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UPDATED! California lawmakers busy cooking up new employment laws

June 21, 2011

UPDATE: See below for changes since this post was first published. Each change is headlined “UPDATE,” just like this sentence is.

The Democratic-controlled California legislature appears to be making hay while the sun shines on our Democratic governor.  Many employment-related bills that were previously vetoed or shelved have been reactivated.  (Passing a balanced budget, not so much — oh well, it’s their pocketbooks.)  Here’s a quick run down on the generally applicable employment law bills pending in California.  Note — these aren’t the law yet.  Click for a link to Assembly and Senate sites if you want to do some spare-time lobbying!

Credit reports:  AB 22 would limit employers’ use of employee or applicant credit reports for most purposes.  Passed Assembly May 19, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Payroll cards:  AB 51 would permit payment of employee wages through payroll cards (prepaid debit cards) with employee consent.  Passed Assembly June 2, 2011.

UPDATE: Bill expired in Senate committee.

Expansion of CFRA leave:  AB 59 would expand California Family Rights Act (the state FMLA analog) to permit time off to care for children (regardless of age/dependency status), parents-in-law, grandparents/grandparents-in-law, siblings, grandchildren, and domestic partners.  Pending before Assembly Appropriations committee.

UPDATE: Bill expired in Assembly committee.

Liquidated damages for minimum wage violations:  AB 197 would increase the amount of liquidated damages that may be awarded to an employee paid less than the minimum wage to twice the amount of the wages unlawfully unpaid.  AB 240 would permit Labor Commissioner to award liquidated damages.  Both bills passed Assembly May 5, 2011.

UPDATE: AB 240 signed into law 9/7/2011. AB 197 withdrawn from consideration by author.

Choice of law/forum selection clauses in employment agreements:  AB 267 would void any provision in an employment contract that requires an employee to use a forum other than California, or to agree to a choice of law other than California law, to resolve any employment dispute that arises in California.  Passed Assembly May 26, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Bereavement leave:  AB 325 would provide employees up to four days’ (unpaid) bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner.  Passed Assembly May 19, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Mandatory paid sick leave:  AB 400 would require employers to provide up to 9 days of paid sick leave to California employees.  The leave could be used to care for the employee’s illness or a family member’s.  Pending before Assembly Appropriations committee.

UPDATE: Bill expired in Assembly committee.

Criminalization of Labor Code/wage order violations:  AB 469 would criminalize (misdemeanor) an employer’s violation of certain wage statutes or orders, or failure to pay a judgment or Labor Commissioner order for wages due.  Passed Assembly June 1, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Gender expression a protected class:  AB 887 would permit employees to appear or dress consistently with the employee’s gender expression (as opposed to gender identity, already a legally protected class).  Passed Assembly May 16, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

No mandatory E-Verify:  AB 1236 would prohibit California or any city or county from mandating use of federal E-Verify program, except when federal law requires its use.  California employers may use E-Verify voluntarily.  Passed Assembly May 19, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Benefits during pregnancy leave:  SB 299 would require employer to maintain health plan coverage for an employee who takes pregnancy disability leave.  Passed Senate May 31, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Misclassification of employees as independent contractors:  SB 459 would prohibit willful misclassification of individuals as independent contractors, and authorize civil penalties for violation.  Passed Senate June 2, 2011.

UPDATE: Passed by Assembly and Senate, sent to Governor for signature. Governor has until 10/9/2011 to sign, let it become law without his signature, or veto.

Discrimination based on genetic information:  SB 559 would prohibit discrimination in employment (among others) on the basis of genetic information.  Passed Senate May 19, 2011.

UPDATE: Signed into law on 9/6/2011.

Employer’s good faith defense:  SB 883 would permit an employer to raise its good faith reliance upon administrative regulations, orders, or Labor Commissioner interpretations/enforcement policies in defense of wage and hour claims.  Pending before Senate committees on Labor and Industrial Relations and Judiciary.

UPDATE: Expired in Senate committee.

Whew!  We’ll keep you posted about how these and any subsequently introduced bills progress.

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