California Peculiarities Employment Law Blog | Seyfarth

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AB 2261 would have provided the Department of Labor Standards Enforcement (DLSE) with new
independent authority to, with or without an employee complaint, bring an action against an
employer that it suspects may have terminated or otherwise discriminated against an employee in
violation of any law under the jurisdiction of the Labor Commissioner. The bill would have also
entitled the employee to injunctive relief if the employer did not timely respond to the request.
Property Service Workers. However, telephone numbers will be made available to bargaining agents
for those employees.?Amends Government Code Sections 6253.2 and 6254.3.? Effective January 1,
2017.
Workplace Solutions.
Background Checks. The bill would have specified that the entire "penalty amount" was an
additional hour or pay for each day that a meal or rest or recovery period was not provided to the
employee.
Employee Contact Information. Amazon.com, Inc, et al, in which a subscriber sued for having her
age published on her profile page. The bill also would have specified that a service provider is
considered as doing business in this state and subject to California's antidiscrimination laws when
they knowingly accept payment from persons in California in exchange for posting their resumes and
professional photos online.
Friday, September 30, was Governor Jerry Brown's deadline to sign or veto bills approved during the
2015-2016 Legislative Session. SB 1063 expands the Fair Pay Act to race and ethnicity, and
responds to critics that the pay equity issue is not limited to gender.? Specifically, it would prohibit
employers from paying employees a wage less than the wage paid to employees of a different race or
ethnicity for substantially similar work. A court may award an employee reasonable attorney's fees,
among other remedies, for enforcing rights under the act. SB 654 would have significantly expanded
California's parental leave laws by requiring employers with 20 to 49 employees to provide up to six
weeks of unpaid, job-protected parental leave and paid health benefits to bond with a new child
within one year of the child's birth, adoption, or foster care placement. This bill
http://www.wordreference.com/enit/lawyer follows a 2014 lawsuit that accused TNCs of misleading
customers by suggesting their background checks were the toughest in the industry. Specifically, AB
2068 strengthens the protection for an artist's information or image to include information posted on
an online service, online application, mobile application, or website. The Governor vetoed this bill on
September 30, stating: "It goes without saying that allowing new parents to bond with a child is very
important and the state has a number of paid and unpaid benefit programs to provide for that
leave.? I am concerned, however, about the impact of this leave particularly on small businesses and
the potential liability that could result.? As I understand, an amendment was offered that would
allow an employee and employer to pursue mediation prior to a lawsuit being brought.? I believe this
is a viable option that should be explored by the author."? In other words, we likely have not seen
the last of this proposal.
Before amendments applied in the legislative process, AB 1676 would have prohibited employers
from seeking an applicant's salary history information just as its vetoed predecessor, AB 1017,
attempted to do last year. None of the bills in this year's five-bill Private Attorneys' General Act

(PAGA) reform package made it out of the Assembly. The bill was signed while janitors were fasting
outside of the Capitol.?Adds Part 4.2 (commencing with Section 1420) to Division 2 of the Labor
Code.? Effective July 1, 2018.
Fair Pay Act: Prior Salary & Race/Ethnicity. This bill was stuck in the Senate committee on rules.
Age Information in Employment. The bill also increases the number of hours per week a student may
participate in job shadowing from 25 to 40 hours per semester, if the principal of the school where
the student is enrolled certifies that it is necessary for the student's participation in a career
technical education program.?Amends Education Code Section 51760.3 and 51769.? Effective
January 1, 2017. SB 1241 prohibits an employer from requiring an employee, who resides and works
in California, as a condition of employment, to agree to a provision that would either require the
employee to litigate or arbitrate employment disputes (1) outside of California or (2) under the laws
of another state. Additionally, an employer that received a written request would have had to
?comply within a specified timeframe. The bill would have also required an employer to inform each
employee of the availability, and employee's rights, to inspect and receive a copy of the injury
prevention program. While AB 1661 is specific to local agency officials, AB 1825, enacted in 2004,
established the same provisions for the workplace. The bill does specify that an employer at a health
facility can inquire into an applicant's juvenile criminal background if a juvenile court made a final
ruling or adjudication, that the applicant had committed a felony or misdemeanor relating to sex
crimes or certain controlled substances crimes within five years prior to applying for employment.
AB 2063 provides an additional option for a student, at least 14 years old, to participate in work
experience education. The Governor may temporarily suspend the scheduled overtime requirement
but only if the minimum wage increases are suspended as well. Under existing law, there are
adequate remedies available if the court finds good cause to deny public access to the voir dire
process or to specific juror information. In his August 29 veto message, the Governor stated: "The
open nature of criminal trials preserves both the defendant's right to a fair and open trial, as well as
the public's faith in the court's impartial application of the law. AB 1948 would have provided a
statutory remedy for an employer's failure to provide a meal or rest or recovery period. ?Amends
Labor Code Section 554 and adds Chapter 6 (commencing with Section 857) to Part 2 of Division 2
of the Labor Code.? Effective January 1, 2017.
Work Hours. The bill provides that any contract that violates these provisions is voidable by the
employee. Since both bills were signed by the Governor, both bills' substantive changes will become
law, though only the last-chaptered bill will be that which officially becomes law.
Itemized Wage Statements.
Seyfarth Synopsis: Employers in California: be aware and prepare for new laws increasing minimum
wages and mandating overtime pay for agricultural employees; expanding the California Fair Pay
Act to race and ethnicity and to address prior salary consideration; imposing new restrictions on
background checks and gig economy workers; and more. Adds Article 5 (commencing with Section
118600) to Chapter 2 of Part 15 of Division 104 of the Health and Safety Code.? Effective March 1,
2017.
Other Employee Protections
Voluntary Veterans Preference Policy. Specifically, this bill provides that an employer must inform
each new employee--and other employees upon request--of the rights protecting employees affected
by domestic violence in writing. SB 878 was similar attorney bar association california to AB 357,
the Fair Scheduling Act of 2015, which did not make it out of the Assembly. AB 2068 also updates

