In this episode of The Workplace podcast, CalChamber Helpline manager and employment law counsel Matthew Roberts and Chris Micheli, of Aprea & Micheli, give an update on important labor and employment-related bills in the California Legislature that employers should keep an eye on, such as SB 616, which expands California’s paid sick leave law; AB 524, which adds a new protected class under the Fair Employment and Housing Act; SB 399, which bans employers’ speech; SB 365, which undermines arbitration; and SB 809, which prohibits consideration of conviction history in employment.
With just over three months left, we are just over the halfway point of this year’s legislative session, Micheli says in kicking off the podcast. The Legislature will be heading into their summer recess in mid-July and will return in mid-August. When they return, there will be a five-week sprint to the end of the session on September 14. After this, the Governor will have until mid-October to decide whether to sign or veto the 1,000–1,100 bills sent to him.
One bill that will have a big impact on employers is SB 616 (Lena Gonzalez; D-Long Beach). Labeled a job killer by the CalChamber, this bill amends California’s mandatory paid sick leave law.
About a decade ago, Assemblymember Lorena Gonzalez (D-San Diego) authored the bill that created California’s three-day paid sick leave mandate. This year, Senator Lena Gonzalez (unrelated to Lorena), introduced SB 616, which more than doubles the number of paid sick leave days under the law, from three to seven, Micheli explains.
The bill came out of the state Senate on a party-line vote, but the business community is hoping that the state Assembly will add in some guardrails and some limitations, and not increase the number of paid sick leave days by as much, he says.
Another important employment law-related bill being considered in the Legislature is AB 524 (Wicks; D-Oakland). This CalChamber job killer bill adds a family caregiver status to the current 18 protected classes in the Fair Employment and Housing Act (FEHA), Micheli says.
One of the things that makes this bill so concerning to the employer community is its enforcement mechanism. Micheli explains that if an employer violates FEHA, not only are there attorneys’ fees, injunctive relief, and compensatory damages, but even punitive damages are available.
“So anytime California in any way tries to amend or, in this case, add a new protected class to the FEHA statute, we really get quite concerned,” he says.
A problem with the “family caregiver” status is how it’s defined. Currently a family caregiver could encompass someone who contributes to the care of one or more family members, as well as somebody that’s called a “designated person.” Undefined, however, is what “contributes” means exactly. Micheli points out that someone who brings dinner to an elderly neighbor once a week could fall under the caregiver definition.
“So unfortunately, when you add such a broad, and use undefined terms in the definition of this new, protected classification of family caregiver status, boy, what are we going to have? And what sort of litigation are we going to have?” Micheli asks.
A third bill that employers should pay attention to is CalChamber job killer SB 399 (Wahab; D-Hayward). This bill, Micheli says, basically precludes an employer from forcing employees to receive communications or to participate in any communications. Like AB 524, SB 399 uses vague terms and fails to define them. For example, the bill does not define what “participate” means.
The employer community needs clear guidelines, and these bills fail to provide that, Micheli points out.
“Even if you’re going to impose a new burden or a new mandate on employers, at least make it as easy as possible to comply with. And this bill unfortunately, doesn’t do that,” he says.
SB 399 precludes employers from talking about religious or political matters. But under current law, employers already are prohibited from forcing employees to participate in political events. The bill also includes legislation and regulation, but, again, fails to define either of those terms, Micheli says.
Another problematic aspect of SB 399 is that it adds a new provision that the law is subject to the Private Attorneys General Act (PAGA), he tells Roberts.
Another important employment law bill this year is CalChamber job killer SB 365 (Wiener; D-San Francisco). The bill would undermine arbitration by automatically staying orders or judgments upon appeal, Micheli explains.
This bill arises from continuing efforts by the plaintiffs’ bar — employment lawyers on the plaintiff side — and labor unions to limit the use of arbitration agreements in California. Similar bills have been vetoed in the past by Governor Jerry Brown.
Besides the poor policy, SB 365 is federally preempted, Micheli says. If this bill gets signed into law, it will be challenged and will likely be struck down by the federal courts.
The last bill discussed on the podcast was SB 809 (Smallwood-Cuevas; D-Los Angeles). This CalChamber job killer bill prohibits nearly every employer from considering the conviction history of an applicant or an existing employee in employment decisions and imposes a cumbersome process on employers that are legally not allowed to hire individuals with certain convictions.
The Senate Judiciary Committee had significant concerns and made some tweaks before the bill was sent to the fiscal committee, where it is being held on the suspense file. The bill will no longer proceed any further this year, but it could be considered next January when the Legislature reconvenes for its second and final year of the two-year session, Micheli explains.