The following are the new laws effective January 1, 2004, except as otherwise noted.
SB 796: Private enforcement of labor violation, aka "The Bounty Hunter Law" (Signed)
This bill, the "Labor Code Private Attorney General Act of 2004," adds Labor Code Section 2698. It gives workers the right to bring lawsuits to obtain civil fines and penalties for wage and hour violations. Previously only the California Labor Commissioner (Division of Labor Standards Enforcement) could sue for penalties. The Act also establishes new civil fines and penalties for wage and hour law violations that previously did not contain civil penalty provisions. It also allows employees who successfully obtain fines and penalties to keep 25% of the civil penalty recovered. In addition, the bill requires that the employer pay the employee's attorneys' fees and costs. Interestingly, the bill does not mention whether a prevailing employer can recover attorneys' fees and costs.
SB 1661: Paid FMLA/CFRA Leave (Signed)
Last year the Legislature passed SB 1661, which amended provisions in the Unemployment Insurance Code, to provide state disability compensation for any individual unable to work due to the illness of a child, spouse, parent or domestic partner. SB 1661 has not yet become effective and is not in the California Labor Code. This new law establishes up to "six weeks of wage replacement benefits to workers who take time off to care for a seriously ill child, spouse, parent, domestic partner, or to bond with a new child." The legislation also applies to newly placed adopted or foster children. Employee contributions to the State Disability Insurance program will fund payments under SB 1661. The law becomes effective on July 1, 2004.
SB 777: Extended whistleblower protections (Signed)
Governor Gray Davis recently signed SB 777, amending Labor Code Section 1102.5 and adding labor Code Section 1102.6, provides significant added protection for employee "whistleblowers, and creates new posting requirements for California employers concerning a state hotline to report possible violations of state or federal laws. The bill adds new provisions that preclude retaliation against an employee for refusing to participate in an activity that would violate state or federal law. This bill protects employees who refuse to perform their duties and who have a reasonable but mistaken belief that to do so would violate state or federal law. In addition, if an employee proves that an employer made an adverse employment decision based on the employee's protected conduct, the new law creates an extraordinary burden of proof on an employer requiring "clear and convincing" evidence that it would have made the same decision for legitimate, independent reasons in order to avoid liability.
AB 1715: Ban on mandatory arbitration (Vetoed)
This bill would have invalidated involuntary, employer imposed arbitration agreements requiring that employees arbitrate claims that relate to employment practices covered by the Fair Employment and Housing Act ("FEHA").
AB 2895: Discussing pay or working conditions
AB 2895 adds Labor Code Section 232.5, and makes it illegal for employers to prohibit an employee from disclosing information about working conditions, or to discharge or in any other way discriminate against employee in retaliation for having disclosed information about working conditions. This is an extension of existing law, which protects the right of employees to disclose information about wages.
AB 76: Harassment by non-employees (Signed)
This bill amends the California Fair Employment and Housing Act (FEHA), Government Code Section 12940, and provides that employers may be liable to their employees for sexual harassment by non-employees, including clients, customers or other visitors. It rejects the interpretation that the Court of Appeal gave existing law in Salazar v. Diversified Paratransit, Inc., 103 Cal. App. 4th 131 (2003), which said an employer is not liable for the harassing acts of a customer. The California Supreme Court has granted review of Salazar.
AB 196: Gender included in sexual discrimination (Signed)
This bill, amending Government Code Section 12926 of FEHA, expands the prohibition on sexual discrimination and harassment by including gender in the Code's definition of "sex" for discrimination purposes. Essentially, it will prohibit discrimination based on gender identity. Employers will only be able to require employees to comply with reasonable workplace appearance, grooming and dress standards consistent with state and federal law, if the employees are allowed to appear or dress consistenley with their gender identity.
AB 223: Employers' payment of attorney's fees (Signed)
This bill, amending Labor Code Section 98.2 (c), overturns the California Supreme Court's decision in Smith v. Rae-Venter Law Group 29 Cal. 4th 345 (2002), which held that under California Labor Code Section 98.2 (c), where an employee appeals a DLSE decision and does not obtain a more favorable result after a trial de novo, he or she would be required to pay the costs and attorneys' fees incurred by the employer. The bill will require an appealing employer to pay the costs and attorney's fees when a court awards an employee one penny or more. For example, even if a court decreases the amount of the DLSE's monetary award to the employee, as long as the employees receives anything, the employer must pay the employee's reasonable attorney's fees and costs. Further, if an appealing employee recovers anything, even if it is less the amount awarded by the Labor Commissioner, the employer will not be entitled to recover its costs and attorneys fees.
AB 276: Increase in Labor Code fines (Signed)
Increases fines of 158 different Labor Code misdemeanor violations 100 percent. The maximum amount of the fine for Labor Code violations would increase from $50 to $100, with penalties for subsequent, willful or intentional violations increasing to $200.
SB 1386: Reporting identity theft
(Became law on 7/01/03 – see Cal. Civ. Code §§ 1798.29)
This bill requires any employer that stores computerized personal information (such as Social Security numbers, account and credit card numbers, drivers licenses, etc.) to immediately provide notice if the security of that information is breached or compromised in any way. For example, if a virus or hacker gets into the computer system the employer uses to store the information or if the employer knows that an employee has taken any of the information. To comply, employers must notify in writing all affected persons in the most "expedient" timeframe possible and "without unreasonable delay." There is an exception for encrypted data.
SB 2: Health Care
Just before the recall election, Governor Gray Davis signed "Pay or Play" health care coverage legislation. Under the bill, large employers, those with more than 200 employees, effective January 2006, will be required to provide employees who work more than 100 hours per month and their dependents, with group health insurance benefits, and pay 80% of the cost of these benefits. Medium sized employer, those with between 20 and 199 employees, will have this same obligation effective January 1, 2007.
To stay abreast of the ever-changing world of labor and employment law in California, visit these helpful Internet resources:
- California bill-tracking website: www.leginfo.ca.gov.
- Also check the California Department of Industrial Relations' website: www.dir.ca.gov.
For more information on this or any employment or labor issues, please contact the following attorneys:
Debbie Fischer debra.fischer@bingham.com 213.680.6418 Deborah Freeman deborah.freeman@bingham.com 860.240.2752 Michael Loeb michael.loeb@bingham.com 415.393.2790 Tyler Paetkau tyler.paetkau@bingham.com 650.849.4810 To communicate with us regarding protection of your personal information or if you would like to subscribe or unsubscribe to some or all of Bingham McCutchen's marketing mailings, please notify our privacy administrator at privacyUS@bingham.com or privacyUK@bingham.com. Our privacy policy is available at www.bingham.com.
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