2016 California Employment Law Updates

This year the California Legislature added numerous new employment laws, most of which become effective on January 1, 2016. Some of these laws impose new regulations on employers, while others provide positive benefits such as safe harbors and incentives to employers who reclassify independent contractors as employees. This newsletter highlights a few of the new provisions taking effect on January 1, 2016, that will more greatly affect employers.

California Fair Pay Act – S.B. 358

California Labor Code § 1197.5 was amended by Senate Bill (S.B.) 358. Labor Code § 1197.5 prohibits employers from paying employees at wage rates less than the rates paid to employees of the opposite sex for substantially similar work. The most notable amendments to this section include: (1) requiring equal pay for employees performing “substantially similar work” instead of “equal work”, (2) permitting employees to disclose their own wages, discuss the wages of other employees, inquire about another employee’s wages, or aide or encourage any other employee to exercise rights under this section, and (3) creating a new legal remedy whereby an employee may bring a civil action for reinstatement, as well as reimbursement for discrimination or retaliation, for invoking or assisting in the enforcement of this section.

Requesting Reasonable Accommodations is a Protected Activity – A.B. 987

Assembly Bill (A.B.) 987 amends the California Fair Employment Housing Act (“FEHA”) to expand protections to employees who request reasonable accommodations for disabilities or religious beliefs, regardless of whether the employer grants their accommodation request. The amendment overrules the holding in the case Rope v. Auto-Chlor Sys. of Washington, Inc. (2013) 220 Cal. App. 4th 635. That Court found that FEHA only prohibits retaliation for certain expressly stated protected activities and an employee’s request for a disability accommodation alone was not protected. However, now A.B. 987 makes a request for reasonable accommodation on the basis of religion or disability a protected activity, and it is unlawful to retaliate against employees who request reasonable accommodations regardless of whether the request is granted.

Expansion of Kin Care Leave – S.B. 579

Senate Bill (S.B.) 579 amends California’s kin care law, which is set forth in Labor Code § 233. S.B. 579 requires employers to permit an employee’s use of up to half of his/her annual accrued and available sick leave for: (1) the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee; (2) the diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee’s family member; and (3) an employee who is a victim of domestic violence, sexual assault, or stalking.

Significantly, S.B. 579 strikes the provision of the kin care law that expressly allowed employers to place conditions and restrictions on the use of employee sick leave (i.e. requiring doctor’s notes or similar certification from the employee using sick leave). The amendment also prohibits an employer from denying an employee the right to use sick leave or to discharge, threaten to discharge, demote, suspend, or in any other manner discriminate against an employee for using, or attempting to exercise the right to use, sick leave to attend to an illness or the preventive care of a family member, or for any other reason specified in [Labor Code] section 246.5(a). (Italics added to emphasize the change in the statutory language). Considering these changes, employers should review their policies and practices, paying special attention to sick leave and absence control policies.

Prohibition of Discrimination Based on Immigration Status – S.B. 600

California’s Unruh Civil Rights Act (the “Act”) entitles all persons within California to full and equal accommodations in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. Senate Bill (S.B.) 600 extends these protected categories to include citizenship, primary language, and immigration status. The amendment expressly provides that: (1) verification of immigration status and any discrimination based upon verified immigration status, where required by federal law, shall not constitute a violation of the Act, and (2) nothing in the Act shall be construed to require the provision of services or documents in a language other than English, beyond that which is otherwise required by other provisions of federal, state, or local law. This legislation is a result of complaints regarding the denial of services and/or access by business establishments based on, for example, the use of foreign language while in a business establishment or use of foreign identification to show proof of age.

Restrictions on Use of E-Verify – A.B. 622

Labor Code section 2814 was created by Assembly Bill (A.B.) 622, which provides that, except as required by federal law or as a condition of receiving federal funds, it shall be unlawful for an employer, or any person or entity, to use E-Verify to check the employment authorization status of an existing employee or an applicant who has not been offered employment at a time or in a manner not required under subsection (b) of Section 1324a of Title 8 of the United States Code, or not authorized under any federal agency memorandum of understanding governing the use of E-Verify. The statute expressly states that it does not prohibit an employer from utilizing E-Verify, in accordance with federal law, to check the employment authorization status of a person who has been offered employment. In addition to other remedies, the statute creates a civil penalty of $10,000 for each violation of its provisions.

If you have any questions or concerns regarding these matters, please do not hesitate to contact the Law Offices of Tyler Q. Dahl.

Disclaimer: This material was prepared for general informational purposes only, and is not intended to create an attorney-client relationship and does not constitute legal advice. This material should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a qualified attorney regarding any specific legal problem or matter.