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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AB 537:

To the Members of the California State Assembly:

I am returning Assembly Bill 537 without my signature.

This bill, along with two others I am returning without my signature, would significantly
expand California’s workplace leave laws. While some expansion of existing law may
have merit, these laws in combination are too expansive and also fail to recognize the
need for reforms to current law.

California has the strongest employment leave and workplace protection laws in the
country. While these laws have been enacted with the best of intentions, they have also
caused much confusion for employers and employees. Unfortunately, many California-
only standards in areas such as family leave, overtime, and meal and rest periods have
been developed haphazardly and have resulted in needless litigation that has created a
perception that California is not friendly to business.

Instead of expanding the confusing network of laws that presently exist, employers and
employees should be working together to eliminate confusion and create a system of
workplace laws that protects workers, provides reasonable leave requirements, and offers
both employers and employees flexibility to meet their respective needs.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

AB 1707:

To the Members of the California Assembly:

I am returning Assembly Bill 1707 without my signature.

This bill attempts to clarify existing law relative to employees’ access to personnel
records kept by their employer. While I support the intent of this measure, especially as
it relates to non-English speakers and others that may need help in understanding the
contents of their personnel records, this bill is too broad and exposes employers to unfair
and unnecessary liabilities. I encourage the proponents of this bill to work with the Labor
Commissioner to adopt regulations that help ensure that all employees can appropriately
avail themselves of their rights under current law.

Sincerely,

Arnold Schwarzenegger

and AB 1710:

To the Members of the California State Assembly:

I am returning Assembly Bill 1710 without my signature.

Although I support the intent of this bill to clarify the manner in which temporary service
employers must pay wages, I cannot support the provision of this bill which expands
liability regarding workers’ compensation coverage.

As written, this bill imposes joint and severe liability relative for workers’ compensation
coverage on employers that contract with staffing agencies. This would be a significant
departure from the exclusive remedy of current law, which provides that an injured
worker cannot sue their employer in civil court. Exclusive remedy is one of the most
fundamental principles of the California workers’ compensation system. I cannot support
a measure that deviates from this principle.

Sincerely,

Arnold Schwarzenegger

With a little over three hours left, the Governor has six bills left to act on.

UPDATE: The Governor vetoed SB 180 and SB 650 in his last set of bills.

SB 180:

To the Members of the California State Senate:

I am returning Senate Bill 180 without my signature.

Since I became Governor, I have made strengthening workplace protections for
agricultural workers one of my top priorities.  I have added labor law enforcement
positions, reformed farmworker housing laws, and worked to adopt the first regulations in
the nation that ensure agricultural workers have appropriate access to shade.  These added
protections are being implemented under existing law without the changes proposed by
this bill to the historic Agricultural Labor Relations Act (ALRA).  The changes this bill
would make to the ALRA are unnecessary to continue our forward progress in ensuring a
better working environment for agricultural workers.

By setting in place a “card-check” organizing process, SB 180 significantly changes the
protections afforded to all of California’s agricultural workers under the ALRA.   This
“card-check” process fundamentally alters an employee’s right to a secret ballot election
that currently affords them the opportunity to cast a ballot privately without fear of
coercion or manipulation by any interested parties.  This bill also limits the opportunity
for employees to hear and consider other viewpoints on unionization.

For these reasons, I am returning SB 180 without my signature.  However, I am directing
my Labor and Workforce Development Agency to work with the proponents of this bill
to ensure that all labor laws and regulations are being vigorously enforced, and to make it
absolutely clear to all concerned that my veto is premised on an expectation that
agricultural workers receive the full protections of the law.

Sincerely,

Arnold Schwarzenegger

SB 650:

To the Members of the California State Senate:

I am returning Senate Bill 650 without my signature.

This bill is essentially identical to SB 180, which I also vetoed.  The concerns I expressed
in vetoing that bill apply to SB 650 as well, regardless of the insertion of a sunset clause
in this measure.

For the reasons stated in my veto of SB 180, I am returning this bill without my
signature.

Sincerely,

Arnold Schwarzenegger

The Sacramento Bee wraps some of the Governor’s activity here, and the AP does the same, here.

The governor vetoed bills to expand employee leave. SB 727 by Sen. Sheila Kuehl, D-Santa Monica, would have expanded the state’s family leave program to cover employees who have to care for grandparents, grandchildren, siblings or in-laws. Senate Bill 549 by Corbett would have specified that employees have a right to four days of unpaid bereavement leave.

Schwarzenegger wrote that the state’s workplace laws have already become too confusing.

I’m still waiting for the Governor to take action on a handful of bills before I complete my final report on this session.  He has until midnight.  The podcast should cover everything, and I will also post a written report.

To the Members of the California State Senate:

I am returning Senate Bill 836 without my signature.

California has the strongest workplace laws against discrimination and harassment in the
country.  These laws provide workers necessary protections from unfair retaliation,
discipline, and termination for matters unrelated to job performance.

