Labor and Employment Laws
As we covered a few weeks ago (here) there has been a consistent flurry of labor and employment bills introduced in the 2017-2018 California legislative session. Below you'll find another update on five notable wage and hour, and employment related bills working their way through the legislative and the most immediate next step for each. Concerns with these bills should be directed to your respective legislator. Questions about California's existing labor and employment laws can be answered by an experienced employment lawyer.
Wage and Hour
AB 1173 (Assembly Members Travis Allen, Lackey, and Mathis; Senators Berryhill, Fuller, and Moorlach) – Retail employees: Holiday Overtime
AB 1173 would establish an overtime exemption for an “employee-selected holiday season flexible work schedule”. The exemption would allow during the holiday season, as defined, at the request of an individual nonexempt employee working in the retail industry, and upon employer approval, an employee-selected flexible work schedule providing for workdays up to 10 hours per day within a 40-hour workweek. The employer would be obligated to pay overtime based on the employee's regular rate of pay, as prescribed, for all hours worked over 40 hours in a workweek or over 10 hours in a workday, whichever is greater. The bill would establish requirements for the termination of an agreed-upon schedule. The bill would require the Division of Labor Standards Enforcement in the Department of Industrial Relations to enforce this provision and adopt or revise regulations as necessary. This bill contains a CBA carve-out, and clearly has many details to still be ironed out, as it contains a blank in the bill text for the definition of “retail industry”.
Next Steps: Currently in Committee of origin (Labor and Employment)
AB 543 (Chen) – Resident apartment manager wages
Existing law allows employers to take a credit against minimum wage for two-thirds of the ordinary rental value, up to $564.81 per month for a single occupant and $835.49 per month for couples. AB 543 would authorize, under a voluntary written agreement, an employer that doesn't charge a resident apartment manager monthly rent, to apply up to one-half of the fair market rental value of the apartment to meet minimum wage obligations to the apartment manager.
Next Steps: Still in Labor and Employment Committee; awaiting second hearing
Salary Inquiry and Preferred Employment
AB 168 (Eggman) – Pay Equity: salary inquiry ban
AB 168 would prohibit an employer, including state and local government employers, from seeking salary history information about an applicant for employment, except as otherwise provided. The bill would require an employer, except state and local government employers, upon reasonable request, to provide the pay scale for a position to an applicant for employment. The bill would specify that a violation of its provisions would not be subject to the misdemeanor provision under existing law. Language found in AB 168 has failed to get full endorsement twice before—first by Governor Brown when he vetoed AB 1017 in the fall of October 2015, and then again in 2016 when it was stripped from AB 1676 (fair pay legislation) prior to the Governor's approval later in 2016.
Next Steps: Referred to Appropriations from Labor and Employment Committee
AB 353 (Voepel) and AB 1477 (Brough) – Voluntary Veterans' Preference Employment Policy Act
AB 353 and companion bill, AB 1477 create the “Voluntary Veterans' Preference Employment Policy Act,” and would allow private employers to establish a veterans' preference policy and uniformly grant a hiring preference to veteran applicants, regardless of when the veteran served. These bills expand Government code section 12940(a)(4), which currently allows for a veterans' preference policy for Vietnam-era veterans only. These bills would provide that the granting of a veterans' preference will not violate any local or state equal employment opportunity law or regulation, including the California Fair Employment and Housing Act (FEHA), as long as the policy is not applied for the purpose of discriminating against an employment applicant on the basis of any protected classification.
Next Steps: AB 353 is currently in Appropriations; AB 1477 is in both the Veterans Affairs and Labor and Employment Committees
AB 1008 (McCarty, Weber, Holden, Gipson, and Reyes) – Applicants: prior criminal history
AB 1008 would make it unlawful for an employer to: 1) include on any job application questions that seek the disclosure of an applicant's criminal history; 2) inquire or consider an applicant's prior convictions before extending a conditional offer; and 3) when conducting a background check, to consider or disclose various information. The bill would also require employers that intend to deny employment to an applicant because of prior convictions to perform an individualized assessment of whether the applicant's conviction history has a direct and adverse relationship with the specific job duties, considering the nature and gravity of the offense, the time passed since the completion of the sentence, and the nature of the job. Then, the employer must notify the applicant of the reasons for the decision and provide the applicant 10 days to respond and challenge the accuracy of that information or provide evidence of rehabilitation which it must consider before making a final employment decision, in writing.
Next Steps: Re-referred to Appropriations Committee on May 3rd.
California's Existing Labor Laws
While these bills work their way through the legislative process, don't hesitate to contact Kingsley & Kingsley to speak with one of our experienced labor lawyers if you have questions about California's existing wage and hour laws.