A Not-So Happy New Year for California Employers: 2014 Legislative Update

It has become an annual New Year’s tradition in California -- employers getting up to speed on a host of new employment laws that will affect them in the coming year. The California Legislature was busy in 2013 imposing new burdens on employers for 2014 and beyond. We previously blogged about an increase in the state minimum wage and a statutory clarification of the definition of sexual harassment, but those new laws are only the tip of the iceberg. Here’s our annual summary of the most important new laws affecting California employers.

  • Expanded Whistleblower Protection (SB 496): California law already prohibits employers from retaliating against employees who report the employer’s violation of state or federal law to a government or law enforcement agency. SB 496 expands whistleblower protection in several ways. First, it prohibits retaliation against internal whistleblowers, so an employee who reports suspected violations within the company is entitled to whistleblower protection to the same extent as an employee who reports violations to a government agency or law enforcement. Second, SB 496 provides whistleblower protection for reports of violations of local ordinances and regulations, as well as state and federal statutes. Third, SB 496 provides whistleblower protection to employees whose duties include the disclosure of legal compliance issues, which overturns case law excluding such employees from whistleblower protection.
  • Immigration-Related Practices (AB 263/SB 666)AB 263 and SB 666 create a variety of new anti-retaliation provisions, most (but not all) of which relate to immigration-related practices. These bills provide:
    •  It is unlawful for an employer to engage in “unfair immigration-related” practices against an employee in retaliation for exercising a legal right. “Unfair immigration-related practices” include requesting more or different documents than are required under federal immigration law or refusing to honor documents that, on their face, reasonably appear to be genuine; using E-Verify to check the employment authorization status of a person at a time or in a manner not required under federal law; and threatening to file or filing a false police report or threatening to contact or contacting immigration authorities. An employee’s protected activity under the new law includes filing a complaint or informing any person of an employer’s violation of the Labor Code, seeking information regarding whether an employer is in compliance with the Labor Code, and informing a person of his or her potential rights under the Labor Code or assisting another person in asserting those rights. The new law creates a rebuttable presumption that an adverse action taken within 90 days of the employee exercising a protected right is retaliatory. Violation of the law can result in an injunction against the employer, damages, penalties and attorneys’ fees, and the suspension or revocation of business licenses held by the employer.
    • Employers are prohibited from taking adverse action against employees for updating their personal information, unless the updates are directly related to the job. It appears that this part of the new law is intended to prohibit the termination of an employee who provided a false social security number or other information at the time of hire, but who later receives a valid work permit or social security card.
    • It is unlawful for an employer to retaliate against an employee for complaining that the employee is owed unpaid wages. Violation of this provision carries a civil penalty of up to $10,000 per occurrence.
    • It is not necessary for employees to exhaust administrative remedies through the Labor Commissioner in order to sue the employer for violation of any law over which the Labor Commissioner has jurisdiction.
  •  Discrimination Based on Military or Veteran Status (AB 556): AB 556 adds “military and veteran status” to the list of categories protected from employment discrimination under the California Fair Employment and Housing Act. The bill defines “military and veteran status” to include members or veterans of the U.S. Armed Forces, U.S. Armed Forces Reserve, U.S. National Guard and California National Guard. 
  • Recovery Periods for Outdoor Workers (SB 435): State law imposes a penalty of one hour’s pay for each day that an employee is required to work during a meal or rest period. SB 435 expands this penalty to situations in which an employer fails to provide a “recovery period” that is otherwise required by law. A “recovery period” is defined as a cool down period afforded an employee to prevent heat illness. Employers with outdoor employees should confirm they are in compliance with CalOSHA regulations regarding heat illness prevention, including providing access to shade and allowing employees to take a cool down period of at least five minutes when the temperature exceeds 85 degrees Fahrenheit.
  • Victims of Domestic Violation, Sexual Assault and Stalking (SB 400): Under existing law, employers are prohibited from taking adverse action against employees who are victims of domestic violence or sexual assault who need time off in connection with court proceedings or to seek medical attention as a result of these crimes. SB 400 extends these protections to employees who are victims of stalking. The new law also requires employers to provide reasonable accommodations for such victims. These requirements are the same reasonable accommodation requirements and procedures that exist under California’s disability discrimination laws.
  • Limitation of Employer’s Recovery of Attorneys’ Fees in Wage Cases (SB 462): Attorneys’ fees can be recovered by the prevailing party when an employee brings an action for non-payment of wages. SB 462 provides that employers who prevail in these cases can only recover attorneys’ fees only if the court finds that the employee brought the action in bad faith. SB 462 does not define “bad faith” and makes recovery of attorneys’ fees much more difficult for employers. 
  • San Francisco Employers - Flexible Work Schedules: A new San Francisco ordinance requires employers of 20 or more employees to consider an employee’s request for flexible work arrangements to accommodate caregiver responsibilities. When an employee makes a written request for a flexible work arrangement, the employer must meet with the employee within 21 days of the request, and within 21 days after the meeting the employer must provide a written response confirming or denying the request. If the employer denies the request, it must provide a bona fide business reason for the denial. An employee whose request was denied can file a complaint with the San Francisco Office of Labor Standards Enforcement, which has the authority to investigate whether the employer complied with the ordinance’s procedural requirements.

Stoel Rives Presents Webinar On Employer Group Health Plans After U.S. Supreme Court Decision Upholding "Obamacare"

As everyone who was not on Mars this summer knows, the U.S. Supreme Court issued a surprising and historic decision upholding key provisions of President Obama's Affordable Care Act ("ACA").  To help employers navigate the requirements of the law now that it has the stamp of approval of the Supreme Court, and to provide other updates on developments in federal health care reform, members of the Stoel Rives employee benefit and employment groups have been touring the region with a 90-minute presentation entitled "Health Care Reform After the Supreme Court’s Decision: Group Health Plan Update 2012."  The seminars were presented by Stoel Rives attorneys Howard Bye-Torre, Melanie Curtice, Bethany Bacci, Steve Woodland, Matthew Durham, Carolyn Walker, James Dale, Renae Saade, and Tony DeCristoforo in Portland, Seattle, Salt Lake City, Boise, and Anchorage during September and October.

Shameless Plug Alert!  Webinar Presentation on October 25, 2012

If you missed the show when it came to your town or are just interested in learning about this complex and evolving area of employee benefits law, there is one more opportunity to attend the seminar via a webinar which will be conducted on Thursday, October 25 at noon, Pacific Time. To RSVP for the webinar and get instructions for attending, please click here.

What's Covered

The seminars reviewed the Supreme Court decision upholding the constitutionality of the Affordable Care Act (ACA), and also some of the ACA's impacts which have already been felt by group health plans and employers, such as the requirement to cover children through age 26.  Regulatory developments planned for 2013 are also discussed, including:

  • the requirement to report the cost of health care coverage on W-2s;
  • the new disclosure document required by the ACA, the Summary of Benefits and Coverage (SBCs);
  • required 100% coverage for FDA-approved contraceptive methods for women; and
  • the reduction to $2,500 of the maximum amount that an employee can contribute to a health care flexible spending account. 

The seminars also discussed the new two federal fees on group health plans for 2013-2018, the Patient-Centered Outcomes Research Institute fee and the transitional reinsurance program fee. The seminars concluded with a discussion of the ACA requirements for 2014, including

  • the mandate for individuals to have health insurance coverage;
  • employer pay-or-play penalties, including new IRS guidance on the definition of “full-time” employees for purposes of the penalties;
  • recent IRS guidance on the 90-day maximum waiting period for health plans. 

We look forward to seeing you online for the webinar on October 25.