MoFo says [pdf]:
The 2009 legislative sessions in both Sacramento and Washington, D.C. have yielded significant developments for labor and employment law.
Both? I would say, on the contrary, the 2009 legislative session in Sacramento was probably the least eventful of the decade in developments “for” labor and employment law.
The last two bills we were tracking were vetoed today.
AB 335 is awaiting action by the governor.
AB 527 is awaiting action by the governor.
The rest are dead for this year, and the Governor is saying he’s going to veto everything anyway. My guess is that we won’t need to write any “new law” updates come 2010 other than the ongoing look at the courts.
Shocker, I know.
No movement in the last little while on any bills that I’m tracking for changes to California employment law. Most of them are alive in name only.
The Legislature has, understandably, been spending a lot of time rejecting almost every spending bill. Details here in the Bee. SB 810 (universal healthcare) was shot down as well. Employers will still be stuck administering health plans.
AB 227 appears to have stalled.
AB 335 has passed the assembly.
AB 527 was more or less defanged and went on to the Senate.
AB 842 was suspended in committee. Toast.
AB 1000 was suspended in committee. Toast.
AB 1001 was suspended in committee. Fried.
One upside of the continued budget woes, is that it looks like the Legislature will be only very minimally tinkering with employment laws this year.
The following is a selection of bills in the California related to employment law. It is not an exhaustive list. Links to bills I am tracking are included. Those links will break in 2010 and I may or may not correct them.
SB 187 – More flexible alternative workweeks. Similar to AB 141. Dead in committee, 2-4 noes.
SB 287 – Extends rest periods and meal breaks. cmte hearing cancelled.
SB 380 – Mean period changes. dead in cmte.
SB 404 – Technical changes to pay stub rules. Dead in cmte.
SB 807 - More flexible meal periods and reduction in penalties. Reverses Murphy v. Kenneth Cole. In l&i cmte, further hearing pending.
AB 141 – More flexible alternative workweeks. In committee, no hearing scheduled.
AB 227 – Consulting unit of DLSE. In committee, further hearing pending.
AB 236 – Extends car wash oversight program. Passed l&e committee Ayes 6-1, rerefered to appropriations cmte.
The following bills were introduced after the budget stalemate:
AB 335 – Identical to AB 1043 that was vetoed last session, this bill would make employment contracts requiring employees to waive application of California law or agree to a non-California forum. Labor & Employment Committee Ayes 5-2, Judiciary Ayes 7-3. Floor vote pending.
AB 514 – Required break to express milk. Passed l&e 5-2, to appr.
AB 527 - if the Labor Commissioner finds that payroll records submitted for any pay period relating to any claim or complaint brought pursuant to the commissioner’s authority have been
intentionally falsified, all payroll records relating to that claim or complaint must be presumed false and disregarded. not moving in l&i cmte.
AB 793 – Baby Ledbetter Act. Jud. Cmte. Ayes 7-3, to floor vote.
AB 842 – Extends CalWARN to 90 days, etc. l&e pass 4-2, to appr.
AB 849 - Expands CFRA to cover leaves for adult children, siblings, grandparents, grandchildren, domestic parters, and parent-in-law. Passed l&e 5-2, referred to appr.
AB 943 – Ban on credit use in hiring. Passed l&e cmte Ayes 5-2, Judiciary 7-3, re-referred to appr. cmte. Hearing pending.
Ab 946 – Temp pay rules don’t apply to temp employee assigned over 91 days consecutively. No hearing in l&e
AB 1000 – Reintro of AB 2716. Paid sick leave. Passed l&e 7-3, to appr.
AB 1001 – Would add “familial status” to protected classes. Passed l&e 5-2, passed jud 7-3, to appropriations.
AB 1421 – Would extend compensible time to include voluntary use of employer parking shuttles, extending Morillon v. Royal Packing Co. Passed l&e 5-2, ref’d to appr.
AB 1562 – Can’t terminate employees for five or fewer simultaneous garnishments. Passed l&e, ref’d to appr.
