Legislative Update April 30th

Edelstein Gilbert Robson & Smith

April 30 marked the first significant legislative deadline of the 2021 legislative session whereby bills had to pass out of policy committees in the house of origin before being considered by the fiscal committee. This session, consistent with recent years, we have seen a plethora of employment-related legislation that would impose various requirements on all California employers. With the pandemic, bills of this nature have increased, with legislators proposing expansion of leave offered to employees and additional services, benefits and workplace protections under the umbrella of COVID-19 response.

With the Legislature and legislative committees dominated by labor union-friendly Democrats, many of these bills have easily passed the first policy committee on party line votes.

The following is an update on some of the major employment bills after the first four months of the legislative session. Unless otherwise noted, all the bills discussed below passed out of their first policy committee on party line votes.

LEAVE BILLS

AB 95 (Low) – Unpaid Bereavement Leave. This bill would require employers with 25 or more employees to allow employees to take up to ten days of unpaid bereavement leave for the death of a family member. For employers with less than 25 employees, the employer is required to grant up to three days of bereavement leave for this purpose.

This is a reintroduced version of AB 2999 (Low) of 2020 that fell by the wayside due to the truncated legislative session during the peak of the pandemic.

AB 995 (Gonzalez) – Expanded Sick Leave.  This bill would allow employees to take five paid sick leave days per year. Current law allows for three days. The author framed the need for the bill around COVID-19, noting that the bill is necessary so employees that are sick can stay home and reduce the risk to their coworkers.

AB 1041 (Wicks) – Expanded Leave for Non-Family Relationships. This bill would expand the list of people an employee can take leave to care for to include an individual with close association to the employee. The author’s intent for this bill is to ensure those that do not have conventional family relationships are still able to take the same leave for their loved ones.

After heavy lobbying against the bill, it was substantially narrowed to allow an employee to designate one person annually to take this leave for and allows the employer to require documentation of that designated person’s caretaking needs.

AB 1119 (Wicks) – Family Responsibility Discrimination. This bill would expand the list of protected characteristics under FEHA discrimination protections to include “family responsibilities.” Under the bill, family responsibilities include the obligation to provide ongoing care to a minor child or “care recipient” which is a person who lives with the employee and relies on them for care. Expanding FEHA to cover these obligations would allow employees to have a cause of action against an employer who discriminated against the employee because of their family responsibilities.

Because the bill allows for a private right of action, employer groups are strongly opposed and have been working to narrow the language that would allow for an accommodation for family responsibilities.

ADDITIONAL EMPLOYEE BENEFITS

AB 1179 (Carrillo) – Backup Childcare. This bill would require employers with more than 1,000 employees in California to provide 60 hours of backup childcare benefits to their employees. Interestingly, the labor unions that typically engage on bills of this nature do not have a position on this bill.

To make this bill more workable for employers, the employer associations are seeking to work with the author to propose a more comprehensive strategy to deal with childcare that includes government support for childcare programs, especially considering the federal stimulus dollars already allocated to states for childcare purposes.


AB 650 (Muratsuchi) – Hero Bonuses for Healthcare Workers. This bill would require healthcare employers to pay out retroactive bonuses to frontline employees. The author and sponsors argue that this bill is necessary to incentivize employees to continue working in the healthcare space after the hardship the pandemic has caused on workers and their families.

The costs to provide these bonuses is estimated at $6 billion, and for this reason, most healthcare sector trade associations are opposed to the bill. During the bill’s hearing in the Assembly Labor Committee, members of the committee urged the author to expand the bill to public hospitals and clinics so that all healthcare employees affected by the pandemic can receive bonus pay as well.

The author has indicated his willingness to work with the opposition to ensure that the costs imposed by this bill do not prevent healthcare providers’ ability to provide essential services to patients. We expect future amendments to this bill as the author, sponsor and opposition work to clarify which employees are covered by the provisions of the bill.

OTHER BILLS OF INTEREST

AB 1192 (Kalra) – Worker Metrics. This bill is sponsored by the CA State Controller and would require private employers with 1000 or more employees to provide an annual report with significant disclosures regarding their workforce. Essentially, the bill would require the internet posting of labor information to publicly compare employers as well as leave the door open for lawsuits on pay disparities and upward mobility of employees.

The bill passed the Labor Committee with the author arguing it will incentivize the creation of quality jobs by requiring employers to illustrate that their economic success is translating into high paying employment opportunities.

AB 1003 (Gonzalez) – Wage Theft as Grand Theft. As introduced, this bill would have made an employer’s intentional theft of wages over $950 an alternate felony/misdemeanor.  Under existing law, wage theft is defined very broadly, and this bill could have resulted in criminal penalties to employers who had no criminal intent.

In a lobbying victory for the employer community, this bill was amended to specify that wage theft is considered intentionally depriving employees’ wages in a fraudulent or other unlawful way with the knowledge that the wages, benefits, or other compensation are owed to the employee. This bill passed unanimously out of policy committee and opposition has since been removed.

SB 410 (Levya) – Bypassing CalOSHA Economic Impact Reports. This bill would eliminate the requirement that CalOSHA issue an economic impact analysis when adopting new workplace health and safety standards. A regulatory economic impact analysis is designed to provide government agencies and stakeholders with the information needed to determine whether the regulations proposed are an efficient and effective way of implementing policy changes in the least burdensome way.

The author and sponsors argue that the economic impact analysis delays the approval of workplace safety regulations, which imposes a direct threat to the well-being of workers. On the contrary, the business community notes that this bill essentially allows for all regulations to be passed without any consideration for how it may burden employers when implementing the regulations.

SB 606 (Gonzalez) – CalOSHA Enforcement. This bill expands CalOSHA’s enforcement capabilities when an employer violates workplace safety laws. The bill also establishes a rebuttable presumption of unlawful retaliation if an employer takes adverse action against an employee within 90 days of when that employee first notified the employer of an unsafe condition. It is sponsored by the California Labor Federation, Worksafe and UFCW.

While this bill was amended to narrow its scope and impact, the language is still concerning to employers who note that this bill will increase and unnecessary enforcement actions at a time when employers are trying in good faith to comply with the emergency regulations recently adopted in response to COVID-19.