Mcle Self-study: a New Year Brings New Laws for California Employers, Employees, and Unions

• Jurisdiction: California,United States
• Author: By Michael S. Kalt and David J. Duchrow
• Publication year: 2014
• Citation: Vol. 28 No. 1

MCLE Self-Study: A New Year Brings New Laws for California Employers, Employees, and Unions

By Michael S. Kalt and David J. Duchrow

Michael S. Kalt is a partner at Wilson Turner Kosmo LLP in San Diego, and represents employers against discrimination, harassment, retaliation, and wage and hour claims. David J. Duchrow is a principal in the Law Office of David J. Duchrow in Santa Monica, and represents employees, including in union and public sector matters.

A new calendar year typically brings new employment laws to contend with and 2014 is no exception. In 2013, Governor Jerry Brown signed into law a number of employment-related bills affecting private and public sector employers. This article highlights new laws with fairly general application and unless noted, these new laws take effect January 1, 2014.

LAWS APPLICABLE TO ALL EMPLOYERS

Sexual Harassment Need Not Be Motivated by Sexual Desire (SB 292)

California's Fair Employment and Housing Act (FEHA) prohibits harassment based on certain statutorily-enumerated bases, including "sex." Government Code § 12940(j)(4)(C) previously defined "harassment because of sex" to include "sexual harassment, gender harassment, and harassment based on pregnancy, childbirth or related medical conditions." SB 292 amends this definition to specify that "sexually harassing conduct need not be motivated by sexual desire." The amendment is intended to clarify the legal standard for demonstrating sexual harassment following a recent appellate court decision which dismissed a same-sex harassment case because the plaintiff could not demonstrate his supervisor was sexually interested in him.¹

FEHA Amendment Prohibits Harassment or Discrimination Based on Military and Veteran Status (AB 556)

AB 556 is largely intended to make current state law more consistent with federal law in covering both active duty military and veterans. The amendment adds "military and veteran" status to the list of FEHA's protected classifications, meaning it will be unlawful to harass or discriminate against an individual because of that individual's military or veteran status. While California's Military and Veterans Code had previously prohibited discrimination by employers against individuals active in the military (but not veterans), this new law also prohibits labor organizations, employment agencies or apprenticeship training programs from discriminating or harassing because of military and veteran status.

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"Military and veteran status" is defined² as "a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard." The bill also specifically provides that it does not prohibit employers from identifying members of the military or veterans for purposes of awarding a veteran's preference as permitted by law.

New Protections, Including Accommodation Obligations, for Victims of Stalking, Domestic Violence, or Sexual Assault (SB 400)

Labor Code §§ 230 and 230.1 presently provide protections to victims of domestic violence and sexual assault, including prohibiting employers from taking adverse employment actions against individuals who take time off from work to address issues arising as a result of domestic violence or sexual assault. These sections also currently permit an employee who has been discriminated or retaliated against for taking such time off to file a complaint with the Division of Labor Standards Enforcement. This new law extends these provisions to a new group of employees, and includes new accommodation requirements.

First, SB 400 amends both sections to specify they also apply to victims of stalking, meaning employers cannot discriminate or retaliate against employees because of their known status as victims of domestic violence, sexual assault or stalking. This new law specifies that the discrimination must be knowing, either because the victim provides notice to the employer of such status or the employer has actual knowledge of it.

Second, the new law requires the employer to engage in a good faith interactive process to identify potential reasonable accommodations for stalking, domestic violence, or sexual assault victims. Employees seeking accommodation will, at the employer's request, be required to submit a written statement signed by the employee or an agent certifying the accommodation is related to domestic violence, sexual assault or stalking. The law specifies an employer is not required to provide a reasonable accommodation to an employee who has not disclosed his or her status as a victim of domestic violence, sexual assault, or stalking.

Third, SB 400 requires employers to provide reasonable accommodations, which may include implementing safety measures such as a transfer, reassignment or modified schedule, a changed work telephone or work station, installation of a lock, or assistance in documenting the employee's status. An employee is required to notify an employer if a new accommodation is needed because of changed circumstances, or if the employee no longer needs an accommodation.