Budget passed. Back to regular work? We’ll see.
Here are some employment-related bills. (Look for updates, this is a preliminary list.)
AB 141 – Individual alternative work weeks.
AB 227 – Would add an advice hotline at the DIR and provide some measure of safe harbor.
Ab 236 – Make permanent car wash regulatory program.1
ABx2 5 (passed) – Week-to-week changes in schedule
There are a number of prevailing wage and workers’ comp bills beyond the scope here. I think it goes without saying, but, just in case: there will be more.
I’ve been dedicating the time I usually spend on blogging following the budget mess. Since no other legislation is gonna move until this is done, it’s not like I’m missing anything.
None of the bills we were tracking were signed into law, except SB 940. (See my original list, here.) Of the bills opposed by the California Chamber of Commerce, only AB 2075 was signed into law. For that reason, we’ll take an in depth look at it below.
An attempt was made to reverse the Ragingwire decision (AB 2279), and including marijuana use within the protections of the FEHA. The Legislature failed—again—to address the rest/meal period issue. There were a number of bills introduced attempting to grapple with the changing realities of the workplace relating to the use of independent contracts. (SB 940, which is law, was one of those.)
SB 940 …
This bill requires that temporary services employers, with certain exceptions, pay their employees weekly, regardless of when the assignment ends, unless the employee is discharged, quits, is assigned to work for a client on a day-to-day basis, or if the employee is assigned to work for a client engaged in a labor dispute.
This law was supposed to do just that, and clarify the procedure created by Smith v. L’Oreal. Now take a look at the law. Very long and complicated for such a task. Let’s thank the Legislature and the Governor for continuing to ensure full employment for labor lawyers.
The question remains, as pointed out here, is this: does this clean up when a temp agency stops being an employer for FEHA purposes as well? Hopefully this law does clarify as stated.
AB 2075 which was a rare bird, signed by the Governor over the Calchamber’s objection, amplifies the penalties in place for “forcing” employees to sign a false time sheet as a condition of a release.
This year, I have developed a theme that what should be important to employers is clarity first, leniency, when reasonable, second.
Given the economic circumstances that may not have been apparent to everybody when this session started (unless they had an investment account at Bear Stearns and a checking account at IndyMac), I think it is doubly the case. It would not have been unjustified for the Legislature and the Governor to refuse making any major changes to the labor laws at this time. Because the two bills reviewed above do purport only to clarify or slightly amplify existing law, that goal seems to have been in mind.
It’s also worth pointing out that there are literally hundreds of bills introduced each year that reflect everything from issues of global importance, to trivial “pet” projects, like whether or not someone can have a dog in their lap. Even if that were not the case, our Legislature melodramatically and predictably wastes most of its session on the budget, which means even important bills come second.
For some issues, this lack of time may be damaging. For labor law in this state, it is probably a good thing, because it continues to let things settle down and clarify for a while. Again, I think given the economic circumstances that is best.
However, at some point, the Legislature is going to have to catch up with the 21st century workplace. That means tackling the meal/rest period question, the independent contractor issues, all in a fair a modern manner. I would also hope that both sides could get behind some form of “exempt/non-exempt” clarification. A pragmatic trade might be to keep or slightly tighten existing law as labor’s consideration for more safe harbor rules for management.
None of the usual suspects in the Legislature, or their offices, would give me anything about what they might introduce next year. Given that most are out running for office, or are otherwise involved in campaigns, and that the last session just ended (for the most part), it’s understandable.
There were other laws I could address, but I won’t be reduced to explaining how the text messaging ban affects employers. It may; but I don’t think it affects how we as practitioners do employment law.
As always, I appreciate any feedback you may wish to leave.
From the Sacramento Bee:
Six months after the decision was made, Darrell Steinberg – a former labor lawyer and unabashed liberal – was formally elected Senate president pro tem Thursday in a unanimous voice vote by his colleagues.
