This article is Part 2 of a two-part series providing an overview of new federal and California employment laws.
Retaliation and Extortion – SB 666 and AB 524
As of now, it remains illegal to knowingly employ employees who are unauthorized to work in the United States. However, it is not illegal for employees to work without authorization. To underscore the difference, AB 524 expands the crime of “extortion” to include threatening to report an employee’s actual or suspected immigration status. SB 666 prohibits employers from reporting or threatening to report an employee, former employee, or prospective employee’s suspected citizenship or immigration status, or the suspected citizenship or immigration status of a family member of that person, to an agency because the person exercised a right under the provisions of the Labor Code, Government Code, or Civil Code.
Driver’s Licenses for Undocumented Persons – AB 60
AB 60 will permit the California Department of Motor Vehicles to issue special driver’s licenses to undocumented persons. The licenses will be specially marked. These licenses will not satisfy federal requirements for determining eligibility to work in the United States. That is, these licenses should not be accepted to satisfy the Form I-9 requirements.
Stalking Victims – SB 400
SB 400 requires employers to provide “reasonable accommodations” to victims of domestic violence, sexual assault, or stalking, such as transfers, reassignments, modified schedules, or changed work numbers or work stations, unless the accommodation creates an undue hardship. Employers may require employees to provide a signed, written statement certifying that the accommodation is for the purpose of keeping the employee safe or because of his or her status as a victim. Employers also may request employees provide subsequent certifications every six months.
Time Off for Crime Victims – SB 288
SB 288 prohibits employers from discriminating or retaliating against victims of certain serious crimes for taking time off from work to appear in court or any other related proceeding. “Victim” is defined broadly, and includes the employee’s spouse, parent, child, sibling, or guardian. But a familial relationship is not mandatory. Even if the employee does not provide reasonable advance notice of the need for time off, employers may not take adverse action against the employee if the employee within a reasonable time provides adequate certification of the need for the time off. Employees may use vacation, personal leave, or compensatory time off that is otherwise available to the employee, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in this law. Employees denied time off may file a claim with the Department of Labor Standards Enforcement (DLSE).
Equal Employment Opportunity
Sexual Harassment Clarified – SB 292
This bill makes clear that “sexual harassment” under the California Fair Employment and Housing Act (FEHA) may occur even if the alleged conduct is not motivated by sexual desire. However, this bill does not change the requirement that “harassment” be based on the victim’s sex. The law merely clarifies that conduct may be unlawful harassment even if it is not overtly sexual in nature.
Military/Veteran Status a Protected Characteristic – AB 556
AB 556 expands FEHA to include military and veteran status as protected characteristics.
Job Applicants and Criminal History – SB 530 and AB 218
With limited exceptions, SB 530 expands Labor Code section 432.7 by prohibiting employers from asking job applicants to disclose information about judicially dismissed, expunged, or sealed convictions. The bill also prohibits employers from using this information in hiring decisions, regardless of how it is obtained.
Under AB 218, beginning on July 1, 2014, state and state and local public agencies cannot request any information regarding criminal convictions until after the agency has determined the applicant meets the minimum employment qualifications for the position.
Leave of Absence
Leave for Reserve Peace Officers and Emergency Rescue Personnel – AB 11
AB 11 requires employers with 50 or more employees to allow reserve peace officers, emergency rescue personnel, and volunteer firefighters up to 14 calendar days of unpaid leave per year for training. The leave should be granted purposes of participating in fire, law enforcement, or emergency rescue training.
Paid Family Leave (PFL) – SB 770
This bill expands the familial relationships currently covered by PFL to include a seriously ill grandparent, grandchild, sibling, or parent-in-law. However, the bill does not create a new leave entitlement under PFL. PFL provides for pay, not time off.
San Francisco Family-Friendly Workplace Ordinance
San Francisco’s new ordinance requires employers with 20 or more full or part-time employees working in the city to consider requests for “flexible or predictable working arrangements to assist with caregiving responsibilities” for children under the age of 18, family members with “serious health conditions,” or parents 65 years or older. Employees must have worked for the employer for more than six months before the request, and work at least eight hours per week to qualify.
Employees may make two requests per year, or more if a major life event such as child birth or adoption occurs. The requests can range from fixed schedules, to telecommuting, to set working flexible or predictable schedules. Employers must respond to each request in writing within 21 days of receipt and provide a reason specified in the ordinance for any denials. Employees may ask for reconsideration.
The ordinance protects employees from discrimination or retaliation for making a request based on his or her status as a caregiver. Employers must post a notice of the ordinance and keep records of all requests for three years. The ordinance can be waived by a collective bargaining agreement.
Tips for Employers
Employers should update their policies and procedures. It is also important to obtain new and updated posters. Employers seeking more information about new employment laws should consult with experienced employment law counsel.