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California Governor signs a multitude of employment-related legislation

October 12th, 2011  |  David Stephanides

California Governor Jerry Brown recently signed into law a host of employment-related legislation. Here’s a rundown of enacted laws compiled by the editors of CCH’s Employment Law Daily.

Bill prevents California municipalities from exceeding federal E-Verify requirements

On Sunday, October 9, as the California legislative calendar was drawing to a close, California governor Jerry Brown signed into law legislation (A.B. 1236) prohibiting the state, or a city, county, city and county, or special district from requiring an employer, other than one of those government entities, to use an electronic employment verification system, except when required by federal law or as a condition of receiving federal funds.

The federal E-Verify Program enables participating employers to use the program, on a voluntary basis, to verify that the employees they hire are authorized to work in the United States.

Governor signs bill banning open carry of guns in public

On October 10, 2011, California Governor Jerry Brown announced that he has signed A.B. 144, which relates to the carrying of firearms in public. Under prior law, any registered gun owner could openly carry his or her gun in public, as long as it was not concealed and not loaded. The author of A.B. 144, Assembly Member Anthony Portantino (D-Pasadena), said that gun activists took advantage of the loophole in California’s gun law by organizing large “open carry” events in public places. Many members of the public were disturbed by the display of weapons and law enforcement had to respond to make sure the guns were not loaded, according to Portantino.

A.B. 144 makes it a crime to openly carry an unloaded handgun in any public place or street. Violations are a misdemeanor punishable by up to one year in jail and/or a fine of up to $1000. Law enforcement personnel are exempt, as are security guards, hunters and others carrying unloaded weapons under specified licensed circumstances.

Governor signs bill limiting employer use of consumer credit reports

California Governor Jerry Brown signed legislation, on October 10, that will limit the ability of employers and prospective employers to use credit reports in hiring and employment decisions.

The new law (A.B. 22) will prohibit most employers and prospective employers from obtaining a consumer credit report for employment purposes, unless the person for whom the report is being sought is (1) a position in the state Department of Justice; (2) a managerial position (must meet executive exemption of California Wage Order No. 4); (3) that of a sworn peace officer or other law enforcement position; (4) a position for which the information contained in the report is required by law to be disclosed or obtained; (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment; (6) a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf; (7) a position that involves access to confidential or proprietary information; or (8) a position that involves regular access to $10,000 or more of cash.

Before any employer makes a request, however, the law requires employers to provide written notice of the request to the person for whom the report is sought.

The Governor’s signature follows a 21-17 vote in the state senate and a 48-48 vote in the General Assembly.

Governor signs bill making it easier for farmworkers to unionize

On October 9, California Governor Jerry Brown signed into law legislation easing obstacles to the unionization of farm workers. The bill was a piece of compromise legislation shepherded by the governor himself, after Brown vetoed an earlier version of the bill.

Previously, state law made it unlawful for employers to engage in unfair labor practices, including interfering in unionization elections. The prior law stated that, within 5 days after the above-described election, any individual could file with the Agricultural Labor Relations Board a signed petition objecting to the conduct of the election or conduct affecting the results of the election; the Board would then have to hold a hearing to decide whether or not to certify the election. The law also allowed for the decertification of unions representing agricultural workers.

Senate Bill 126 amends the current laws. This bill would specify time limits relating to certification or decertification hearings. Within 21 days of the filing of any objections to ballots, the Labor Board must issue a decision stating which issues shall be dealt with at a hearing. Any hearing must then take place within 28 days of the Board’s decision to hold such hearing.

This bill would also amend current law to specify what courts may consider when determining whether temporary relief or a restraining order for alleged unfair labor practices is appropriate. Under the bill, if the alleged unfair labor practice would tend to interfere with the free choice of employees, regarding their choice in a representation election, the labor board must issue appropriate temporary relief or a restraining order, if a party shows that reasonable cause exists to believe that an unfair labor practice has occurred. Any injunctive order would remain in place for either 30 days or until an election has been held, whichever occurs first. This bill would provide that the temporary relief or restraining order shall not be stayed pending appeal.

