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Sneak Peak of Kasper & Frank LLP's Upcoming 2016 Employment Law Update

This Workplace Newsflash provides a sneak peak of Kasper & Frank LLP’s upcoming 2016 Employment Law Update with a brief summary of some of the bills Governor Brown recently signed that will largely take effect on January 1, 2016. For additional information about these and other laws that will affect California employers in 2016, we encourage you to attend our 2016 Employment Law Update on December 3, 2015 from 9 a.m. to 12 p.m. To register for the event, click here. You can also contact Lisa Frank or Brenda Kasper anytime.

Senate Bill 358 – California Fair Pay Act

California Labor Code section 1197.5 currently prohibits employers from paying employees of one sex lower wages than employees of the opposite sex if they work in the same establishment and perform equal work, subject to certain defenses. SB 358—which is touted by many as the toughest equal pay law in the nation—amends Section 1197.5 to require that men and women be paid the same wages for substantially similar work, based on skill, effort and responsibility, and performed under similar working conditions, unless an employer can prove that the wage differential is based on a seniority system, a merit system, a system that measures earnings by quantity or quality of production, and/or a bona fide factor other than sex, such as education, training or experience. The “bona fide factor other than sex” defense will only apply if an employer can prove that it is not based on a sex-based differential and is consistent with business necessity, meaning an “overriding legitimate business purpose.” Additionally, the defense will not apply if an alternative wage practice exists that would have served the same purpose without creating a wage differential. For any of the defenses to apply, an employer must establish that each factor relied upon is applied reasonably and that the one or more factors relied upon accounts for the entire wage differential.

Under the new law, employers will be required to maintain records of wages, wage rates, job classifications and other terms and conditions of employment for at least three years.

Employees may file a complaint alleging violation of this law with the Division of Labor Standards Enforcement or in court. Damages include the balance of wages an employee should have been paid, interest on that amount, an equal amount as liquidated damages, as well as attorneys’ fees and costs.

The law prohibits employers from discharging, discriminating or retaliating against any employee who takes action to invoke the law. In addition, employers cannot prohibit employees from discussing their wages, inquiring about another’s wages or aiding or encouraging other employees to exercise their rights under the law.

Senate Bill 579 – Expanded Leave Entitlement and Kin Care

Labor Code section 230.8 currently requires employers with over 25 employees at the same location to provide up to 40 hours of unpaid time off each year (not to exceed eight hours per calendar month) to an employee who is a parent, guardian, or grandparent having custody of a child in a licensed day care facility, kindergarten or grades 1-12 for the purpose of participating in school activities. Senate Bill 579 expands this time off entitlement. Specifically, under this bill, time off may be taken to

  • Find, enroll or reenroll a child in a school or with a licensed child care provider (which is more broad than the former “licensed day care facility”), or to participate in activities of the school or licensed child care provider, as long as the employee provides reasonable notice of the planned absence; or

  • To address a “child care provider or school emergency,” if the employee gives notice to the employer. A “child care provider or school emergency” means that an employee’s child cannot remain in a school or with the day care provider due to: (1) The school or child care provider has requested that the child be picked up, or has an attendance policy, excluding planned holidays, that prohibits the child from attending or requires to be picked up; (2) behavioral or discipline problems; (3) closure or unexpected unavailability of the school or child care provider, excluding planned holidays, or (4) a natural disaster, including, but not limited to, fire, earthquake or flood.

Additionally, the new law expands the categories of people eligible to take time off to include stepparents, foster parents and persons who stand in loco parentis for a child.

Senate Bill 579 also expands California’s “kin care” obligations contained in Labor Code section 233. Currently, Labor Code section 233 provides that if an employer provides sick leave to employees, it must permit an employee to use at least half of their accrued sick time to care for a child, parent, spouse or domestic partner. Additionally, the section defines “sick leave” as leave provided for specified reasons such as illness, injury or a medical condition. Following passage of the Healthy Workplaces, Healthy Families Act of 2014 (“California Sick Pay Law”), this bill expands the definition of family members and sick leave to match those provided in the California Sick Pay Law. Specifically, the law amends Labor Code section 233 to cover care for grandparents, grandchildren, and siblings as well as absences related to domestic violence, sexual assault and stalking.

Assembly Bill 1506 – Right to Cure Wage Statements under the Private Attorneys General Act

Assembly Bill 1506, which took effect immediately as an urgency statute, amends the Private Attorneys General Act (“PAGA”) to allow employers to cure certain wage statement violations before employees can bring a civil action under PAGA. Labor Code section 226 requires employers, among other things, to provide employees with itemized wage statements containing the inclusive dates of the pay period and the name and address of the legal entity that is the employer. This bill provides an employer with 33 days to cure violations of these requirements before a lawsuit can be filed. To be considered “cured,” employers must show that they provided fully compliant wage statements to each aggrieved employee. Additionally, the bill limits an employer’s right to cure with respect to alleged violations of these provisions to once in a 12-month period.

Assembly Bill 987 – No Retaliation for Accommodation Requests

Rejecting a California case that reached a contrary result, this law provides that making an accommodation request for disability or religion under the Fair Employment and Housing Act constitutes a protected activity. Employers are thus prohibited from retaliating or discriminating against employees or applicants who make such requests, regardless of whether the request was granted.

Assembly Bill 1509 – Expansion of Labor Code Non-Retaliation Obligations to Family Members

Labor Code section 98.6 currently prohibits employers from discharging an employee or in any manner discriminating, retaliating or taking adverse action against any employee or applicant because s/he filed a claim with the Labor Commissioner or engaged in other protected conduct under the Labor Code. This bill extends these protections to an employee who is a family member of a person who engaged in, or is perceived to have engaged in, protected conduct.

Assembly Bill 622 – Restriction on Use of E-Verify

This bill prohibits employers from using the federal E-Verify system to check the employment authorization status of an existing employee or an applicant who has not been offered employment, except as required by federal law or as a condition of receiving funds. The bill does not prohibit employers from using E-Verify, in accordance with federal law, to check the employment authorization status of a person who has been offered employment.

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