In 2013, Assembly Bill [AB] 60 created Vehicle Code section 12801.9 authorizing the California Department of Motor Vehicles (DMV) to provide driver’s licenses to undocumented individuals. AB 60 thus directs the DMV to accept alternative satisfactory forms of proof of identity and California residency other than a federally issued green card. DMV will start issuing so-called “AB 60 Driver’s Licenses” in January, 2015. By regulation, the department will now accept, for example, a California identification card (issued October, 2000 or after) or a valid, approved and verifiable foreign passport as valid ID to qualify the applicant for such a license. AB 60-Proof of Identity and California Residency.

These new licenses will require employers to handle applicants and employees who present them very deliberately.

On the one hand, and also effective January 1, 2015, AB 1660 amends the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against individuals for holding or presenting an “AB 60 Driver’s License.”

AB 1660(v) amends California Government Code section 12926(v) with an additional sentence: “’National origin’ discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.”

California Vehicle Code section 12801.9(h) is also amended. It will now be a FEHA violation for an employer “to discriminate against a person because the person holds or presents a driver’s license issued pursuant to this section, or for an employer…to require a person to present a driver’s license, unless possessing a driver’s license is required by law or is required by the employer and the employer’s requirement is otherwise permitted by law.” AB 1660(h)(2)(A).

AB 1660 also states any driver’s license information obtained must be treated as private and confidential and may not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

On the other hand, AB 1660 specifies that these discrimination protections shall not be construed to alter an employer’s rights or obligations to obtain documentation evidencing identity and authorization for employment as required by the federal Immigration and Nationality Act. Accordingly, any “AB 60 Driver’s License” will notate that it is not acceptable for federal purposes, such as verifying employment eligibility.

AB 1660 underscores the need for employers to understand how they may use an applicant’s or employee’s AB 60 driver’s license and how they may not. Obviously, an AB 60 license presents a potential red flag on an individual’s authorization to work in the U.S. since that person did not have to show a valid green card to obtain it. Yet, AB 1660 directs that terminating that person solely for his or her possession of an AB 60 license would be discriminatory. Thus, when faced with such a license, an employer might well be on notice that it must inquire further to confirm the person’s authorization under federal law to work in this country.

Just how these potentially competing rights and obligations will balance against each other in specific situations will likely be matters for the courts to decide. Regardless, an employer who is presented with an AB 60 license should probably consult with legal counsel to assist on any decision concerning the affected person’s subsequent job status.

If you need further information, please feel free to contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.

As relayed a year ago in California’s Expanded Immigration-Related Protections, this state provides the most stringent retaliation protections for immigrant workers in the country. Effective January 1, 2015, California employer obligations in this area are increased again.

Labor Code section 1019 has prohibited any California business from engaging in “unfair immigration-related practices” in retaliation for a worker’s exercise of certain rights, including employee submission of a good faith complaint over his/her employer’s labor practices, seeking information on whether the employer is in compliance with workplace laws, and informing another person of his/her employment rights.

Under that original code section, such “unfair practices” included: (a) requesting more or different documents than required by the federal I-9 form; (b) refusing to honor any I-9 listed documents that reasonably appear to be genuine; (c) misusing the federal E-Verify system to check employment status in a manner not required by law; and (d) threatening to contact or contacting immigration authorities except if and as required by federal authorities. That original law also barred an employer from threatening to file or filing a false police report.

Assembly Bill (AB) 2751, effective January 1, 2015, expands Labor Code 1019 to bar an employer threat to file -- or an actual employer filing of -- a false report or complaint to any state or federal agency. Section 1019 also now enables an employee subject to unfair immigration-related practices to bring a civil suit against the alleged offending employer and to collect damages and attorney fees if successful.Labor Code section 1024.6 had previously prohibited businesses from discriminating or retaliating against an employee for having updated or attempting to update “his or her personal information” unrelated to the person’s job skills or qualifications. However, that statute did not specify just what sort of “personal information” was protected. AB 2751 will now clearly transform 1024.6 into an unfair immigration practices statute, barring employers from terminating, discriminating against or retaliating against an employee for having updated or attempting to update “his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.”These laws do not absolve employers from ensuring all required I-9 procedures are in place to confirm and document each worker’s authority to work within the United States. However, in California at any rate, companies are barred from seeking to penalize or intimidate a worker for speaking out about workplace practices through employer actions or threats aimed at that worker’s immigration or citizenship status.

For more information concerning an employer’s obligations under California or federal employment laws, contact attorney Tim Bowles, Cindy Bamforth or Helena Kobrin.

New Labor Code section 6401.8 requires state government, no later than July 1, 2016, to adopt required standards for acute general care and acute psychiatric hospitals plans to prevent workplace violence.