the communication and advertisement protections between talent agencies and artists by including
communication through the use of a telecommunication device, in print, on the Internet, or through
the use of a mobile or online application or other electronic communication. Adds Section 6720 to
the Labor Code.? Effective January 1, 2019.
Agricultural Workers. AB 488 allows individuals employed under a special license in a nonprofit
sheltered workshop or rehabilitation facility to bring an action under the Fair Employment and
Housing Act (FEHA) for prohibited harassment or discrimination. AB 1289 requires a transportation
network company ("TNC"; e.g., Uber) to conduct, or have a third party conduct, criminal background
checks on each participating driver. "Successor employers" are also liable for any wages and
penalties owed to the predecessor's employees. This year's bill provision states that job applicants
and employees who suffer an "unfair immigration-related practice" can file a complaint with the
DLSE for enforcement. The bill specifically provided that a person in a "position of authority"
included, but was not limited to, a stepparent, foster parent, partner of the parent, youth leader,
recreational director, athletic manager, coach, teacher, counselor, therapist, religious leader,
doctor, or employer, or employee of one of the aforementioned persons.

VETOED (i.e., "it coulda been worse")

Talent Services. SB 878 would have required employers to pay "modification pay"--defined as
compensation in addition to regular pay (the hourly rate calculated based upon 90 days prior)--if any
scheduled shift is canceled, moved, or added, and for each shift for which an employee is required
be on call but is not called into work.
Discrimination/Harassment
Independent Contractors. AB 2899 requires that any employer, before appealing a decision by the
Labor Commissioner (LC) relating to a violation of wage laws, must file a bond--in favor of the
unpaid employee--with the LC that covers the total amount of any minimum wages, liquidated
damages, and overtime compensation owed. Those bills were:
Employee Time Off. SB 878, the Reliable Scheduling Act of 2016, would have required that
restaurant, grocery, and retail employers provide non-exempt employees with a 21-day work
schedule in advance of their first shift on that work schedule.
Meal and Rest or Recovery Periods. Effective January 1, 2017, but provisions of the bill not operative
until January 1, 2018.
Examination of Jurors. Small employers will be relieved the Governor vetoed expanded unpaid
parental leave, but it will likely return in future sessions.

