Now that the calendar has turned to 2016, this is a good time for employers in California to ensure that they are up to speed on the new laws that took effect on January 1. Here are some of the highlights.
SB 358 (Gender Wage Differential)
Existing law already prohibits employers from paying women less than men in the same establishment for work that requires equal skill, effort, and responsibility and is performed under similar working conditions. SB 358 has amended the existing law to make it easier for an employee to prove a violation. The new law permits an employee to bring an unequal pay claim based on employee wage rates in any of the employer’s facilities (not just in the same establishment) and in other job categories as long as the work is substantially similar (not equal).
Furthermore, the employer now has the burden of proof to show that there are bona fide factors responsible for any wage difference, such as a seniority system, a merit system, or a system that measures earnings by quantity or quality of production. The employer must also demonstrate that each factor relied upon is applied reasonably, and that the one or more factors relied upon account for the entire differential in pay.
Employers are not permitted to prohibit employees from disclosing their wages, discussing their wages or the wages of others, or inquiring about another employee’s wages. Such prohibitions are already considered an unfair labor practice under the National Labor Relations Act, but SB 358 provides employees with a new remedy and cause of action.
In addition, SB 358 requires employers to maintain records of employees’ wages and rates of pay, job classifications, and other terms and conditions of employment for a three-year period.
AB 304 (Paid Sick Leave: Clarification)
This law clarifies some of the more ambiguous provisions of California’s new paid sick leave law, the Healthy Workplaces, Healthy Families Act of 2014. The Act provides, among other things, that an employee who “works in California” for 30 or more days within a year from the commencement of employment is entitled to paid sick leave. AB 304 clarifies that the employee must perform that work for the same employer in order to qualify for paid sick leave. AB 304 also allows employers to use accrual methods that are not based on the number of hours worked, explains how to calculate the rate of pay for paid sick time for nonexempt and exempt employees, and provides guidance for employers that have existing sick leave and paid time off policies (including policies that provide unlimited sick leave or paid time off).
AB 622 (E-Verify)
This law has expanded the definition of an “unlawful employment practice” to prohibit an employer from using the E-Verify system, at a time or in a manner not required by federal law or not authorized by a federal agency memorandum of understanding, to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment. There is a civil penalty of up to $10,000 for each violation of this new law.
AB 970 (Labor Commissioner: Expanded Enforcement Authority)
An increasing number of cities and counties in California have adopted ordinances requiring the payment of a minimum wage that is higher than the state minimum wage. Under current law, the Labor Commissioner is authorized to investigate and enforce payment of wages under state law. AB 970 authorizes the Labor Commissioner to investigate and enforce local laws regarding overtime hours or minimum wage provisions and to issue citations and penalties for violations. AB 970 also authorizes the Labor Commissioner to issue a citation and impose penalties on employers who fail to reimburse employees for expenses necessarily incurred in the discharge of their duties.
AB 1506 (Labor Code: Private Attorneys General Act)
The Private Attorneys General Act has been amended to provide employers with a limited opportunity to cure certain violations of the California wage statement requirements. The scope of the law is very narrow – it only allows an opportunity to cure violations relating to the inclusive dates of the pay period and the name and address of the legal entity that is the employer.
AB 1509 (Retaliation Against Employee for Complaint by Family Member)
Current law prohibits an employer from discharging, discriminating against, or retaliating against an employee or applicant because the employee or applicant has engaged in protected conduct. AB 1509 extends the protections of these provisions to an employee who is a family member of a person who engaged in, or was perceived to engage in, protected conduct or who made a complaint protected by these provisions.
SB 579 (Leave for School Activities)
Under current law, employers of 25 or more employees working at the same location must allow a parent, grandparent, or guardian to take up to 40 hours per year of unpaid time off to participate in activities at a child’s elementary, middle, or high school or licensed child daycare facility. SB 579 expands this requirement to grant an employee time off from work to find, enroll, or re-enroll a child in a school or with a licensed child daycare provider, and to address a child care provider or school emergency.
AB 1513 (Piece-Rate Workers)
AB 1513 provides that employees who are paid on a piece-rate basis must be separately compensated for rest and recovery breaks. These breaks must be paid at an hourly rate of the greater of either (1) the applicable minimum wage, or (2) the employee’s average hourly wage for all time worked, exclusive of break time, during the work week. AB 1513 also requires employers to separately compensate employees for “other non-productive time,” which is defined as “time under the employer’s control, exclusive of rest and recovery periods, that is directly related to the activity being compensated on a piece-rate basis.” This “other non-productive time” must be compensated at the rate of no less than minimum wage. The new law also provides that wage statements of piece-rate employees must state (1) the total number of hours of compensable rest and recovery periods, the rate of compensation for those rest and recovery periods, and the gross wages paid for those periods during the pay period, and (2) the total number of hours of other non-productive time, the rate of compensation for that non-productive time, and the gross wages paid for that time during the pay period. The law provides a safe harbor for certain employers to correct a failure to pay for rest and recovery periods and other non-productive time by December 15, 2016.
AB 219 (Prevailing Wages for Concrete Delivery on Public Projects)
AB 219 expands the definition of “public works” for purposes of California prevailing wage law to include the hauling or delivery of ready-mixed concrete for a public works project. This greatly expands the scope of public works projects, as ready-mixed concrete was previously considered to be a finished product, and thus employees delivering ready-mixed concrete were treated as suppliers, rather than contractors. Concrete delivery suppliers who enter into contracts with any state agency or political subdivision of the state must now pay prevailing wage rates.
AB 852 (Prevailing Wages for Certain Hospital Construction)
AB 852 expands the meaning of “public works” to include any construction, alteration, demolition, installation, or repair work done, under a private contract, with a general acute care hospital when the project is paid, in whole or in part, with proceeds of conduit revenue bonds issued on or after January 1, 2016. Prevailing wage rates must now be paid to workers on such projects.
SB 560 (CSLB Enforcement of Workers’ Compensation Coverage Requirements)
Under SB 560, the Contractors State License Board is now authorized to enforce the requirement that licensed contractors carry valid and current workers’ compensation insurance. This expands the authority of the CSLB, which did not previously have the authority to enforce this requirement.
SB 588 (Penalties for Non-Payment of Wages)
Under SB 588, the Labor Commissioner can file a lien or levy on an employer’s property in order to assist an employee in collecting unpaid wages when the employee has obtained a judgment against the employer. SB 588 also requires an employer with an unpaid wage judgment against it to obtain a bond in an amount up to $150,000, based on the amount of the unpaid judgment. If the employer fails to obtain a wage bond, the employer can be subject to a stop work order. Additionally, SB 588 provides the potential for individual liability against business owners and certain managers for unpaid wages owed to employees.