By Joel Kane, Sedgwick, LLP
The California Legislature is constantly enacting new laws, many of which address relatively narrow issues. In some instances, however, there’s still a significant impact on employers, especially in industries that are being targeted by the legislation.
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This article touches on a few of the more significant revisions over the last several months. Read on, because it remains critical that anyone who works with (or in spite of) California employment laws must keep himself or herself well informed.
Agricultural Workers: Wages and Hours
In September, Governor Edmund G. Brown approved Assembly Bill (AB) 1066, which was passed by the Senate at the end of August. Of tremendous significance to the agricultural industry, AB 1066 enacts the Phase-In Overtime for Agricultural Workers Act of 2016, codified at Labor Code Sections 857 to 864.
Under the Act, beginning January 1, 2019, agricultural workers are entitled to 1½ times their regular pay rate for all time worked over 9½ hours in 1 day, or 55 hours in 1 workweek. During each of the following 3 years, agricultural workers will need to work fewer hours before overtime pay (at 1½ times their regular rate) kicks in.
In 2020, overtime pay begins after 9 hours worked in 1 day, or 50 hours worked in 1 workweek; in 2021, overtime pay begins after 8½ hours worked in 1 day, or 45 hours worked in 1 workweek; and in 2022, overtime pay begins after 8 hours worked in 1 day, or 40 hours worked in 1 workweek.
The overtime requirements apply to small employers (those with 25 or fewer employees) 3 years after each incremental change is made. That means the 2019 pay rate applies to small employers beginning in 2022, the 2020 rate applies to small employers beginning in 2023, the 2021 rate applies to small employers beginning in 2024, and the 2022 rate applies to small employers beginning in 2025.
Additionally, beginning January 1, 2022, agricultural workers are entitled to twice their regular rate of pay for all time worked over 12 hours in 1 day. This provision applies to small employers as of January 1, 2025.
While employers have 2 years to plan for the newly enacted agricultural overtime pay requirements, the changes will undoubtedly force employers to revise their budgets and more closely manage the hours of their workforce.
Customer Info: Age Bias in the Entertainment Industry
AB 1687 was enacted to protect against age discrimination in the entertainment industry. Under newly added Civil Code Section 1798.83.5, companies that maintain personal information for subscribers searching for entertainment jobs may not publish a subscriber’s date of birth or age or share it with any website for the purpose of publication should the subscriber request that it not be shared. If the information is already published, the company has 5 days to remove it upon the subscriber’s request.
This law has a fairly narrow scope, and it won’t directly apply to the majority of employers. However, it emphasizes the importance that California places on protecting against age discrimination, including by the entertainment industry and providers of Internet services.
Applicants for Employment: Criminal History
Under existing laws, with certain exceptions, employers may not ask job applicants about past arrests or detentions that didn’t result in a conviction for purposes of making hiring, promotion, or termination decisions. Under AB 1843, which amends Labor Code Section 432.7, employers are also prohibited from asking job applicants about convictions that were made by juvenile courts or under the jurisdiction of juvenile court law. However, employers are still entitled to know about juvenile convictions that resulted in a felony.
An employer that violates this provision could be liable for the job applicant’s damages and attorneys’ fees. Additionally, an intentional violation will be considered a misdemeanor and will subject the employer to triple actual damages. The law allows young adults to enter the workforce with a clean slate. It’s yet to be seen whether employers will see any adverse effects.
Vehicles: Driving Under the Influence
Although this law isn’t directly employment-related, it’s relevant for employers, given the rise of Uber, Lyft, and similar transportation businesses. Everyone knows that under the existing vehicle code, it is unlawful for a person to operate a vehicle while he or she’s under the influence of any alcoholic beverage and has a blood alcohol content of .08% or more. It’s also unlawful for anyone to drive a commercial motor vehicle with a blood alcohol content of .04% or more. Beginning July 1, 2018, AB 2687 makes it unlawful for any person to drive a motor vehicle with a blood alcohol content of .04% or higher if a “passenger for hire” is in the vehicle.
A “passenger for hire” includes any person who is expected to pay for his ride, directly or indirectly, to the owner or operator of the vehicle. Thus, anyone operating a vehicle for Uber, Lyft, or any of the other transportation business companies will be deemed to be driving under the influence if his or her blood alcohol content is .04% or higher.
Employment Safety: Heat Regulations for Indoor Workers
Senate Bill (SB) 1167 adds Labor Code Section 6720, which requires the California Division of Occupational Safety and Health (Cal/OSHA) to develop heat illness prevention standards for indoor workers. Currently, heat illness prevention standards exist only for outdoor workers.
Under Section 6720, Cal/OSHA has until January 1, 2019, to develop standards to minimize heat-related illnesses and injuries for people working indoors. Employers with factories or other indoor work spaces that may be subject to high temperatures should be on the lookout for the regulations, which will be based on current heat stress and heat strain guidelines.
Bottom Line
It cannot be emphasized enough that employers must remain current on all employment and wage and hour laws. Review each new law to determine whether it’s applicable to your workforce and whether it signifies a trend toward greater regulation in areas that may affect your company, customers, or clients. California has long been a front-runner in creating new employment regulations, increasing wages and benefits, and applying stricter penalties for violators.
Be sure to contact employment counsel if you have concerns about any of the laws referenced in this article or any other law that has been recently revised.
The author can be reached at Sedgwick LLP in San Francisco, joel.kane@sedgwicklaw.com.