Although I support these laws, expanding workplace protections to include something as
ambiguous as “familial status” is not appropriate.  This bill will not only result in endless
litigation to try and define what discrimination on the basis of “familial status” means, it
will also unnecessarily restrict employers’ ability to make personnel decisions.

For these reasons, I am returning SB 836 without my signature.

Sincerely,

Arnold Schwarzenegger

To the Members of the California State Assembly:

I am returning Assembly Bill 1043 without my signature.

This bill appears to create a solution in search of a problem.  California law currently
ensures that employees can not be subjected to unconscionable contract provisions that
would force them to forego the protections of California law or litigate their claims in an
inappropriate out-of-state forum.  Moreover, this bill creates unnecessary and unhelpful
uncertainties for the employers and employees concerning issues of federal preemption.
Lastly, I strongly support the right of parties to freely contract for the terms of their
employment relationship.  This bill fundamentally conflicts with that policy.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

More to come.

To the Members of the California State Senate:

I am returning Senate Bill 549 without my signature.

This bill, along with two others I am returning without my signature, would significantly
expand California’s workplace leave laws.  While some expansion of existing law may
have merit, these laws in combination are too expansive and also fail to recognize the
need for reforms to current law.

California has the strongest employment leave and workplace protection laws in the
country.  While these laws have been enacted with the best of intentions, they have also
caused much confusion for employers and employees.  Unfortunately, many California-
only standards in areas such as family leave, overtime, and meal and rest periods have
been developed haphazardly and have resulted in needless litigation that has created a
perception that California is not friendly to business.

Instead of expanding the confusing network of laws that presently exist, employers and
employees should be working together to eliminate confusion and create a system of
workplace laws that protects workers, provides reasonable leave requirements, and offers
both employers and employees flexibility to meet their respective needs.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

More to come….

To the Members of the California State Senate:

I am returning Senate Bill 622 without my signature.

Although this bill is intended to promote the worthy goal of ensuring employees are not
intentionally misclassified as independent contractors, thus deterring employers from
conduct which may give them unfair economic advantages against their competitors, this
bill also creates new mechanisms and incentives for litigation where sufficient remedies
already exist. In creating new and redundant exposure to litigation and sanctions, this bill
may cause businesses to avoid use of the independent contractor model even where it
may be appropriately utilized. This will ultimately contribute to a negative perception of
California as an inhospitable business climate.

For these reasons, I am returning this bill without my signature.

Sincerely,

Arnold Schwarzenegger

UPDATE: I will follow up with Senator Padilla’s office to see if they intend to attempt a veto override (waste of time) or if they will introduce a new measure next year.  Remember: last year’s bill didn’t even pass the committee.

Governor Schwarzenegger has signed AB 14 into law. I will have more details soon.

Requires employers to give spouse of a returning soldier up to 10 days of unpaid leave while the spouse is on a military leave. The language says “spouse” not “spouse or domestic partner.” I’ll be curious to see if anything happens there.

Update those handbooks.

Short and sweet.

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The San Francisco Chronicle has a story about a few of the bills awaiting action by the Governor, including SB  836.

It includes SB 622. None of the others that I am tracking are listed.

Based on the Legislative Calendar, I believe the Governor has until October 14 to veto or sign the bills that were presented at the end of the session (as opposed to the 12-day rule that applies to earlier bills). I’m not 100% how or if the extraordinary sessions (there are technically 2) affect that. Leave a comment if you know for sure.
None of the listed supporters have much on this bill up on the ‘tubes. If you work for a group supporting a bill I’m tracking, please send me your materials.

The LA Times has the most comprehensive rundown of the bills passed this year in the legislature. Only two or three that are of interest to the employment bar are mentioned.

I’m heading up to the capital tomorrow on other business, but, while I’m there I will try and find out as much as I can about our potential new employment laws.

New developments on the end of the Legislature’s session.

I completed my interviews for this early, and I will be in Sacramento on business next week, so I wanted to be sure to get this up ASAP. Enjoy.

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Various papers state-wide (Sac Bee, San Jose Mercury News, San Diego Union-Tribune, OC Register) have given their postmortems on this Legislative session. None of them mention any of the many employment-related bills, and probably for good reason. With the budget impasse and the prospect of a special session to cover hot-button issues like health care and water resources, compounded with a divided government unlikely to enact many controversial bills touching on employment, this is not an unlikely result.

Nevertheless, I think it’s worth keeping an eye on some of the subtle changes to the usual suspects that would be in store for 2008 or 2009 (depending on when they get signed, if they get signed), and I’ve tried to do that here. Also, there are some interesting trend indicators, especially involving independent contractors.

Of course, any employer-based state-mandated health care system will put everything else on the back burner for now. Until we know the contours of a plan that can pass, I’ll keep focusing on these issues.

I am in the process of gathering comments from the various interests groups, bill sponsors, and the governor’s office regarding some of these bills. Stay tuned.