California Employment Law Notes - November 2015

NEWLY ENACTED CALIFORNIA STATUTES

Paid Sick Leave Law Is Amended

The amendments to the law include a clarification as to who is a covered worker; alternative accrual and payment methods; and a grandfather clause protecting employers that already provided paid sick leave prior to January 1, 2015 (AB 304).

E-Verify Use Is Restricted

This law expands the definition of an "unlawful employment practice" to prohibit an employer or any other person or entity from using the E-Verify system at a time or in a manner not required by a specified federal law or not authorized by a federal agency memorandum of understanding to check the employment authorization status of an existing employee or an applicant who has not received an offer of employment, except as required by federal law or as a condition of receiving federal funds. The law also requires an employer that uses the E-Verify system to provide to the affected employee any notification issued by the Social Security Administration or the United States Department of Homeland Security containing information specific to the employee's E-Verify case or any tentative nonconfirmation notice. There is a $10,000 penalty for each violation (AB 622).

Grocery Workers Protections Clarified

This law amends newly enacted AB 359 to provide that "grocery establishment" as defined in the new protections for grocery workers affected by a change in control does not include an establishment that has ceased operations for six months or more (AB 897).

Labor Commissioner's Enforcement Capabilities Expanded

This law authorizes the Labor Commissioner to investigate and enforce local overtime and minimum wage laws and to issue citations and penalties for violations, except when the local entity has already cited the employer for the same violation. The law also authorizes the Labor Commissioner to issue citations and penalties to employers that violate the expense reimbursement provisions of Labor Code Section 2802 (SB 970).

PAGA Cure Period Provided

This law, which became effective immediately, amends the Private Attorneys General Act ("PAGA") to provide an employer with the right to cure a violation of the requirement that an employer provides its employees with the inclusive dates of the pay period and the name and address of the employer before an employee may bring a civil action under PAGA. An employer can utilize this cure provision only once in a 12-month period. The law also provides a cure period to an employer that has not received notice of such a wage statement violation (AB 1506).

Retaliation Against Family Members Of Whistleblowers Prohibited

This law prohibits employers from retaliating against an employee who is a family member of an employee who has or is perceived to have engaged in protected conduct or made a protected complaint (such as whistleblowing). Additionally, the law excludes certain entities, such as certain household goods carriers, from the imposition of joint liability on client employers for all workers supplied by a labor contractor (AB 1509).

Piece-Rate Compensation Requirements Changed

This law requires employers to pay piece-rate employees for rest and recovery periods and "other nonproductive time" at or above specified minimum hourly rates, separately from any piece-rate compensation. It also defines "other nonproductive time" as time under the employer's control, exclusive of rest and recovery periods, that is not directly related to the activity being compensated on a piece-rate basis. Additionally, employers must specify the following on a piece-rate employee's itemized wage statement: the total hours of compensable rest and recovery periods, the rate of compensation paid for those periods, and the gross wages paid for those periods during the pay period (AB 1513).

Meal Period Waiver Rules For Health Care Employees Clarified

This law clarifies that special meal period waiver rules for employees in the health care industry remain in force, despite the uncertainty caused by a recent court of appeal opinion (SB 327).

Gender-Based "Fair Pay Act" Enacted

This law amends Labor Code § 1197.5 (SB 358):

Broader Prohibition of Gender Wage Differentials Enacted

Currently, Section 1197.5 prohibits an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex in the same establishment for equal work. The amendment revises this prohibition, instead prohibiting an employer from paying an employee at wage rates less than the rates paid to employees of the opposite sex for "substantially similar work." "Substantially similar work" is determined by analyzing a composite of skill, effort, and responsibility, while...