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A.
AB 1689 – Wage Claims for Disciplinary Actions
This bill
amends Section 96 of the Labor Code. It
authorizes the Labor Commissioner to accept claims
for loss of wages as the result of a demotion, a
suspension or a discharge for lawful conduct
occurring during non-working hours away from the
employer's premises.
B.
AB 1127 – Cal OSHA
This bill,
which amends the California Occupational Safety and
Health Act, adds massive civil and criminal
penalties for violations of the act. It extends the
period of time (from thirty days to six months) in
which a complaint of discrimination may be filed
with Cal‑OSHA and provides that employers are deemed
to have knowledge about a serious violation unless
they prove they did not know or with reasonable
diligence could not have known of the existence of
the violation. The bill defines the term
"willfully" to mean a willingness to commit or not
commit an act; an attempt to violate the law or to
injure someone is not required.
C.
AB 1001 – Sexual Orientation
Currently,
Labor Code Section 1102.1 prohibits discrimination
on the basis of sexual orientation. AB1001
eliminates those provisions from the Labor Code and
moves them to the Fair Employment and Housing Act.
D.
AB 109 - KinCare
This bill adds
Section 233 to the Labor Code. Employers who
provide paid sick leave to employees must allow
employees to use up to one-half of their yearly
accrual for the illness of a child, parent or spouse
of the employee. Sick leave includes paid time
off, personal days, vacation, etc., if such time off
could be used for an employee for his own personal
illness.
E.
AB 1670 – FEHA Amendments
This bill
entitled the "California Civil Rights Amendments of
1999" extensively amends the Fair Employment and
Housing Act. Highlights of the bill are as
follows.
1.
Extension of harassment prohibition to
encompass independent contractors - as amended,
Government Code Section 12940(h)(1) makes harassment
unlawful against applicants, employees and persons
providing services pursuant to a contract.
Thus a company may be liable for the harassment of
an independent contractor by its managers or
employees.
2.
Added definition of "supervisor."
The FEHA is amended to define "supervisor" extremely
broadly. It is any individual having the
authority "to hire, transfer, suspend, lay off,
recall, promote, discharge, assign, reward, or
discipline other employees, or the responsibility to
direct them, or to adjust their grievances, or
effectively to recommend that action… if the
exercise of that authority is not of a merely
routine or clerical nature, but requires the use of
independent judgment." Gov’t Code Section
12926(q).
3.
Pregnancy Discrimination – Employers
are required to provide “reasonable
accommodation” to an employee due to pregnancy,
childbirth or related medical condition if she
requests such with the advice of her healthcare
provider. Gov’t Code Section 12945(c)(1).
4.
Increase in damages and fines – The
amount of damages and fines which may be awarded in
an administrative proceeding before the Fair
Employment and Housing Commission has been increased
from $50,000 to $150,000 per aggrieved person per
respondent. Gov’t Code Section 12970(a)(3).
5.
Training as a remedy – The FEHA now
includes the training of personnel as an equitable
remedy. Gov’t Code Section 12926(a).
6.
Perception of membership in a protected
class – in addition to prohibiting
discrimination on a number of bases (race, religion,
disability, gender, etc.) the FEHA now includes as
an unlawful practice the perception that a
person has any of the protected characteristics or
that the person is associated with someone
who has or is perceived to have any of those
characteristics. Gov’t Code Section 12926(m).
7.
Regulation of business establishments
– this bill also amends the California Civil Code by
adding Section 51.5. That section prohibits
business establishments from discriminating against,
boycotting or refusing to buy from, contract with,
or sell to any person because of the race, creed,
religion, color, national origin, sex or disability
of the person, or the person's partners, members,
stockholders, directors, officers, manager,
superintendents, agents, employees, business
associates, suppliers or customers; or because the
person is perceived to have one or more of those
characteristics; or because the person is associated
with a person who has, or is perceived to have, any
of those characteristics.
8.
