiated legislation placing in statute what existing case law requires employers to do, including safe harbor language so that employers can avoid unnecessary litigation when there are legitimate reasons for pay differences. (SB 358 of 2015)
Stopped costly workplace mandates in 2014, including minimum wage increases linked to the Consumer Price Index (SB 935); increased workers’ compensation penalties and litigation (AB 2604); and expansion of discrimination litigation (SB 404).
Stopped economic development barriers in 2014, such as allowing liens on an employer’s property based upon alleged-yet-unproven wage claims (AB 2416).
Supported legislation signed into law in 2014 to clarify that employers don’t violate state law regarding discrimination against employees with driver licenses that note they are not documented citizens if the employer must take action in compliance with immigration law (AB 1660).
Supported legislation in 2014 easing compliance by allowing email or telephone reporting of work-related incident subject to immediate notification of Cal/OSHA (AB 326).
Defeated costly workplace mandates in 2012, such as a bill driving up the cost of commodities to consumers by removing the overtime exemption allowed for agricultural employers (AB 1313); an automatic minimum wage increase (AB 1439); expanded leave requirements (AB 2039); and a targeted burden on companies with call centers (AB 2217). Also secured amendments to remove the threat of frivolous litigation for inquiring into an applicant’s most recent employment background (AB 1450). Advocated veto of bill increasing the cost of food by creating unprecedented and excessive consequences for perceived and actual violations of heat illness prevention regulations (AB 2346).
Supported legislation signed into law in 2012 that preserves existing employer rights to conduct workplace investigations with regard to personal social media (AB 1844).
Negotiated amendments in 2012 to bills that would otherwise have exposed employers to new wage-and-hour litigation or greater likelihood of penalties for good faith administrative errors on wage statements (AB 1744, SB 1255).
Supported veto in 2012 of proposed requirement for individuals and families who hire “domestic work employees” to comply with onerous wage-and-hour mandates that even sophisticated businesses struggle to satisfy (AB 889).
Automation in the Workplace
Position: The advancement of technology and its use in the workforce to increase productivity as well as efficiency is inevitable. However, it should not be viewed as negative or a threat to jobs. Rather, the use of technology should be utilized to complement existing jobs, as well as create new opportunities and careers for workers. Business and labor can partner together on this issue to integrate technology into the workplace, while retraining workers and developing their skills. Automation in the Workplace
Family Leave in California
Position: California already has an extensive list of protected leaves of absences available to employees for a wide range of family-related needs. While such leaves certainly do not address every potential personal situation that may arise, this does not mean that additional, statutory protected leaves of absence are necessary in California. Rather, the CalChamber believes that such individual issues are more appropriately addressed between an employer and employee, taking into consideration the needs of the employee and the business needs of the employer. California cannot jeopardize the growth of the business community by burdening employers with any additional mandatory leaves of absence that the employer must accommodate, regardless of its existing business needs. Family Leave in California
Independent Contractors and the Gig Economy
Position: The challenge employers face with regard to properly classifying individuals as employees versus independent contractors has been an issue in California for years. The growth of the gig economy has simply mainstreamed the challenge.
Given the significant benefits and financial opportunities the gig economy has provided and continues to provide to numerous individuals, simply shutting down the business models that operate in this economy by deeming all individuals to be employees or allowing such individuals to collectively bargain should not be the answer. Rather, California should look at a balanced approach to addressing the concerns of individuals working in the gig economy, as well as preserving the benefits that the gig economy provides. All employers in California, including those in the gig economy, would benefit from objective standards that provide better guidance of who qualifies as an employee versus an independent contractor. Independent Contractors and the Gig Economy (Updated 2/20/18)
Expanding Opportunity — An Agenda for All Californians
2018 Business Issues and Legislative Guide
Agriculture and Resources
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Labor and Employment
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Laura E. Curtis
Labor and Employment, Workers’ Compensation, Elections/Fair Political Practices