Tuesday, January 19, 2016

So You Want to Be an Employer? Notable New California Employment Laws, 2016

Because Californians apparently weren’t restricted enough, Governor Brown signed 807 new bills into law for in 2016. I suppose I should not take too snarky a tone, this is quite a bit less than last year’s 931 new curtailments of freedom. Here are a few of the most notable ones impacting businesses and, therefore, employment in the Golden State.

1) E-Verify: to use or not to use?

E-Verify is an internet-based system signed into law in 1996 by Bill Clinton that implements the requirements of federal law by allowing any U.S. employer to electronically verify the employment eligibility of its newly hired employees. E-Verify is a voluntary program for most employers, but mandatory for some, such as employers with federal contracts or subcontracts. It works by electronically comparing the information from an employee’s Form I-9 with records available to SSA and/or DHS to verify the identity and employment eligibility of each newly hired employee. 
  • At least seven states - UT, AZ, AL, MS, SC, GA & NC require employers to use E-Verify. 
  • Most states require E-Verify for state agencies, public employers and/or public contracts. 
  • Only IL and CA limit the use of E-Verify. 
In 2011, Gov. Brown signed AB 1236 into law prohibiting state municipalities from passing mandatory E-Verify ordinances.

And new for 2016, California has expanded the state’s definition of an “unlawful employment practice” to prohibit an employer from using the E-Verify system at a time or in a manner not specifically required by a specified federal law. The law also requires an employer that uses the E-Verify system to provide to the impacted employee any notification issued by the Social Security Administration or the United States Dept. of Homeland Security containing information specific to the employee’s E-Verify case. There is a $10,000 penalty for each employer’s violation.

2) Expansion of Labor Commissioner’s Spanking Stick

This law expands the Labor Commissioner’s authority to enforce judgments. Former law made aggrieved employees’ responsible for collecting their own judgments using the ordinary judicial enforcement mechanisms. This law authorizes the Labor Commissioner to issue a lien on an employer’s property for amounts owed to an employee, such as unpaid wages, and other compensation, penalties, and interest. 
The law also provides that an owner, director, officer or managing agent of the employer may be held personally liable for violations of any provision regulating minimum wages or hours and days of work in any order of the Industrial Welfare Commission.

3) Additional Protection for the Unlawfully Present

The Unruh Civil Rights Act already ensures that "all persons within the jurisdiction of [California] are entitled to full and equal accommodation in all business establishments regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation." The new law extends this protected class categorization to individuals based on their immigration status, citizenship or primary language and mandates full and equal accommodations in all business establishments irrespective of legal residency.

4) Expanded Employee Time Off Required for School Functions

This school-related leave law is expanded to broaden the reasons employees may take job-protected leave from work without the fear of reprisal by mandating that workers be permitted to take time off work to: (1) find, enroll, or re-enroll children in a school or with a licensed child care provider, and (2) to address a child care provider or school emergency.

5) It’s Good to Be a Grocery Store Worker

Assembly Bill 359 protects grocery employees working in stores of at least 15,000 square feet from being fired during a 90-day transition period when the grocery store undergoes a change in ownership. In that process, the new employer must provide a written performance evaluation and consider an offer of continued employment following a satisfactory evaluation. In a display of unprecedented kindness, the state will allow employers retain the right to terminate an employee for cause at any time during and following the transition period. It is the first statewide law in the nation requiring grocery stores to retain employees after a change in ownership.

6) Professional Sport Team Cheerleaders Are Now “Employees” By Law

Syrian refugees may have thought they had it bad. But unless and until they’ve spoken California’s professional cheerleaders, I don’t think they have any idea how rough things can get.

AB 202 requires California-based minor or major league baseball, basketball, football, ice hockey, or soccer to treat cheerleaders as employees, not independent contractors, when they perform during exhibitions or games. This means that California cheerleaders are now afforded the full protection of all California employment laws, including protections against discrimination, harassment, and retaliation as well as minimum wage protection, unemployment insurance, potential medical benefits under Obamacare and workers’ compensation. Cheerleaders typically made $125 per game where they were, in essence, auditioning for acting, other dancing, or reality TV gigs while having fun at a professional sporting event. The state of California has made that arrangement illegal and greatly increased the cost of cheerleaders, casting doubt on their future in the state.