The new statute is from Senate Bill (SB) 1299, approved by Governor Brown September 29, 2014. According to Senator Alex Padilla, the bill’s sponsor, “violence in health care settings is a continuing national problem, and the risk of workplace violence is a serious occupational hazard for health care workers … In 2007, nearly 60% of all nonfatal assaults and violent acts occurred in the health care and social assistance industry… The fatal injury rate between 2003 and 2007 was twice the average rate for workers in all industries combined.”

The two April 20, 2014 stabbings of nurses in separate UCLA hospitals, Olive View and Harbor, likely gave further impetus to the bill.

Section 6401.8 directs Occupational Safety and Health Standards Board published rules on each affected hospital’s adoption of a workplace violence prevention plan “to protect health care workers and other facility personnel from aggressive and violent behavior.” Those standards are to include among other things:

• Plan Must Cover All Staff: A requirement that the prevention plan “be in effect at all times in all patient care units, including inpatient and outpatient settings and clinics on the hospital’s license”
• Workplace Violence Definition: A minimum definition of “workplace violence” that includes the “use of physical force against a hospital employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury” and any incident involving the use of a firearm or other dangerous weapon (emphasis supplied).
• Training: Required violence prevention, procedure and reporting training for all staff, including provision of “critical incident stress debriefing or employee assistance programs”
• Response: Incident response and investigation protocols
• Documentation: Required hospital documentation of all violent incidents, to be retained for five years; and
• Reporting: Required hospital reporting to the state of all violent incidents. The report will be required within 24 hours if the incident resulted in injury, involved a firearm or other dangerous weapon or “presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel.”

Web Posting Requirement: Section 6401.8 also requires Division of Occupational Safety and Health (DOSH or Cal OSHA), beginning January 1, 2017, to annually post a report on its Internet Web site containing information regarding violent incidents at hospitals. The Cal OSHA report is to include:

• the total number of reports from covered hospitals
• which specific hospitals filed them
• the outcome of any related inspection or investigation
• the citations levied against a hospital based on a violent incident; and
• recommendations of the division on the prevention of violent incidents at hospitals

The New Law’s Shortcomings: While the new law commendably emphasizes the importance of building adequate security for workers and will make public the statewide extent of incidents in covered facilities for the first time, it presumes the rate and severity violent attacks will continue. There is no direction to determine the actual sources of such violence in order to address reduction or elimination of these perils altogether.

Section 6401.8 also lacks any initiative to address the prospect of violence from co-workers or from intruders in covered facilities. It also specifically exempts required regulation of state-run hospitals altogether, including psychiatric and prison facilities, arguably the sites of the greatest levels of violent attacks against health care personnel.

December 31, 2014

As relayed a year ago in California’s Expanded Immigration-Related Protections, this state provides the most stringent retaliation protections for immigrant workers in the country. Effective January 1, 2015, California employer obligations in this area are increased again.

Labor Code section 1019 has prohibited any California business from engaging in “unfair immigration-related practices” in retaliation for a worker’s exercise of certain rights, including employee submission of a good faith complaint over his/her employer’s labor practices, seeking information on whether the employer is in compliance with workplace laws, and informing another person of his/her employment rights.

Under that original code section, such “unfair practices” included: (a) requesting more or different documents than required by the federal I-9 form; (b) refusing to honor any I-9 listed documents that reasonably appear to be genuine; (c) misusing the federal E-Verify system to check employment status in a manner not required by law; and (d) threatening to contact or contacting immigration authorities except if and as required by federal authorities. That original law also barred an employer from threatening to file or filing a false police report.

Assembly Bill (AB) 2751, effective January 1, 2015, expands Labor Code 1019 to bar an employer threat to file — or an actual employer filing of — a false report or complaint to any state or federal agency. Section 1019 also now enables an employee subject to unfair immigration-related practices to bring a civil suit against the alleged offending employer and to collect damages and attorney fees if successful.

Labor Code section 1024.6 had previously prohibited businesses from discriminating or retaliating against an employee for having updated or attempting to update “his or her personal information” unrelated to the person’s job skills or qualifications. However, that statute did not specify just what sort of “personal information” was protected. AB 2751 will now clearly transform 1024.6 into an unfair immigration practices statute, barring employers from terminating, discriminating against or retaliating against an employee for having updated or attempting to update “his or her personal information based on a lawful change of name, social security number, or federal employment authorization document.”

These laws do not absolve employers from ensuring all required I-9 procedures are in place to confirm and document each worker’s authority to work within the United States. However, in California at any rate, companies are barred from seeking to penalize or intimidate a worker for speaking out about workplace practices through employer actions or threats aimed at that worker’s immigration or citizenship status.

For more information concerning an employer’s obligations under California or federal employment laws, contact attorney Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
December 31, 2014

New Labor Code section 6401.8 requires state government, no later than July 1, 2016, to adopt required standards for acute general care and acute psychiatric hospitals plans to prevent workplace violence.