Steinberg is not on the Senate’s Labor and Industrial Relations Committee and none of his Legislation this session is primarily related to labor and employment. So, it’s hard to say, what, if any effect this will have on the labor law pipeline.
If I had to guess, I’d say that Steinberg goes to the mat on more employment bills than Perata did, but we still won’t see major changes until after 2010.
SB 1244 (retaliation) is stalled in a Senate Committee.
SB 1539 has been neutered to simply express the Legislature’s intent to address meal and rest periods, and is in procedural limbo.
SB 1583 (independent contractors) has passed the Senate and is in Assembly Committee. This is the “don’t advise people to do sham independent contractor arrangements” bill. It has been modified to exclude legal advice given by lawyers in most circumstances.
AB 2134 (conforming state and federal leaves) has been passed by the Assembly and is in Senate Committee. This might have a chance of signature.
AB 2279 (overruling Ragingwire) passed the Assembly and is in the Senate Commitee.
As noted, AB 2716 (paid sick leave) has passed the Assembly and is in Senate Commitee.
AB 2879 (audits) passed Assembly and is in Senate Committee.
AB 2819 (credit reports for employment) passed Assembly and is in Senate Committee.
AB 2716, requiring paid sick leave, has passed the state Assembly. It goes to the Senate, but I would assume this one gets vetoed. The California Chamber of Commerce opposes this measure, and the Governor has vetoed almost every bill they have opposed.
The City & County of San Fransisco has enacted a similar ordinance.
The Sac Bee has more.
This week, the Legislature moved on all but one of the bills we’re tracking. SB 1192 appears dead. SB 1539 and 1583 passed their senate committe votes. AB 2134, 2279, 2716, and 2879 passed assembly committees. For a list of what these relate to go here.
SB 1192 was intended to reverse Murphy. Didn’t seem likely in the first place.
P.S. Yay! My tag links have been fixed!
I’m replacing high-bandwidth, low-usage podcasts with posts. Here’s the first one.
• Last week, we took a look at the Metters case: another arbitration agreement is thrown out by the courts. A number of BigLaw summaries of this case advised clients to review their arbitration agreements and the procedures related to getting them agreed to. I disagree. Even before these recent cases, it was apparent that arbitration agreements were getting rocked by the courts. What it’s time for is an in depth study of the actual cost savings, forum by forum, versus the risks and the opposing costs (including recurrent legal fees keeping the agreements and procedures up to date). If someone would publish that, I wouldn’t be surprised to see that, as often as not, it’s of little or no benefit to the employer.
• The Legislature has introduced bills to overturn a couple of last session’s big cases. AB 2279 would overturn Ragingwire (FEHA does not protect medical marijuana usage). SB 1192 would reverse Murphy (missed meal and rest period payments are not penalties). You all are aware of my mixed prognostication record, but I would predict SB 1992 dies in commitee and AB 2279 dies on the Governor’s desk. I wouldn’t be surprised if the latter ended up as a ballot initiative.
SB 674 (Dutton) – Incentives for employers who provide health care and other benefits.
SB 737 (Caleron) – Legislature’s intent to clarify meal and rest period law.
SB 940 (Yee) – Temporoary employees must be paid more frequently.
SB 953 (Wyland) – Ministerial changes to alternative workweeks.
SB 1192 (Margett) – Would reverse Murphy. Wage premiums are penalties.
SB 1244 (Alquist) – No retaliation if a family member or co-worker files a wage claim.
SB 1283 (Harman) – Some leniency in final paychecks for outside accounting departments.
SB 1489 (Kuehl) – Ministerial changes to leave laws.
SB 1490 (Padilla) – Independent contractors may request a determination from the EDD regarding their status when hired.
SB 1539 (Calderon) – Interpretation of IWC orders re: meal periods mandatory after 5 hours.
SB 1583 (Corbett) – Advising someone to hire independent contractors makes you jointly liable for the remedies against the principal.
AB 1989 (Swanson) – Expands WARN act to include offshoring.