AB 2461 would have limited the violations an aggrieved employee was authorized to bring and
required specific procedures before suing.
AB 2462 would have provided employers with a right to cure before an employee brought a civil
action.
AB 2463 would have established a penalty cap of $1,000 for each aggrieved employee.
AB 2464 would have authorized a court to dismiss an action if the court found the aggrieved
employee suffered no appreciable physical or economic harm.
AB 2465 would have required the Labor and Workforce Development Agency to investigate alleged
violations and determine if there was a reasonable basis for a civil action.
Background Checks
Employment Heat Safety. Saving some high-profile approvals to the last day, on Friday the Governor
signed into law AB 1676 and SB 1063.? AB 1676 amends last year's Fair Pay Act, Section 1197.5 of
the Labor Code, to prohibit employers from considering prior salary as the sole justification for any
disparity in compensation. Effective January 1, 2017. Read more about existing California law on
background checks here.?Amends Labor Code Section 432.7.? Effective January 1, 2017.
Employment Arbitration Agreements Discrimination. The authors of this bill argued that despite
laws providing employees protection and encouragement to report abuse, the reality is that many
workers do not report out of fear of losing their jobs. This bill would have provided an employer a
right to cure any violation of the Labor Code before an employee could sue and would have provided
an appropriation to the Labor and Workforce Development Agency to establish new positions to
review and investigate PAGA cases.
Wage and Hour
Leaves of Absence
Human Trafficking Training. AB 2405 would have required an employer to provide an employee at
least eight hours annually of paid, job-protected, time off for an absence under the Family School
Partnership Act. AB 1661 requires local agency officials to receive two hours of training and
education on sexual harassment prevention within the first six months of taking office or
commencing employment. AB 67 would have required retail and grocery store establishments, as
well as restaurants located within them, to pay at least twice the regular rate of pay for employees
who work on Thanksgiving.

Driving Under the Influence. This bill prohibits an employer from registering or renewing its
registration if it has not fully satisfied any final judgment for unpaid wages or made appropriate tax
contributions. AB 1766 would have required that prospective jurors be referred to by either an
identification number or abbreviation during voir dire in criminal trials.
Transportation Network Companies
Industry Specific
Other
Sexual Harassment Prevention Training. The bill also provides that the total amount of the bond is to
be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the
conclusion of the proceedings.?Amends Labor Code Section 1197.1. The bill also would have
specified that granting a veteran preference, in and of itself, would not violate any local or state
equal employment opportunity law or regulation, including, but not limited to, FEHA; and would
have prohibited a veterans' preference employment policy from being established or applied for the
purpose of discriminating against an employment applicant on the basis of a protected classification.
Sexual Offenses Against Minors. The employer would have been obligated to pay overtime for any
hours worked over 10 hours per workday or 40 hours per workweek.
Minimum Wage Violation Challenges. AB 2337 expands the notice requirement employers with
twenty-five or more employees must give to employees regarding domestic violence protections. AB
1661 comes on the heels of various high-profile sexual harassment cases against elected
officials.?Adds Article 2.4.5 (commencing with Section 53237) to Chapter 2 of Part 1 of Division 2 of
Title 5 of the Government code. AB 2687 makes it unlawful for a person to drive a vehicle with a
blood alcohol level (BAC) of 0.04% or more when a passenger for hire is in the vehicle. AB 2261 was
built upon AB 970, which the Governor signed into law last year, and which we wrote about here.
Personal Vehicles. In vetoing AB 1017, Governor Brown stated that we should wait to see whether
last year's momentous Fair Pay Act, SB 358, addressed the pay equity issue before making further
changes. Also beginning on January 1, 2022, any employee who works over 12 hours per day must
be paid at a rate no less than double the regular rate of pay. AB 1732 requires all single-user toilet
facilities in any business establishment, place of accommodation, or government agency to be
identified as all-gender toilet facilities.?The bill also provides that local officials responsible for code
enforcement are to inspect for compliance. AB 488 now extends FEHA's protections to workers with
disabilities.?Amends Section 12926, and adds Section 12926.05 to, the Government Code. ?The
amendments likely made this amendment palatable to the Governor, and kept California from
matching the new Massachusetts law prohibiting Massachusetts employers from requesting the
compensation history of a prospective employee before making an offer, unless the prospective
employee has "voluntarily" disclosed that information.?Amends Labor Code Sections 1197.5 and
1199.5. AB 1317 expanded on last year's bill, AB 1506, which was signed by the Governor, that gave
employers a limited right to cure certain wage-statement violations before an aggrieved employee
could sue under PAGA.
Paid Family Leave Expansion.? AB 908, which the Governor signed on April 11, 2016, increases the
amount of benefits paid to employees on paid family leave and state disability leave from the current
level of 55 percent to either 60 or 70 percent depending on the applicant's income.? Read our report
on AB 908 here.?Affects Sections 2655, 3303, and 2655.1 of the Unemployment Insurance Code.
These situations are best addressed on a case by case basis, and I do not believe there is a

demonstrated need for a wholesale change at this time."

Single-User Restrooms. Effective January 1, 2017.