Further, the bill alters the manner in which mandatory mediation may be triggered. Under existing law, the employers or unions have 90 days, following a renewed demand to bargain – if the parties have failed to reach agreement for at least one year – in which to file a declaration stating that the parties have failed to reach a collective bargaining agreement, thus triggering mandatory mediation; if the parties do not have an existing contract, the relevant date is 180 days after an initial request to bargain.

The new law, however, states the declaration may be filed 90 days after a renewed demand to bargain, 90 days after an initial request to bargain, 60 days after the board has certified the labor organization because of employer misconduct and a finding that would render slight the chances of a new election reflecting the free and fair choice of employees, or 60 days after the board has dismissed a decertification petition upon a finding that the employer has unlawfully initiated, supported, sponsored, or assisted in the filing of a decertification petition.

One of the state’s largest agricultural unions praised the Governor’s decision to sign the bill. The United Farm Workers, which had strongly opposed the Governor’s previous veto, said the new law will “remove some obstacles for farm workers who want to join a union.

Governor signs bills barring discrimination on basis of gender and sexual identity

On October 9, California Governor Jerry Brown signed into law two bills barring discrimination on the basis of gender and sexual identity.

Assembly Bill 887 clarifies gender identity provisions in existing state law to define gender expression as meaning a person’s gender-related appearance and behavior, even if that behavior and appearance is not stereotypically associated with the person’s assigned sex at birth. The definition also includes gender-related appearance and behavior.

Currently, California law requires equal rights and opportunities in various aspects, including education, housing, and employment, regardless of gender, and prohibits discrimination based on specified characteristics, including sex and gender; A.B. 887 amends the law to include gender, gender identity, and gender expression among the equal rights protections. This legislation additionally requires an employer to allow an employee to either appear, or dress, consistently with their gender expression. In addition, such characteristics of gender, gender identity, or gender expression could not be used as the sole bases of determining whether to grant or deny a workers’ compensation claim.

Senate Bill 757 prohibits a group health care service plan or health insurance policy from discriminating in coverage between spouses or domestic partners of a different sex and spouses or domestic partners of the same sex. Current law requires such plans to provide group coverage to the registered domestic partner of an employee, subscriber, insured, or policyholder that is equal to the coverage provided to the spouse of those persons.

Every group health care service plan contract and every group health insurance policy that is marketed, issued, or delivered to a California resident will be subject to the requirements to provide equal coverage to domestic partners as is provided to spouses, notwithstanding any other provision of law. With the exception for a policy issued outside of California to an employer whose principal place of business and majority of employees are located outside of California, no policy or certificate of health insurance marketed, issued, or delivered to a resident of the state may discriminate in coverage between spouses or domestic partners of a different sex and spouses or domestic partners of the same sex.

Governor signs employee misclassification bill

California Governor Jerry Brown signed legislation, on October 9, prohibiting employers from engaging in willful employee misclassification. Senate Bill 459 would also prohibit charging individuals who have been mischaracterized as independent contractors a fee or making deductions from compensation where those acts would have violated the law, if the individuals had not been mischaracterized.

The Labor and Workforce Development Agency will now have authority to assess civil penalties and take other disciplinary actions against violators. Additionally, the Department must inform the Contractors’ State License Board when a licensed contractor violates the law and shall require the board to initiate an action against the licensee. A person or employer violating the law would be subject to a civil penalty of $5,000 to $15,000, for each violation, in addition to any other penalties or fines permitted by law. If it is determined the violations and the person or employer is or has been engaged in a pattern or practice of these violations, the person or employer would be subject to a civil penalty of $10,000 to $25,000, for each violation.

Anyone who knowingly advises an employer to improperly treat an individual as an independent contractor to avoid employee status could be found jointly and severally liable with the employer. However, a person who provides advice to his or her employer, or an attorney who provides legal advice in the course of practicing law, would be exempt from this liability.

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