AB 2075 (Fuentes) – Off-the-clock hours would be equivalent to signing flase wage release.
AB 2134 (Swanson) – Would conform state and federal family leave.
AB 2279 (Leno) – Reverses Ragingwire: no discrimination based on medical marijuana usage.
AB 2421 (Huff) – Investigation and prosecution of complaints of employment of unauthorized workers.
AB 2530 (Duvall) – Would exclude certain transportation employees from meal period orders.
AB 2716 (Ma) – Paid sick leave for everyone.
AB 2719 (Jeffries) – Would exclude employees investigating workers compensation fraud from meal period orders.
AB 2874 (Lieber) – Removes penalty limits for violations of CRA2005.
AB 2879 (Leno) – Labor Commissioner audit triggers.
AB 2888 (La Malfa) – Sex offenders cannot work in certain fields with minors, fines related thereto.
AB 2918 (Lieber) – Would restrict usage of credit information as a condition of employment.
From the San Jose Mercury News:
Ma’s bill, AB 2716, would extend paid sick leave to any employee who works for seven or more days each year. Employees would “earn” sick time at the rate of one hour for every 30 hours worked. Sick time would carry over from year to year, but medium-to-large employers could limit annual paid sick days to nine days, small employers to five days.
Sick leave also could be used to care for a sick family member or to recover from domestic violence or sexual assault. Employers who flout the law could face fines of up to $250 per incident.
I hope the committee investigates whether this plan has worked in San Francisco.
Here is a short list of the meager changes made by this year’s session. The hourly programmer exemption dropped to $36 per hour from $42 $41 by SB 929. Pharmacists can use the alternative work-week provisions of Wage Order 4 instead of 7 by SB 812. Employers who are found to be illegally without workers’ compensation insurance can get their business name listed on the Internet by SB 869. There were a few tweaks to workers’ compensation, including a study of workers’ comp insurer insolvency by SB 316, AB 338 AB 1073, and AB 1269. Ab 392 allows for 10 days of unpaid leave to qualified military spouses.
The LA Times has this article:
In recent years, the chamber has focused much of its lobbying firepower on an annual list of “job killer” bills. This year, Schwarzenegger complied with 12 out of 12 chamber requests for vetoes on those bills. In 2006, he vetoed nine of 11 bills that the chamber listed as job killers.
“The chamber has had more success than most in getting vetoes,” said Steve Blackledge, legislative director for the California Public Interest Research Group, a consumer advocate. “They draw a bright line in the sand and say, ‘These bills have to be stopped.’ They’ve got the governor as their backstop.”
That’s not 100% accurate. He did not veto AB 338, which was on their list of 12 (though it was amended to their liking, but he didn’t veto it.)
The SF Chronicle follows up last week’s article on leave laws with news of the vetoes.
I believe a new independent contractor misclassification bill will be introduced. SB 622 passed this year, after a last minute compromise–but remember, in 2006, it was AB 2186, and it didn’t even make it out of committee. With the U.S. Congress also taking up the issue, I believe this issue isn’t going away.
This is far from a bold prediction, but I am sure we will see a number of workers’ compensation bills aimed at increasing benefits. I wouldn’t be surprised to see a strong push behind a San Francisco-style paid sick leave initiative as well.
Michael Fox believes that “familial status” discrimination, and “familial status” as a potential protected class will be back. We often lead on those issues here in California. (Thanks for the kind mention, too, Michael.)
Why should next year be any different? It’s a presidential election year, and a big one. Each party will do what it can to eliminate motivating issues for the other. California probably isn’t realistically in play, but some Congressional districts are. At this point, I just can’t say which direction that will move these issues. However, I think we will see more laws enacted next year in that environment than we did this year, where the entire session was overshadowed by a budget showdown, and the extraordinary sessions on health care and water.
I hope to have my new software up and running by the time legislators can start placing bills in the hopper, too.
This week we’re wrapping up this year’s legislative session, and touching on the Brinker opinion.
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