Senate Policy Committee to Consider Bills Increasing Litigation

Two California Chamber of Commerce-opposed bills that could expose employers to costly litigation will be heard in the Senate Labor, Public Employment and Retirement Committee on Wednesday.

  • SB 142(Wiener; D-San Francisco) Lactation Accommodation — Significantly amends current law regarding lactation accommodations by implementing new building code requirements, location standards, employer policy requirements, document retention and supplementary Labor Code penalties.
  • SB 171(Jackson; D-Santa Barbara) Disclosure of Company Pay Data — Requires California employers to submit pay data to state agencies that could give the false impression of pay disparity where none may exist.

SB 142: Lactation Accommodation

Although the CalChamber-led coalition believes SB 142 is well intentioned, it is quite burdensome for employers and exposes employers to potential litigation traps, including, but not limited to:

  • Creating a new private right of action;
  • Duplicating liability that already exist in the Fair Employment and Housing Act (FEHA);
  • Creating new avenues for Private Attorneys General Act (PAGA) liability; and
  • Imposing overly burdensome building code requirements

Governor Signed Legislation Last Year

Last year, Governor Edmund G. Brown Jr. signed CalChamber-supported AB 1976 (Limón; D-Santa Barbara), which established a new mandate regarding lactation accommodations for California employers. The new law requires employers to provide a location other than a “bathroom” for an employee to express breastmilk.

The Legislature should allow time for AB 1976 to be implemented before requiring new lactation accommodation requirements that expose employers to additional and significant liability.

Building Code Requirements Will Cost Employers $30,000 to $105,000

SB 142 requires installation of lactation space in specific buildings when there is a tenant improvement project. To meet the standards imposed by SB 142, it will cost employers an estimated $30,000 to $105,000 for an existing building. Additionally, it is estimated to cost employers that must comply with the building requirements approximately $5,400 to $14,400 each year in ongoing maintenance and costs for this type of buildout. The cost may vary based on the market and property value, but the construction costs are real numbers based on lactation room buildouts required by a similar local ordinance.

Unnecessarily Duplicates Retaliation Liability

SB 142 unnecessarily expands employer liability regarding lactation accommodation retaliation. FEHA already regulates discrimination and retaliation issues involving lactation accommodations.

Expands Employer Civil Liability

SB 142 expands employer liability regarding potential rest break violations. Current state law requires employers to provide reasonable break time for employees needing to express milk.

Additionally, since SB 142 is amending the Labor Code, employers would also be exposed to PAGA liability. PAGA allows an individual to pursue a “representative action” on behalf of similarly aggrieved employees without being subject to the strict filing requirements of a class action.

SB 142 also adds a new private right of action. Thus, an aggrieved employee would have the option of filing a case in civil court without needing to file with the Labor Commissioner or filing a PAGA action. This private right of action includes a one-way fee-shifting provision.

SB 171: Pay Data Disclosure

Because SB 171 completely relies on job classifications and titles, it may create a false impression of wage discrimination or unequal pay where none may exist.

Requires California Employers to Comply with a New, Separate Mandate

As drafted, SB 171 presumes that the federal EEO-1 pay data reporting requirement already went into effect; however, the pay data provision of the EEO-1 reporting requirement was suspended by the federal government. While the federal courts recently reinstated the requirement, it is likely that the decision will be appealed.  Thus, the current state of the federal EEO-1 pay data reporting requirement is still uncertain and SB 171 would create a new reporting requirement for employers that do business in California.

Utilizes Data That May Be Impacted by Employee Choices

SB 171 requires employers to provide pay data regarding an employee’s total earnings as shown on the Internal Revenue Service’s Form W-2. However, a W-2 form does not take into account an employee’s own decisions and actions that can also create wage disparity which has nothing to do with discriminatory intent of an employer.  Employee choices and actions will not be captured or reflected in the data collected pursuant to SB 171 to justify a potential wage disparity.

Again, this omission on the report will create the false impression of wage discrimination where none may exist.

SB 171 Is Premature

SB 171 is premature because there is a Pay Equity Task Force assigned to analyzing the Equal Pay Act, as well as workplace and compensation policies that can lead to successful compliance with the act. The Pay Equity Task Force is supposed to release an additional report regarding the Equal Pay Act this year. Thus, SB 171 is premature, and the Legislature should wait for the Pay Equity Task Force’s report before imposing a new mandate on employers.

Action Needed

Both SB 142 and SB 171 are set for hearing in the Senate Labor, Public Employment and Retirement Committee on March 27. Contact your senator or member of the committee and urge them to oppose SB 142 and SB 171.

Staff Contact: Laura Curtis

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