Genetic Testing Prohibited – The bill
also makes it an unlawful employment practice for an
employer to subject an employee or applicant to a
test for the presence of a genetic characteristic.
Gov’t Code section 12940(l).
9.
Expert Witness Fees – Gov’t Code
section 12989.3(g) is amended to provide that a
court may award to the prevailing party its expert
witness fees.
F.
AB 1541 – Religious Exception from the FEHA
Religious
entities – the FEHA currently excludes from its
coverage a religious association or corporation not
organized for private profit. This bill
expands the FEHA's coverage of religious
corporations, by providing that they may restrict
eligibility for employment to adherents of a
particular religion in any position which involves
the performance of religious duties. Gov’t
Code section 12922.
G.
SB 211 – Rebuttable Presumption of “Employer”
This bill
amends the FEHA to add to the definition of
"employer" by adding Section 12928 to the Government
Code. Employer is now also defined as the
person or entity identified as the employer on the
employee's W2 statement.
Government
Code Section 12960 currently provides that a DFEH
complaint must be filed within one year, except that
this time period may be extended 90 days if the
applicant or employee first obtains knowledge of the
facts concerning the unlawful practice after the
expiration of the year. This bill also
provides a second exception to the one year filing
provision. An employee may now be granted up
to one additional year if the employer is not
accurately stated on his W2 and the employee needs
time to make a substitute identification of the
actual employer.
H.
AB 794 – Personnel Records Subpoenas
CCP Section
1985.3 provides for a subpoena duces tecum for the
production of records, including employment records.
This bill expands the definition of "employment
records" to include electronic data. The bill
also makes a number of other changes with respect to
the production of business and employment records
for inspection or copying.
I.
AB 26 – Domestic Partners’ Rights
This bill adds
Section 297 to the Family Code, which delineates the
rights of domestic partners in the state, including
the right of a patient's domestic partner to visit
the patient in a health care facility.
J.
SB 26 – Age Discrimination
The FEHA
prohibits discrimination on the basis of age.
However, in 1997, the California Supreme Court in Marks v. Loral Corp. (1997) 57 Cal.App.4th 30,
held that in a reduction in force situation, an
employer may permissibly select higher paid
employees for layoff over lower paid employees, even
if this results in the selection for layoff of older
employers. This bill expressly rejects the
Marks decision, and declare that the use of
salary as the basis for terminating employment may
be found to constitute age discrimination.
K.
SB 656 – Use of SDI while on CFRA Leave
This bill
amends the Unemployment Insurance Code by adding
section 2655. This section requires that the
Employment Development Department report to the
legislature by July 1, 2000 on the fiscal impact of
extending state disability benefits to employees who
are absent from work on CFRA leave, or who would
have qualified for CFRA leave except that their
employers are exempt from being required to grant
such leave.
L.
SB 56 – Domestic Violence
Labor Code
Section 230 currently prohibits an employer from
discharging or discriminating against an employee
for taking time off to serve on a jury or for
appearing in court as a witness if subpoenaed.
This bill
amends Section 230 to prohibit an employer from
discriminating against, retaliating against or
discharging an employee who is a victim of domestic
violence for taking time off to obtain a TRO or
other relief.
The bill also
provides that an employee who has been adversely
treated for having taken time off to serve on a
jury, appear as a witness or obtain a TRO as a
result of domestic violence may file a complaint
with the DLSE.
While
employees who claim adverse action as a result of
serving on a jury or appearing in court as a witness
may have 30 days in which to file a complaint, this
bill provides that domestic violence victims may
have up to one year in which to file a complaint.
The bill also provides that employees who need time
off for the above reasons may use vacation, personal
leave or compensatory time off which is otherwise
available to them.
M.
AB 344 – Access to Academic Peer Review Records
Currently,
Labor Code Section 1198.5 provides for the employee
inspection of his or her personnel file. This
bill adds Section 1198.7 to the Labor Code, which
provides that an institute of higher education may
allow an academic employee access to academic peer
review records, but in a form that does not reveal
the identity of any of the reviewers.
N.
