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Thursday, June 13, 2019


Richard Markuson

Update on 2019 Labor and Employment Legislation: What Remains? by Chris Micheli of Aprea and Micheli Now that the house of origin deadline has passed, and we are basically at the mid-point in the California Legislative Session, we can take a look at pending legislation with particular attention to the bills that will continue along the legislative process in the second house. The focus of this article is on pending labor and employment legislation. The following are the major bills of particular interest to the California business community.

AB 5 (Gonzalez) - Independent contractors This bill would codify the decision in the Dynamex case and clarify its application. The bill would provide that the factors of the "ABC" test be applied to determine the status of a worker as an employee or independent contractor for all provisions of the Labor Code and the Unemployment Insurance Code. Status: Pending in the Senate policy committee

AB 9 (Reyes) - Statute of limitations This bill would extend the statute of limitations period to three years for complaints alleging employment discrimination. The bill would make conforming changes in provisions that grant a person allegedly aggrieved by an unlawful practice who first obtains knowledge of the facts of the alleged unlawful practice after the expiration of the limitations period. Status: Pending in the Senate policy committee

AB 35 (Kalra) - Blood lead levels This bill would require the State Department of Public Health to consider a report from a laboratory of an employee's blood lead level at or above 20 micrograms per deciliter to be injurious to the health of the employee and to report that case within five business days of receiving the report to the Division of Occupational Safety Health. Status: Pending in the Senate policy committee

AB 51 (Gonzalez) - Employment arbitration This bill would prohibit a person from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit. Status: Pending in the Senate policy committee

AB 170 (Gonzalez) - Joint employer liability This bill would require a client employer to share with a labor contractor all civil legal responsibility and civil liability for harassment for all workers supplied by that labor contractor. Status: Pending in the Senate policy committee

AB 171 (Gonzalez) - Retaliation claims The bill would prohibit an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee's status as a victim of sexual harassment, as defined by the California Fair Employment and Housing Act. Status: Pending in the Senate policy committee

AB 403 (Kalra) - Attorneys' fees in DLSE cases This bill would authorize a court to award attorney's fees to a plaintiff who brings a successful action for a violation of the law. Status: Pending in the Senate policy committee

AB 418 (Kalra) - Union representative privilege This bill would establish a privilege between a union agent, as defined, and a represented employee or represented former employee to refuse to disclose any confidential communication between the employee or former employee and the union agent made while the union agent was acting in the union agent's representative capacity. Status: Pending in the Senate policy committee

AB 520 (Kalra) - Prevailing wage This bill would provide that a public subsidy is de minimis if it is both less than $275,000 and less than two percent of the total project cost. The bill would specify that those provisions do not apply to a project that was advertised for bid, or a contract that was awarded before July 1, 2020. Status: Pending in the Senate fiscal committee

AB 547 (Gonzalez) - Janitorial workers This bill would prohibit the division from approving a registration if the employer does not include in their written application the name of any subcontractor or franchise servicing contracts affiliated with a branch location and the number of subcontracted or franchise covered workers servicing each of those contracts, the total number of covered workers working out of a listed branch office, and the address of each work location serviced by a branch office. Status: Pending in the Senate fiscal committee

AB 589 (Gonzalez) - Workers' bill of rights This bill would make it unlawful for an employer to knowingly destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person in the course of committing, or with the intent to commit, trafficking, peonage, slavery, involuntary servitude, or a coercive labor practice. Status: Pending in the Senate policy committee

AB 749 (Stone) - No-rehire provisions This bill would prohibit an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person, as defined, from working for the employer against which the aggrieved person has filed a claim or any parent company, subsidiary, division, affiliate, or contractor of the employer. Status: Pending in the Senate policy committee

AB 1066 (Gonzalez) - Unemployment insurance This bill would restore eligibility for unemployment benefits after the first four weeks of a trade dispute for an employee who left work because of the trade dispute. The bill would specify that the one-week waiting period otherwise required for unemployment benefits is not additionally required under these circumstances. Status: Pending in the Senate policy committee

AB 1360 (Ting) - Food deliveries This bill would define a food delivery platform as a business engaged in the service of online food ordering and delivery from retail food establishments to a consumer, and would require a food delivery platform and food delivery driver to ensure that food is transported during delivery in a manner that meets specified food safety requirements. Status: Pending in the Senate policy committee

AB 1478 (Carrillo) - Job protected leave This bill would authorize an employee aggrieved to bring a private civil action against the employee's employer and would not require that employee to pursue any other remedy before bringing that action. Status: Pending in the Senate policy committee

AB 1677 (Weber) - Call centers This bill would establish the Protect Call Center Jobs Act of 2019 to require an employer of customer service employees in a call center, as specified, that intends to relocate from this state to a foreign country to notify the commissioner at least 120 days before the relocation. The bill would require the Labor Commissioner to impose, in the commissioner's discretion, one of two specified penalties, including a civil penalty of up to $10,000, upon an employer that fails to provide this notice. Status: Pending in the Senate policy committee

SB 142 (Wiener) - Lactation accommodation This bill would require an employer to provide a lactation room or location that includes prescribed features and would require an employer to provide access to a sink and refrigerator close to the employee's workspace, as specified. Status: Pending in the Assembly policy committee

SB 171 (Jackson) - Pay data disclosure This bill would require, on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer that has 100 or more employees and who is required to file an annual Employer Information Report under federal law, to submit a pay data report to the Department of Fair Employment and Housing that contains specified wage information. Status: Pending in the Assembly policy committee

SB 218 (Bradford) - Local FEHA enforcement This bill would authorize the legislative body of a local government to enact anti-discrimination laws relating to employment, including establishing remedies and penalties for violations. The bill would authorize local governments to create a local agency to enforce these local anti-discrimination laws. Status: Pending in the Assembly policy committee

SB 707 (Wieckowski) - Arbitration This bill would require the court to impose a monetary sanction on the drafting party who materially breaches an arbitration agreement, and would authorize the court to impose other sanctions, as specified. If the employee or consumer compels arbitration, the bill would require the arbitrator to impose appropriate sanctions on the drafting party, including monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions. Status: Pending in the Assembly policy committee

The Legislature is scheduled to adjourn on September 13, and Governor Gavin Newsom will have 30 days to act on measures sent to him by that date. We'll check back after final actions take place on these and other measures.