Most California law enacted during the legislative year takes effect on January 1. The following highlights some of the changes that take place in a few weeks in the world of employment law.
California’s minimum wage will increase to $9.00 per hour effective July 1, 2014, and further increase to $10.00 per hour effective January 1, 2016 (AB 10.) In addition to affecting hourly employees, these increases may have an impact on employees who are “exempt” from overtime, due to related increases in threshold compensation that must be paid to qualify for various exemptions. For certain state law executive, administrative and professional exemptions, the employee must be paid a salary of at least twice the state minimum wage for full-time employment. In addition, for the commissioned inside sales exemption, the employee’s earnings must exceed 1½ times the state minimum wage. Employers in the cities of San Francisco and San Jose should also note that effective January 1, 2014, San Francisco’s minimum wage will increase to $10.74 per hour and San Jose’s minimum wage will increase to $10.15 per hour.The compensation threshold for California’s computer software employee exemption increases annually, as it is tied to the Consumer Price Index. Effective January 1, 2014, the threshold compensation component to qualify for this exemption increases to $40.38 per hour, or $7,010.88 per month, or $84,130.53 per year.
In addition, due to passage of the Domestic Worker Bill of Rights Act (AB 241), domestic work employees who work as personal attendants are now eligible for overtime. This generally includes, with some exceptions, individuals who are employed to work in a private household to supervise, feed or dress a child or a person who needs supervision by reason of advanced age, physical disability or mental deficiency. They are entitled to 1½ times their regular rate of pay for work in excess of nine hours in a workday or 45 hours in a workweek.
Under existing Cal-OSHA regulations, employees who work outside in temperatures exceeding 85 degrees must be provided with five-minute cool-down periods (recovery periods) in a shaded area on an as-needed basis to protect from overheating. The Labor Code statute for meal and rest periods has been amended to include recovery periods. (SB 435.) Employers are prohibited from requiring employees to work during a recovery period, and must pay them one additional hour of pay for each workday a required recovery period is not provided.
Companion bills (AB 263, SB 666) protect undocumented workers from retaliation for pursuing employment-related claims. Employers are prohibited from reporting or threatening to report a current, former or prospective employee’s suspected immigration status, or the suspected immigration status of his or her family member, in retaliation for exercising a right related to his or her employment. Violation may result in revocation of the employer’s business license, civil penalties and/or criminal penalties. In addition, an attorney who engages in such conduct toward a witness or party to a civil or administrative action may be subject to suspension, disbarment or other discipline. These new laws further provide that an employer that retaliates against an employee or applicant for exercising rights under the Labor Code may be subject to a civil penalty of up to $10,000. The new laws also clarify that an individual is not required to exhaust administrative remedies or procedures prior to bringing a civil action under the Labor Code, unless the specific Labor Code statute under which the action is brought expressly requires exhaustion of an administrative remedy.
Existing law prohibits employers from retaliating against an employee for disclosing information to a government or law enforcement agency, if the employee has reasonable cause to believe that the information discloses a violation of a state or federal rule or regulation. This law has been expanded to also prohibit retaliation against an employee who makes an internal complaint to a supervisor or other employee with authority to investigate, discover or correct the violation. (SB 496.) The law also has been amended to cover disclosures pertaining to perceived violations of local rules or regulations.
FEHA has been amended (SB 292) to state expressly that sexually harassing conduct need not be motivated by sexual desire. The Legislature made this clarification in response to a California appellate court opinion issued in 2011, Kelley v. The Conco Companies, 196 Cal.App.4th 191.
Current law restricts employers from considering certain criminal records in making hiring or employment decisions. A new law (SB 530) prohibits an employer from asking an applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning a conviction that has been judicially dismissed or ordered sealed, unless certain limited exceptions apply.
Multiple new laws augment employment protections for crime victims. Existing law prohibits an employer from taking adverse employment action against an employee who is a victim of domestic violence or sexual assault and needs to take time off from work to seek relief. A new law (SB 400) extends these protections to victims of stalking. This new law additionally expands protections to prohibit retaliation because of the employee’s status as a victim, and requires employers to provide reasonable accommodation upon request for the victim’s safety while at work. Another new law (SB 288) prohibits employers from retaliating against an employee who is a victim of a serious felony or other specified crimes for taking time off from work, upon the victim’s request, to appear in court to testify at related proceedings.