California Employer Advisory Council

Labor Law Legislation Update - April 6, 2008

May 6, 2008

By Bruce Matlock - CEAC Legislative Chair

This is the second 2008 report on California legislation that may affect employers. I would appreciate any information on bills that I may have missed. If you want information on any of these bills or copies of the bill language, contact me or go to http://www.leginfo.ca.gov.

Please do not rely on this report as legal advice, because it isn't. If you need more detailed information you should contact your local attorney or give me a call.

Amended Bills

Independent Contractors, SB 1490 Padilla: As originally introduced this bill only proposed the Legislatures intent to pass new laws on the use of independent contractors. The bill has been amended to require any employer who hires a contractor to give the contractor a notice that explains: the worker's status as a contractor; the impact that status has on the worker's tax obligations and labor and employment protections; and that the worker may request a written determination from EDD as to whether the classification as an independent contractor is correct. EDD must also send a notice to the contractor. The employer must maintain copies of the notice and information about the contractor for a period of two years and provide that information upon request to the State. These requirements are in addition to the existing law that requires an employer to provide notice to the State when hiring an independent contractor. Labor and IR Comm., hearing 4/9.

E-Verify Training, AB 2076 Fuentes: The original language would have required training for employers who use E-Verify. The amended bill would prohibit the State, unless required by Federal law, from using E-Verify, and would prohibit any city or country from requiring employers to use E-Verify. Labor and Employment Comm., hearing 4/23.

Additions To This Report:

Meal Period Exemption, AB2719, Jeffries: Would exempt workers compensation fraud investigators conducting surveillance from meal and rest period requirements.
Comm. On Labor and Employment, hearing 4/23.

Tax Audits, AB 2879, Leno: Would require the Labor Commissioner to develop standards for when to notify tax authorities that an employer may deserve a tax audit.
Comm. On Labor and Employment, hearing 4/9.

Mileage Reimbursement, AB 3061, Comm. On Labor and Employment: Would put into the Labor Code the Labor Commissioners presumption that paying the IRS mileage rate is presumed to be reasonable reimbursement for using employee cars for company business. Comm. On Labor and Employment, hearing 4/9.

Discharge for Garnishments, AB 3062, Comm. On Labor and Employment: Under current law an employer may not terminate an employee for one garnishment. This bill would prohibit firing an employee for any garnishment. Comm. On Labor and Employment, hearing 4/9.

Conviction Records, AB 3063, Comm. On Labor and Employment: With certain exceptions would prohibit asking an applicant about convictions that have been expunged. Comm. On Labor and Employment, hearing 4/9.

Wage and Hour Issues

Meal Periods, AB1711 Levine:
This bill is carried over from 2007, currently in the Senate. Would allow a meal period to be completed by the end of the 6th hour of work, instead of the current 5th hour. Defines "on-duty" meal periods and clarifies when a meal period may be waived for employees working more than 10 hours. Also would allow a prevailing party in a lawsuit over wage and hour issues to recover expert witness fees. No Action.

Meal Periods, SB 1192 Margett:
Would declare that the one-hour payment for missed meal and rest periods is a "penalty", not wages. Would change the statue of limitations to one year for such violations.
Would allow meal period to start before the end of the 6th hour.
Would declare that an employer has complied with Meal Period laws by making the meal period available to employees. Would allow employees to waive the meal period. Labor and IR Comm., hearing 4/9.

Meal Periods, SB 1539 Calderon:
Defines requirements for "on-duty" meal period.
Would declare that an employer has complied with Meal Period laws by making the meal period available to employees. Would allow employees to waive the meal period. Labor and IR Comm., hearing 4/9.

Meal Periods, AB 2530 Duvall:
California law on meal and rest periods would not apply to truck drivers covered by Federal or State law governing hours of service. Labor and Employment Comm., hearing 4/9.

Final Pay, AB 2075 Fuentes:
Would make it unlawful to require an employee to make a false statement regarding hours worked to get a final paycheck. Labor and Employment Comm., hearing 4/9.

Final Pay, SB 1283 Harman:
Under current law, when an employee is terminated, they must receive their final check at that time. This bill would allow an employer to delay payment, when the payroll processor is closed, to no later than 6 hours after the beginning of the next business day. f the payroll processor is out of state, payment could be delayed until 24 hours after the start of the next business day. Labor and IR Comm., hearing 4/23.

Alternative Work Schedules, AB2127 Benoit:
For companies with less than 25 employees, an individual employee could agree to an AWS without complying with the current election procedures. Labor and Employment Comm., hearing 4/9.

Retaliation for Labor Commissioner Complaints, SB 1244 Alquist:
Would make it illegal to retaliate or discriminate against an individual because a family member or co-worker filed a wage and hour complaint. Would include discrimination in the hiring process. Judiciary Comm., hearing 4/15.

Independent Contractors, SB1583 Corbett:
A person who advises an employer, for money or other consideration, to misclassify a worker as an independent contractor would be as liable as the employer for back taxes, and other required payments and fines. Thank goodness the bill excludes attorneys. udiciary Comm., hearing 4/8.

Employment of Illegal Aliens

State Contractors, AB 2089 Devore:
Prohibits State contractors from using illegal aliens. Business and Professions Comm., hearing 4/15.

State Contractors, AB 2201 Plescia:
Would require State contractors to use the Federal system called E-Verify when hiring. Compare to AB2076 on page 1. Business and Professions Comm., no hearing set.

Miscellaneous Employment Issues

Medical Marijuana, AB 2279 Leno:
Would overturn recent California Supreme Court Decision and prohibit employers from refusing to hire applicants or terminating employees who use medical marijuana. There is an exception for "safety sensitive" positions. That criterion is spelled contained in the bill. Judiciary Comm., hearing 4/8.

Mandatory Paid Sick Leave, AB 2716 Ma:
Employers would be required to provide 1 hour of sick leave for every 30 hours of work
Employees would be able to use sick leave after 90 days of employment. Employees could use 50% sick leave to care for family members. Family members include parent, child, spouse, domestic partner, grandchildren, grandparents, siblings, and one additional person the employer could designate each year. Sick leave can accrue but small businesses (less than 10 employees) can limit use to 40 hours a year. Other employers must allow 72 hours a year. Unused sick leave need not be paid on termination of employment. Labor and Employment Comm., hearing 4/9.

Consumer Credit Reports, AB2918 Lieber:
Would prohibit the use of consumer credit reports by employers. No action.

Paid Family Leave and Unemployment Benefits, SB 1661 Kuehl:
Would declare that an employee, who is terminated for taking Paid Family Leave, is eligible for Unemployment benefits. Labor and IR Comm., hearing 4/9.

Domestic Partnerships, SB 1066 Migden:
Would remove the age requirement (62) for heterosexual couples to register as domestic partners. Senate Appropriations Comm., hearing 4/14.