The new statute is from Senate Bill (SB) 1299, approved by Governor Brown September 29, 2014. According to Senator Alex Padilla, the bill’s sponsor, “violence in health care settings is a continuing national problem, and the risk of workplace violence is a serious occupational hazard for health care workers … In 2007, nearly 60% of all nonfatal assaults and violent acts occurred in the health care and social assistance industry… The fatal injury rate between 2003 and 2007 was twice the average rate for workers in all industries combined.”

The two April 20, 2014 stabbings of nurses in separate UCLA hospitals, Olive View and Harbor, likely gave further impetus to the bill.

Section 6401.8 directs Occupational Safety and Health Standards Board published rules on each affected hospital’s adoption of a workplace violence prevention plan “to protect health care workers and other facility personnel from aggressive and violent behavior.” Those standards are to include among other things:

• Plan Must Cover All Staff: A requirement that the prevention plan “be in effect at all times in all patient care units, including inpatient and outpatient settings and clinics on the hospital’s license”
• Workplace Violence Definition: A minimum definition of “workplace violence” that includes the “use of physical force against a hospital employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury” and any incident involving the use of a firearm or other dangerous weapon (emphasis supplied).
• Training: Required violence prevention, procedure and reporting training for all staff, including provision of “critical incident stress debriefing or employee assistance programs”
• Response: Incident response and investigation protocols
• Documentation: Required hospital documentation of all violent incidents, to be retained for five years; and
• Reporting: Required hospital reporting to the state of all violent incidents. The report will be required within 24 hours if the incident resulted in injury, involved a firearm or other dangerous weapon or “presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel.”

Web Posting Requirement: Section 6401.8 also requires Division of Occupational Safety and Health (DOSH or Cal OSHA), beginning January 1, 2017, to annually post a report on its Internet Web site containing information regarding violent incidents at hospitals. The Cal OSHA report is to include:

• the total number of reports from covered hospitals
• which specific hospitals filed them
• the outcome of any related inspection or investigation
• the citations levied against a hospital based on a violent incident; and
• recommendations of the division on the prevention of violent incidents at hospitals

The New Law’s Shortcomings: While the new law commendably emphasizes the importance of building adequate security for workers and will make public the statewide extent of incidents in covered facilities for the first time, it presumes the rate and severity violent attacks will continue. There is no direction to determine the actual sources of such violence in order to address reduction or elimination of these perils altogether.

Section 6401.8 also lacks any initiative to address the prospect of violence from co-workers or from intruders in covered facilities. It also specifically exempts required regulation of state-run hospitals altogether, including psychiatric and prison facilities, arguably the sites of the greatest levels of violent attacks against health care personnel.

Tim Bowles
December 31, 2014

Effective January 1, 2015, California Assembly Bill 1897 makes employers that hire workers from staffing agencies automatically liable for wages and workers’ compensation violations by the staffing agencies. Labor unions promoted this new law. The California Chamber of Commerce opposed it.

AB 1897 makes it easier for a worker who alleges underpayment of wages from a staffing agency to seek payment from the employer utilizing that worker’s services. Previously, that worker would have to file suit to prove the agency and business were true “co-employers” under potentially complicated rules on rights of control of the employee’s labor. Under AB 1897, no such proof will be needed. Indeed, if a staffing agency fails to pay proper wages, including overtime, to a worker, that person can go directly to the employer using the worker’s services to demand payment even without filing suit.

Under AB 1897, a California employer must also now pay for work comp coverage in the event that its staffing agency fails to do so.

The law does not apply to companies with fewer than 25 employees (including those hired from staffing agencies) nor to employers using five or fewer temporary workers from a staffing agency. It also does not apply to legitimately exempt-from-overtime workers, to government employers or to certain industries, including specific motor carriers, cable, telephone and satellite providers. Also excluded are certain organizations or programs covered by collective bargaining agreements, bona fide non-profit community programs servicing workers, and motion picture payroll services companies.

This new law of course requires business’s greater diligence in hiring a known and reputable staffing company that maintains the required workers compensation and that complies fully with all California compensation laws, including proper wage documentation and overtime calculations. Such due diligence could include:

• Request and review of the staffing agency’s documented financial solvency and ability to pay its workers
• Requiring the agency to regularly provide payroll records sufficient to confirm compliance with applicable laws on paystub information and compensation calculations
• Request and review of the staffing agency’s applicable workers’ compensation policy
• Written agreement the agency’s carrier will promptly deliver notice to the business of any impending or actual change in coverage; and
• Regular confirmation with the affected workers that the agency is paying them properly.

An employer’s higher accountability standards also increase the necessity to include sound indemnification provisions in staffing agency contracts, committing the agency to reimburse the business for any expense incurred (including attorney fees) by that agency’s failure to meet its payroll or work comp coverage obligations.

