Today’s post is on AB 2334 from the 2018 legislative session that concerns new employer reporting requirements for injuries and illness. Governor Jerry Brown signed Assembly Bill 2334 by State Assemblymember Tony Thurmond on September the 19th as Chapter 538. This new law went into effect on January 1, 2019.

The new law clarifies that the occurrence of a violation of an occupational safety and health order continues until that violation is corrected, that the Division of Occupational Safety and Health, DOSH, discovers the violation or the duty to comply with the requirement is no longer applicable. The bill AB 2334 amends several provisions of the Labor Code and adds two new provisions to the Labor Code.

Among other provisions, it requires DOSH to monitor rule‑making and implementation of the US Department of Labor’s Occupational Safety and Health Administration’s improved tracking of workplace injuries and illnesses rule regarding electronic submission of workplace injury and illness data.

It also requires DOSH, if it determines that the federal OSHA has eliminated or substantially diminished any federal submission requirements, to convene an advisory committee to evaluate how to implement changes necessary to protect the goals of that federal rule.

It, again, amends several Labor Code provisions to add new requirements, including a requirement that a citation or notice shall not be issued by the division more than six months after the occurrence of a violation.

Also, the new law added a statement of intent in 6410.1 of the Labor Code that DOSH should maintain a strong workplace injury and illness‑reporting standard and also the requirement that DOSH monitor rule‑making and implementation of the US Department of Labor with respect to the electronic submission of workplace injury and illness data.

It also says that individually identifying information may be used by the Office of Self‑Insurance Plans of the Department of Industrial Relations to carry out its duties.

The director may publish information regarding the cost of administration, workers’ compensation benefit, expenditures, solvency, and other information, as long as the information does not include any individually identifiable claim at information. All of this and more can be found in newly adopted AB 2334.

You can find a transcript of today’s podcast here.

 

 

 

 

 

 

 

2018’s Assembly Bill 1976 essentially mandates that California employers must provide additional lactation accommodation to their employees. Governor Jerry Brown signed Assembly Bill 1976 by Assemblymember Monique Limón on September 30th as Chapter 940.

The bill requires an employer to make reasonable efforts to provide an employee wishing to express milk in private with an area in close proximity to her workspace that is not a bathroom.

The bill went into effect on January 1, 2019 and amends Labor Code Section 1031. Now, essentially, the bill provides agricultural employers to be in compliance with these requirements if they provide the employee with a private, enclosed, and shaded space. Also, the requirement was removed that the temporary lactation accommodation space be air conditioned.

The bill also allows employers who show that providing an employee with a lactation space that is not a bathroom would constitute undue hardship to that business to provide a lactation space that is not a bathroom stall. AB 1976 requires an employer to make reasonable efforts to provide that employee with use of a room or other location other than a bathroom.

In Labor Code Section 1031A, the bill strikes “toilet stall” and replaces it with the word “bathroom.” Also, subdivision B deems an employer to be in compliance with this provision of law if all four conditions that I will specify are met.

One, the employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.

Two, the temporary lactation location is private and free from intrusion while an employee expresses milk.

Three, the temporary lactation location is used only for lactation purposes while an employee expresses milk.

Four, the temporary lactation location otherwise meets the requirements of state law.

Lastly, a note to employers. Existing law makes a violation of these provisions subject to a civil penalty and makes the Labor Commissioner responsible for enforcement. These provisions of existing law continue even after AB 1976’s additional lactation accommodation requirements.

You can find a transcript of today’s podcast here.

Governor Jerry Brown signed Assembly Bill 2282 by Assemblywoman Susan Eggman on July 18, 2018 as Chapter 127. The bill provides clarity on several provisions of existing California law that’s intended to prohibit the use of prior salary history in negotiations between employers and applicants for employment. The bill amended Labor Code Sections 432.3 and 1197.5 and went into effect on January 1, 2019.

AB 2282 defined the terms “pay scale,” “reasonable request,” and “applicant” for purposes of the existing law. AB 2282 further clarified that existing law does not prohibit an employer from asking an applicant for employment salary expectations for the position that he or she is applying for.

In addition, the new law allows an employer to make a compensation decision based upon an employee’s current salary, so long as any wage differential from the particular compensation is noted.

The bill specifies that the prohibition on asking a job applicant about prior salary does not actually forbid the employer from asking the applicant for employment about his or her salary expectations.

