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Employment Law – Legislative Roundup

Drama and suspense ran high as lawmakers worked through the weekend until midnight last month to meet the August 31st deadline and pass bills for this year’s legislative cycle. Last-minute negotiations resulted in promising movement on important workers’ rights issues, including compensation, paid sick days, and family leave, but also gave rise to counter-measures from the business lobby including one to weaken meal and rest break protections and PAGA enforcement for remote workers.

Employment Law Legislative RoundupRetaliation and Whistleblower Protections (AB 1947 Assemblymember Kalra):  This bill will extend the filing deadline for administrative retaliation complaints from 6 months to 1 year. The  bill will also allow workers to recover their attorneys’ fees if they prevail in a whistleblower action under Labor Code Section 1102.5.

Right to Recall and Right to Retention (AB 3216 Assemblymembers Kalra & Gonzalez): AB 3216 ensures the right of recall and retention for workers in hotels, event centers, airports, and building services – industries hardest hit by the shelter-at-home rules.

Pay Data Reporting to Close the Gender and Race Wage Gaps (SB 973 Jackson): The COVID-19 pandemic is highlighting the consistent undervaluing of women’s work and the ways in which gender- and race-based pay disparities put women (particularly women of color) at higher risk of economic insecurity and contribute to higher poverty rates overall. This bill would help close the gender wage gap by requiring California employers with 100 employees or more to submit an annual pay data report to the state outlining the compensation and hours worked of its employees by gender, race, ethnicity, and job category.

Domestic Workers’ Health and Safety (SB 1257 Durazo):  COVID-19 has presented many health and safety risks, particularly for domestic workers who are caring for the sick and elderly.  Unfortunately, domestic workers are exempt from health and safety laws under Cal/OSHA. This bill would get rid of this unjust exemption to help ensure domestic workers have basic health and safety protections.

Family Leave (SB 1383 Jackson):  This bill would expand the California Family Rights Act to cover all employers with 5 or more employees and to additionally allow employees to use unpaid job protected leave to care for a domestic partner, grandparent, grandchild, sibling, or parent-in-law who has a serious health condition.  For claims against employers with 5-19 employees, parties must participate in mediation through the Department of Fair Employment and Housing before a civil action can be filed.

Although workers’ advocates scored some major victories, not all bills advanced through the legislature unscathed.  Despite promising signs early on by the Governor and the legislature to fight for the most urgent needs of workers during this pandemic, as months went on and businesses were shuttering, the focus shifted to fighting for small businesses and, in some instances, at the cost to workers and the enforcement of their rights.

For example, one priority bill, SB 1383 (Jackson), which would significantly expand worker protections under the California Family Rights Act, passed the Assembly just two minutes before the midnight deadline.  With the Governor expected to sign this legislation, passing the bill was an enormous victory for working families in California.  However, advocates were only able to secure the requisite votes by adding a pilot program that would require parties to mediate before the plaintiff could file a civil action. (This program would only apply to claims against businesses with fewer than 20 employees and would sunset in 2024.)

Fortunately, workers succeeded on other fronts. A bill to strengthen retaliation and whistleblower protections, AB 1947 (Kalra), won passage while managing to preserve the added attorneys’ fees provision under Labor Code Section 1102.5, which was the sole target of the business opposition.  Also,  SB 973 (Jackson), won its battle to fight the gender and race wage gap by requiring large employers to compile and submit employee pay data reports to the Department of Fair Employment and Housing.  And last but not least, an amazing group of domestic workers and advocates fought to pass legislation, SB 1257 (Durazo), that would eliminate the historically racist and sexist exclusion of “household domestic service” from health and safety laws under Cal OSHA.

As this legislative session comes to a close, it is amazing how vastly different legislative priorities and lobbying strategies look now versus the beginning of the year.  Although the legislature has closed their session for the year, there is still much more work to do.

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