A worker must give an employer 30 days’ notice if it intends to file a civil lawsuit against the employer under this statute. Such civil suit may include “class actions,” in which one or more workers may carry the similar claims of multiple co-workers, or “representative actions,” which also seek to include multiple co-workers under special procedures and criteria. For more on class actions in California, see “Contractor Missclassification . . . Class Action?”

If you have any questions about the new law, Tim Bowles, Cindy Bamforth and Helena Kobrin of our firm would all be pleased to answer your questions.

Effective January 1, 2015, California Assembly Bill 1897 makes employers that hire workers from staffing agencies automatically liable for wages and workers’ compensation violations by the staffing agencies. Labor unions promoted this new law. The California Chamber of Commerce opposed it.

AB 1897 makes it easier for a worker who alleges underpayment of wages from a staffing agency to seek payment from the employer utilizing that worker’s services. Previously, that worker would have to file suit to prove the agency and business were true “co-employers” under potentially complicated rules on rights of control of the employee’s labor. Under AB 1897, no such proof will be needed. Indeed, if a staffing agency fails to pay proper wages, including overtime, to a worker, that person can go directly to the employer using the worker’s services to demand payment even without filing suit.

Under AB 1897, a California employer must also now pay for work comp coverage in the event that its staffing agency fails to do so.

The law does not apply to companies with fewer than 25 employees (including those hired from staffing agencies) nor to employers using five or fewer temporary workers from a staffing agency. It also does not apply to legitimately exempt-from-overtime workers, to government employers or to certain industries, including specific motor carriers, cable, telephone and satellite providers. Also excluded are certain organizations or programs covered by collective bargaining agreements, bona fide non-profit community programs servicing workers, and motion picture payroll services companies.

This new law of course requires business’s greater diligence in hiring a known and reputable staffing company that maintains the required workers compensation and that complies fully with all California compensation laws, including proper wage documentation and overtime calculations. Such due diligence could include:

• Request and review of the staffing agency’s documented financial solvency and ability to pay its workers
• Requiring the agency’s standard provision to the business of the payroll records sufficient to confirm compliance with applicable laws on paystub information and compensation calculations
• Request and review of the staffing agency’s applicable workers’ compensation policy
• Written agreement the agency’s carrier will promptly deliver notice to the business of any impending or actual change in coverage; and
• Regular confirmation with the affected workers that the agency is paying them properly.

An employer’s higher accountability standards also increase the necessity to include sound indemnification provisions in staffing agency contracts, committing the agency to reimburse the business for any expense incurred (including attorney fees) by that agency’s failure to meet its payroll or work comp coverage obligations.

A worker must give an employer 30 days’ notice if it intends to file a civil lawsuit against the employer under this statute. Such civil suit may include “class actions,” in which one or more workers may carry the similar claims of multiple co-workers, or “representative actions,” which also seek to include multiple co-workers under special procedures and criteria. For more on class actions in California, see “Contractor Missclassification . . . Class Action?”

If you have any questions about the new law, Tim Bowles, Cindy Bamforth and Helena Kobrin of our firm would all be pleased to answer your questions.

Helena Kobrin
December 30, 2014

Starting January 1, 2015, employers (regardless of where located) must pay wages of at least $11.05 per hour to each employee who performs work in San Francisco (including temporary and part-time employees). The minimum wage requirement, set forth in the November 4, 2014 San Francisco Minimum Wage Ordinance, applies to adult and minor employees who work two or more hours per week.

Employees who assert their rights to receive the City’s minimum wage are protected from retaliation and may file a civil lawsuit against their employers for any violation of this ordinance. The City can investigate possible violations, shall have access to payroll records, and can enforce minimum wage requirements by ordering reinstatement, payment of back wages, and penalties.

Affected employers must also post an updated San Francisco Minimum Wage notice where employees can read it easily.

For further information, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.

California employers should be familiar with this state’s new paid sick leave law (Assembly Bill [AB] 1522) before they plan, budget and forecast for the coming year.

As covered in Mandatory Paid Sick Leave for California Employees, AB 1522 requires each California employer, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), to provide paid sick leave benefits to any temporary, part-time and full-time employee once he or she has worked for that company in California for 90 or more days.

The California Labor Commissioner’s office recently published its anticipated set of frequently-asked questions (“FAQs”) (and answers) on employer AB 1522 obligations. Among other aspects of the law, the material addresses:

• eligibility for paid sick leave;
  
• how qualifying employees accrue and take paid sick leave;
  
• whether employer policies can provide more paid sick leave than the law requires;
  
• for what purposes an employee can take paid sick leave;
  
• how to pay and track earned and taken sick leave; and
  
• what other related information companies must provide to their employees

For additional assistance understanding and implementing AB 1522, please contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.