SB 97 – Health Care Whistleblower Statute
This bill adds
Section 1278.5 to the Health and Safety Code.
This provision prohibits the health facility from
discriminating against or retaliating against a
patient or employee because that individual has made
a complaint or has initiated or cooperated in any
investigation of any governmental entity, relating
to the care services or conditions of the facility.
The bill also
provides that a health facility that violates this
section will be subject to a civil penalty of up to
$25,000. Finally, the bill creates a reputable
presumption that adverse action taken against an
employee who has made a complaint or participated in
a governmental investigation within 120 days of the
adverse action shall be considered unlawful
retaliation.
O.
AB 1268 – Picket Line Misconduct
This bill adds
Section 1138.5 to the Labor Code relating to the
liability of unions in labor disputes. The
bill adopts the protections found in federal law in
the Norris-LaGuardia Act. Specifically, union
officers and members will not be held responsible or
liable for the unlawful acts of individual officers,
members or agents, except upon "clear proof" of
actual participation or authorization of the acts.
In addition, the bill prohibits courts from issuing
injunctions in labor disputes except after
evidentiary hearings.
P.
AB 537 – Violence Against Students
This bill is
known as the California Student Safety and Violence
Prevention Act of 2000. The bill makes it
unlawful for any person to be subject to
discrimination on any basis that is contained in the
prohibition of hate crimes, as set forth in Penal
Code Section 422.6(a). That section makes
unlawful intimidation, injuries and threats based
upon a person’s race, color, religion, disability,
ancestry, national origin, gender or sexual
orientation.
Q.
SB 1185 – Genetic Characteristics Defined
The FEHA
provides medical condition discrimination.
“Medical condition” is defined as a health
impairment related to or associated with a diagnosis
of cancer for which a person has been rehabilitated
or cured, or genetic characteristics. Gov’t
Code section 926(h).
This bill
amplifies the definition of genetic characteristics
as (1) an identifiable gene or chromosome which is
know to be a cause of a disease or associated with a
statistically increased risk of the development of a
disease; or (2) inherited characteristics which are
known to be a cause of a disease or associated with
the statistically increased risk of development of a
disease.
R.
AB 60 – Wage and Hour Charges
This bill reinstates the daily overtime requirement.
It requires the payment of 1˝ times the regular rate
of pay for hours worked in excess of 8 in a day and
for the first 8 hours worked on the seventh day of a
work week, and requires double time for hours worked
in excess of 12 hours per day as well as hours
worked in excess of 8 hours on the seventh day of a
workweek. The bill also makes other changes to
wage and hour law including alternative work
schedules, meal periods, make-up work and flexible
schedules.
S.
AB 519 – Sexual Harassment in a Professional or
Business Relationship
Section 51.9 of the Civil Code currently provides a
cause of action for sexual harassment which occurs
as part of a professional relationship, such as
physician-patient, attorney-client or
landlord-tenant. However, as currently
written, the law defines sexual harassment as
“sexual advances, solicitations, sexual requests or
demands for sexual compliance.” The client
also must ask the harasser to stop the harassment.
A client must suffer economic loss and/or personal
injury.
This bill redefines sexual harassment as “sexual
advances, solicitations, sexual requests, demands
for sexual compliance, or other verbal, visual or
physical conduct of a sexual or hostile nature based
on gender.” The bill removes the requirement
that the sexual harassment be “persistent” and
instead substitutes “pervasive.” The bill
deletes the requirement that the client ask the
harasser to stop the conduct, and further clarifies
“personal injury” to include emotional distress.
T.
AB 1107 – Health Care (effective 7.22.99)
A very lengthy healthcare bill which contains a wage
provision affecting nursing facilities which receive
Medi-Cal reimbursement monies. Effective
August 1, 1999, Medi-Cal reimbursement has been
increased solely so that these nursing facilities
may pass on the funds to increase the wage of RN’s,
LVN’s and NA’s who provide direct patient care.
Welfare & Institutions Code section 14110.6.
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