Employment Discrimination. SB 1001 is a redux of 2015's AB 1065, which was held in committee
(and which we reported on here). This bill also requires the DLSE to maintain a database of property
service employers and to develop a biennial sexual harassment and violence prevention training. AB
2879, the "Service Member Employment Protection Act," brought back the language of 2015's AB
465, which the Governor vetoed (read our summary here), but limited the application to military
service members, similar to USERRA. The bill comes as an effort to lower taxi cab and ride sharing
service driver's BAC limit--currently at 0.08%--to the BAC limit of 0.04% as required for commercial
motor vehicle drivers.?Amends Vehicle Code Sections 23152 and 23153.? Effective July 1, 2018.
Unfair Immigration-Related Practices. The Labor Commissioner is charged with developing the form
providing notice by July 1, 2017.? Employers are not required to provide notice until the Labor
Commissioner posts the form.?Amends Labor Code Section 230.1.? Effective July 1, 2017. AB 1066
?enacts the "Phase-In Overtime for Agricultural Workers Act of 2016," which requires employers to
pay agricultural workers overtime over a four-year phase-in process. Employers that employ 25 or
fewer employees will have an extra three years to comply with the phase-in and must begin paying
overtime by January 1, 2022. This bill comes as a response to a 2012 OSHA decision, upheld in 2015
by the Cal/OSHA appeals board, in which a staffing company and warehouse operator were fined for
the heat illness suffered by an employee who was working inside a metal freight contained in over
100 degree heat. AB 2068 also adds "text message" and other "electronic communication" to the list
of methods by which an artist may ask that photographs and other information about the artist be
removed from a website, online service, online application, or mobile application owned or serviced
by the talent service.?Amends Labor Code Sections 1703 and 1703.4.? Effective January 1, 2017.
BILLS THAT DIDN'T MAKE THE LEGISLATIVE CUT (i.e., "it coulda been a lot worse")
Work Experience Education. Read our in-depth report on SB 1241 here.?Adds Section 925 to the
Labor Code.? Effective January 1, 2017.
Employment Protections. ADT, ?and clarifies Labor Code section 226. The bill also prohibits a TNC
from contracting with a driver who is currently registered on the DOJ's National Sex Offender Public
Website; has been convicted of specified felonies within the past seven years; and/or has been
convicted, within the past seven years, of misdemeanor assault or battery, domestic violence, or
driving under the influence of drugs or alcohol.?Adds Section 5445.2 to the Public Utilities Code.?
Effective January 1, 2017.
Criminal History. AB 2068 updates the Talent Service Act's existing communication and contractual
protections to include new technologies, such as mobile applications. Effective January 1, 2017.
PAGA. SB 878 would have required at least seven days advance notice. We summarize below this
year's bills that did and did not receive the Governor's signature. Beginning January 1, 2019,
employers are required to pay overtime for any hours worked over 9.5 hours per day or 55 hours per
workweek. Specifically, the bill would have prohibited employers from requiring service members to
waive any Labor Code protections, including the right to file and pursue a civil action or complaint,
and would have prohibited employers from requiring service members to accept private arbitration,
as a visit their website condition of employment, unless the waiver was "knowing and voluntary and

not made as a condition of employment."

Head spinning?? We'll summarize all the new and almost-laws and give you practical tips to prepare
for them in our webinar on October 6.? Register here.? Or feel free to contact any of the authors or
your favorite Seyfarth attorney with any questions.
SIGNED
Employment Contracts--Choice of Law and Forum. This bill came as an expansion of AB 1443,
enacted in 2014, which extended FEHA's protections to unpaid interns and volunteers. The only
exception is where the employee was individually represented by a lawyer in negotiating an
employment contract. AB 1942 would have required the same training as AB 1595 but it was specific
to hotels and motels that provide lodging services.
Commercial Online Entertainment Employment Services. The provisions of this bill apply to
employers that employ at least one "covered worker" who enters into a contract, subcontract, or
franchise agreement to provide janitorial services. AB 1383 would have created the Voluntary
Veterans' Preference Employment Policy Act to authorize a private employer to establish a written
veterans' preference employment policy. SB 1167 provides that the Division of Occupational Safety
and Health (DOSH) shall propose to the Occupational Safety and Health Standards Board (Standards
Board) for review and adoption, a standard that minimizes heat-related illness and injury among
workers working in indoor places of employment by January 1, 2019. ?Effective January 1, 2017.
California Workplace Flexibility Act. AB 2535 comes on the heels of the recent federal decision,
Garnett v. SB 985, SB 368's predecessor, would have allowed employees to submit a written request
for a flexible work schedule of up to four 10-hour days per week without obligating the employer to
pay overtime for the 9th and 10th hours worked per day. AB 1843 prohibits employers from asking
an applicant for employment to disclose any information regarding juvenile convictions and seeking
or utilizing any information related to juvenile arrests, detentions, or court dispositions as a factor in
employment determination. AB 1978 creates the Property Services Workers Protection Act by
establishing various requirements for the janitorial industry, including registering annually with the
DLSE, to protect janitorial employees from wage theft and sexual harassment. AB 2895 would have
required an employer to keep at each worksite with three or more employees a complete, updated
copy of the currently required written injury prevention program and make it available for
inspection by any employee or by the Division of Occupational Safety and Health upon request. AB
1595 would have required public and private mass transportation providers (bus, train, light rail,
etc.) to provide training to recognize and report the signs of human-trafficking to employees who
were likely to interact with victims of human trafficking. AB 2843 expands an existing provision of
the California Public Records Act (CPRA) that exempts the homes addresses and home telephone
numbers of certain public employees from public disclosure to now cover all public employees,
including persons paid by the state to provide in-home support services. AB 1687 addresses age
discrimination in the entertainment industry by prohibiting a commercial online entertainment
employment service (i.e., IMDb) that enters into a contract, from publishing a subscriber's age or
date of birth in an online profile. AB 984 would have prohibited an employer from using information
obtained via websites regarding a person's age to discriminate against an employee or applicant for
employment. To meet the requirements of this bill, local agency officials, including any member of a
legislative body and any elected official of cities and counties, and special districts, must continue to
receive this training once every two years. Existing law--the California Family Rights Act--applies
only to employers with 50 or more employees, and provides for at least 12 weeks of job-protected
parental leave. Proponents of this legislation cited cases such as Hoang v. ?This bill began as AB
2757, which failed to pass the multiple choice test erstellen house of origin in June.? Undeterred,