As in the disability context, employers will not be required to implement an accommodation that constitutes an "undue hardship," which would include an accommodation that violates an employer's duty to furnish and maintain a safe and healthful workplace for all employees as required under Cal. Lab. Code § 6400.

The bill originally created a private right of action for violations of Cal. Lab. Code §§ 230 and 230.1, in addition to the current right to file a charge with the DLSE, but this provision was omitted by amendment. Employees who are discriminated or retaliated against because of their status as victims of domestic violence, sexual assault or stalking, or for requesting reasonable accommodation, shall be entitled to reinstatement, reimbursement for lost wages and benefits, "as well as appropriate equitable relief." (This entitlement to "appropriate equitable relief" is not available to employees who file a DLSE charge of discrimination for taking time off work for jury duty or judicial proceedings related to a crime.)

Finally, SB 400 makes several minor changes to Cal. Lab. Code § 230(d)(1), which identifies the type of certification an employee may provide to justify an unscheduled absence within a reasonable time after the absence. Specifically, this new law tightens the list of professionals able to provide a certification justifying an unscheduled absence and requires that the certification be provided by a "licensed" medical professional or by a "domestic violence counselor" or a "sexual assault counselor," satisfying the definitions in Cal. Evid. Code §§ 1037.1 and 1035.2 respectively.

Employees Permitted To Take Time Off for Judicial Proceedings Related to Additional Serious Crimes (SB 288)

Labor Code § 230 precludes employers from discharging or discriminating against employees who take time off to serve on a jury, who are victims of a crime and must attend court proceedings, or who need time off for court-related proceedings concerning domestic violence and sexual assault.

SB 288 adds Cal. Lab. Code § 230.5, to provide similar protections to employees who take time off at the victim's request to appear in court proceedings for additional specified offenses: (1) vehicular manslaughter while intoxicated; (2) felony child abuse likely to produce great bodily harm or death; (3) assault resulting in the death of a child under eight years of age; (4) felony domestic violence; (5) felony physical abuse of an elder or dependent adult; (6) felony stalking; (7) solicitation for murder; (8) a serious felony, such as kidnapping, rape or assault; (9) hit and run causing injury or death; or (10) felony driving under the influence, causing injury.

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For purposes of this section, a "proceeding" includes any delinquency proceeding, as well as one involving a post-arrest release decision, plea, sentencing, post-conviction release decision, or any proceeding in which a right of the victim is at issue. This section also defines "victim" as any person who suffers direct or threatened physical, psychological, or financial harm as a result of the enumerated crime or delinquent act. The term "victim" specifically includes the employee's spouse, parent, child, sibling, or guardian.

This new section also incorporates many of the requirements from Cal. Lab. Code § 230 (relating to time off for jury duty or domestic violence/sexual assault), including its notice requirements and remedy provisions.

Expanded Time Off for Training for Firefighters, Reserve Peace Officers, and Emergency Rescue Personnel (AB 11)

AB 11 corrects a slight discrepancy between Cal. Lab. Code §§ 230.3 and 230.4 regarding time off for reserve emergency personnel for training purposes.

Previously, § 230.3 protected reserve firefighters, peace officers, and emergency rescue personnel who took time off for emergency duty, but § 230.4 only entitled reserve firefighters to job-protected leave for firefighting training. This law amends Cal. Lab. Code § 230.4 to require employers with fifty or more employees to permit employees who perform emergency duty as volunteer firefighters, reserve peace officers, or emergency rescue personnel, as defined, to take up to fourteen days of job-protected leave per calendar year for the purpose of engaging in fire, law enforcement, or emergency rescue training.

Expansion of "Paid Family Leave" Benefits (SB 770)

Since 2004, California has provided up to six weeks of wage-replacement benefits to workers who take time off work to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a minor child within one year of the birth or adoption of the child.³ While often referred to as "paid family leave," this program is funded by worker contributions to the Unemployment Compensation Disability Fund and essentially provides "wage replacement" benefits during an already-provided leave.

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