In terms of specific provisions, the bill also said that a “pay scale” means a salary or hourly wage range, and that a “reasonable request” means a request that’s made after the applicant has completed an initial interview with the employer. Then AB 2282 defines an “applicant” to mean an individual who is seeking employment and is not currently employed with that particular employer.

Note, too, that AB 2282 also made two important changes to California’s Equal Pay Act in both the equal pay provisions. One is based upon gender and the other on race or ethnicity.

The new law struck the requirement that salary history shall not, by itself, justify any disparity in compensation. “Prior salary shall not justify any disparity in compensation.”

This bill didn’t have any opposition and moved relatively easily through the legislative process. It was co‑sponsored by the American Association of University Women, California Employment Lawyers Association, and equal rights advocates.

AB 1565 (transcript)

Today’s post is on AB 1565 from the 2018 legislative session, which concerns a new labor‑related liability rule for direct contractors.

Governor Jerry Brown signed Assembly Bill 1565 by (then) state Assemblyman Tony Thurmond on September 19th as Chapter 528. As an urgency‑clause measure, the bill took effect on chaptering, which was September the 19th. It amends Labor Code Section 218.7 and creates a new labor‑related liability rule for direct contractors.

AB 1565 provides that for any contract entered into on or after 01/01/19, in order to withhold dispute payments, the direct contractor must specify in its contract with the subcontractor the specific documents and information that the direct contractor will require that the subcontractor must provide upon request.

Also, AB 1565 says that subcontractors may include the same requirements in their contracts with lower‑tiered subcontractors, and they, too, may withhold, as disputed, all sums owed.

The new law also declares that it must go into effect immediately due to the need to resolve the confusion created by existing language at the earliest possible time.

AB 1565 repeals the provisions that state that obligations and remedies are in addition to existing obligations and remedies provided by a law except that the provisions are not to be construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions, including interest owed.

This repeal is of Subdivision H, contained in Section 218.7 of the Labor Code.

For a more in depth discussion of Proposition 11, and the ten other initiatives on the ballot this November you can watch the forum in its entirety on YouTube or read the full analyses here. And keep your eyes peeled on The CAP⋅impact Podcast’s feed on Apple Podcasts, Stitcher Radio, or wherever you get your podcasts from for analysis of this year’s ballot initiatives in your headphones coming next week.

Proposition 11: Emergency Ambulance Employees Safety and Preparedness Act

Current Law

  • Federal law – Under the Fair Labor Standards Act of 1938, emergency employees may not receive compensation for interrupted breaks.
  • State law – Under the California Labor Code, employer-mandated on-call rest breaks are illegal.
  • CA Supreme Court – In Augustus v. ABM Security Services (2016), the California Supreme Court held that on-call breaks violate state labor law. Full compliance with the Augustus decision would potentially increase costs for ambulance providers by more than $100,000 annually.

Proposed Law

  • Allows emergency medical technicians (EMTs) and paramedics to remain on-call during breaks.
  • Requires employers to pay EMTs and paramedics at their regular rates during their breaks.
  • Requires 911 ambulance operators to maintain high staffing levels to provide coverage for breaks.
  • Requires training for certain emergency incidents related to active shooters, multiple casualties, natural disasters, and violence prevention.
  • Requires employers to provide employees mandatory mental health coverage, as well as yearly mental health and wellness training.
  • Retroactively prevents emergency employees from bringing claims pursuant to Augustus against ambulance service providers, including claims already pending.

Policy Considerations

Yes on Proposition 11 No on Proposition 11
  • Ensures 911 emergency will not be delayed because EMT’s always on-call.
  • Provides important additional training for emergency employees.
  • Increases efficacy of mental health services.
  • Negatively impacts labor union workers.
  • Excludes private sector emergency employees from labor law protections.
  • Allows ambulance companies to require workers to remain on-call during their breaks.

Analysis of Proposition 11 provided by Anupe Litt and David Witkin.

Earlier this week, The National Law Review recently published the work of McGeorge Capital Lawyering adjunct professor Chris Micheli. You can find Micheli’s aritcle – A Review of 2018 Labor and Employment Legislation in California – here.

Micheli overviews the fourteen major labor and employment bills that were signed into law, as well as seven other significant pieces of legislation that made it through the Legislature but were ultimately vetoed by Governor Brown. Many of the bills that Micheli looks at are pieces of legislation inspired by the #MeToo movement that swept the nation as well as the We Said Enough movement that started here in California’s capital.

Chris Micheli – Attorney; Adjunct Professor, McGeorge School of Law; Principal, Aprea & Micheli