author Assembly Member Lorena Gonzales resurrected it with the legislative "gut and amend" trick,
putting its contents into a bill formerly relating to educational employees. Additionally, this bill
extends the CPRA exemption to include the employee's personal cell phone number and birth date.
Effective January 1, 2017.. The Double Pay on Holiday Act of 2015 failed to make its way to the
Governor for the second year in a row. Read on to prepare for our October 6 webinar offering
Workplace Solutions for these pesky new Cal-peculiarities and register here.
PAGA Reform. The bill also requires that a service provider--upon request by the subscriber--remove
age information from public view in any online profile under its control.?Adds Section 1798.83.5 to
the Civil Code. This bill came on the heels of SB 579, chaptered in 2015, which expanded the
authorized reasons an employee can take job-protected time off under the Act and specified the
definition of 'family member" under California's Kin Care. AB 1727 would have established rights for
independent contractors to organize and negotiate with "hosting platforms." This bill would have
provided a right for independent contractors to engage in "group activities" in an effort to negotiate
through activities such as withholding work and boycotting or critiquing labor practices. AB 2763
defines a personal vehicle, used by a participating driver in a transportation network company, as
one that has a passenger capacity of eight persons or less, (including the driver) and is owned,
leased, or rented for a term that does not exceed 30 days, or otherwise authorized for use by the
participating driver.?Amends Public Utilities Code Section 5431.? Effective January 1, 2017.
Employee Safety. Still, these employers cannot inquire into an applicant's sealed juvenile criminal
records. Each year the hours worked triggering overtime pay will reduce, until reaching 8 hours per
day, 40 hours per week, beginning January 1, 2022. AB 2199 would have defined a two-year
sentence enhancement where a defendant who committed a sex crime against a minor held a
position of authority over the minor. SB 1001, like AB 1065, makes it an unlawful employment
practice to request more or different documents than required under federal law to verify that an
individual is not an unauthorized immigrant, or to refuse to honor documents tendered that on their
face reasonably appear to be genuine, refuse to honor documents or work authorization based on
specific status or term that accompanies the authorization to work, or to attempt to reinvestigate or
re-verify an incumbent employee's authorization to work using an unfair immigration-related
practice. This bill specifies that employers need not list the number of hours worked on wage
statements for any employee who is exempt from minimum wage and overtime requirements under
the applicable IWC Wage Order or under statutes specified in Labor Code Section 226(j).?Amends
Labor Code Section 226.? Effective January 1, 2017. The bill would have authorized an independent
contractor or a representative of independent contractors claiming a violation under this bill to bring
an action in superior court and to seek injunctive relief.
Pay Equity
DLSE Enforcement. Read our report on SB 579 here.
Double Pay on the Holiday--2016 Edition. The bill provides that a violation of these provisions can
result in a penalty of up to $10,000.?Adds Section 1019.1 to the Labor Code.? Effective January 1,
2017.
Parental Leave