Department of Industrial Relations - Overview of New Laws for 2014
Oakland - The California Department of Industrial Relations (DIR) announces the following new laws that take effect either on or after January 1, 2014, affecting California employers and employees. These new laws address labor standards enforcement, occupational health and safety, workers' compensation, and apprenticeship. These laws work to safeguard and reinforce the legitimate businesses and workplaces that drive California's economic growth and foster healthy competition. They also fight the underground economy and seek to create a more level playing field for legitimate businesses. Ultimately, these laws seek to reward enterprising, hard-working employers and employees who play by the rules and do right by each other.
Topics covered in this section
Minimum Wage Increase
Division of Labor Standards Enforcement
Division of Occupational Safety and Health
Division of Workers' Compensation
Division of Apprenticeship Standards
Minimum Wage Increase
AB 10 (Alejo, Chapter 351, Statutes of 2013) - Minimum Wage Increase
- Sets the minimum wage in California at $9.00 an hour, beginning July 1, 2014.
- Increases the minimum wage to $10.00 an hour, beginning January 1, 2016.
Bills related to the Division of Labor Standards Enforcement
Beginning on January 1, 2014, California employers and workplaces will be subject to greater enforcement efforts to combat the underground economy and ensure that legitimate, law-abiding employers and their businesses thrive while holding accountable those that operate unscrupulously.
New laws that provide new employee protections and increase and protect the remedies awarded to employees in wage and other employment-related claims.
AB 263 (Hern�ndez, Chapter 263, Statutes of 2013) Anti Retaliation
- As before, an employer is liable to pay a $10,000 civil penalty for retaliating against an employee making a claim for unpaid wages or any other claim in which the employee was exercising his or her lawful rights. The bill expands the scope of retaliation to include discrimination regarding immigration-related practices, and creates new penalties specific to those practices.
- Makes it unlawful for an employer to engage in "unfair immigration-related practices" with the intent to retaliate against an employee when he or she has exercised a protected labor right.
- Defines "unfair immigration-related practices" as the following employer practices:
- Requesting more or different documents than are required under Section 1324a(b) of Title 8 of the United States Code or refusing to honor documents tendered pursuant to that section which, on their face, reasonably appear to be genuine.
- Using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under Section 1324a(b) of Title 8 of the United States Code, or not authorized under any memorandum of understanding governing the use of the federal E-Verify system.
- Filing or threatening to file a false police report.
- Contacting or threatening to contact immigration authorities.
- Excludes from the definition of "unfair immigration-related practices" conduct undertaken at the express and specific direction or request of the federal government.
- Provides that an employer engaging in "unfair immigration-related practices" within 90 days of an employee exercising his or her rights raises a rebuttable presumption that the employer engaged in "unfair immigration-related practices" for the purposes of retaliation.
- Provides that an employee may bring a civil action against an employer who engages in "unfair immigration-related practices" and can recover, in addition to equitable damages, attorney fees and cost of expert witnesses.
- Provides the following additional penalties for employers that engage in "unfair immigration-related practices
- 1st violation: suspension of a business license for up to 14 days
- 2nd violation: suspension of a business license for up to 30 days
- 3rd violation: suspension of a business license for up to 90 days
- Defines "unfair immigration-related practices" as the following employer practices:
- Prohibits an employer from discharging, discriminating, retaliating, or taking any adverse action against an employee because the employee updated or attempted to update his or her personal information, unless the changes directly relate to a skill set, qualification, or knowledge required for a job.
SB 666 (Steinberg, Chapter 577, Statutes of 2013) Anti Workplace Retaliation
- Similar to AB 263 discussed above.
- States that an individual does not have to exhaust administrative remedies or procedures before bringing a civil action under the Labor Code unless the action specifically requires administrative remedies to be exhausted.
- Provides a cause for suspension, disbarment, or other discipline to attorneys who report or threaten to report the suspected immigration status of a witness or party to a civil or administrative action, or his or her family member, to a federal, state, or local agency because the witness or party exercises or has exercised a right related to his or her employment.
- Makes it unlawful for an employer to report or threaten to report an employee's, former employee's, or prospective employee's suspected citizenship or immigration status, or the suspected citizenship or immigration status of a family member of the employee, former employee, or prospective employee, to a federal, state, or local agency because the employee, former employee, or prospective employee exercised a lawful right.
- Provides the following penalties if an employer engages in the above action:
- The employer's business license can be suspended.
- If the employer holds a professional license issued by the Department of Consumer Affairs, the employer could be subject to disciplinary action by his or her respective licensing board or bureau.
- Provides the following penalties if an employer engages in the above action:
- Makes an employer liable for a $10,000 civil penalty if the employer discriminates, retaliates, or takes any adverse action against an employee who has a claim for lost wages or any other claim in which the employee is exercising his or her lawful rights. This language is identical to the language in AB 263 that provides for the same civil penalty.
- Prohibits an employer or any person acting on behalf of the employer from making a rule, regulation, or policy that prevents an employee from testifying before, or providing information to, any public body conducting an investigation, hearing, or inquiry that discloses a violation of federal or state laws and/or regulations.
SB 496 (Wright, Chapter 781, Statutes of 2013) Whistleblower Protection
- States that claims made for a violation of the California Whistleblower Protection Act do not apply to claims against the state filed with the California Victim Compensation and Government Claims Board and are not subject to the claims presentation requirements of the Government Claims Act.
- Requires the State Personnel Board to render a decision within a reasonable time (not to exceed six months, unless extended by the Board for 45 days) for consolidated matters related to investigating a supervisor suspected of engaging in intimidation against a whistleblower.
- Prohibits an employer from preventing an employee from disclosing information to a person with authority over an employee or to another employee who has the authority to investigate, discover, or correct a violation or noncompliance with federal, state, or local law.
AB 241 (Ammiano, Chapter 374, Statutes of 2013) Domestic Worker Bill of Rights
- Requires a domestic work employee who is a personal attendant, as defined, to be paid an overtime rate of time and a half for any work performed in excess of 9 hours a day or 45 hours a week.
- Requires the Governor to convene a committee composed of personal attendants and employers of personal attendants to study and report the effect of this legislation to the Governor.
AB 442 (Nazarian, Chapter 735, Statutes of 2013) Wages
- Allows the Labor Commissioner to collect liquidated damages on behalf of the employee when issuing a citation for failure to pay minimum wage to an employer.
AB 1386 (Committee on Labor & Employment, Chapter 750, Statutes of 2013)
- Provides that once the Labor Commissioner's order, decision or award relating to wages or other employment-related matters becomes final, the Commissioner may record a lien on an employer's real property.
SB 462 (Monning, Chapter 142, Statutes of 2013)
- Alters the awarding of an attorney's fees and costs in instances when an employee loses a law suit over nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions.
- A court will now only be able to order an employee to pay attorney fees to the opposing party when the court finds that the employee brought the court action in bad faith.
New laws that affect employee contracts
SB 168 (Monning, Chapter 715, Statutes of 2013)
- Provides that a farm labor contractor who is a successor to any predecessor farm labor contractor owing wages or penalties to a former employee is liable for those wages and penalties if one or more of the following criteria are met:
- The farm labor contractor successor shares in the ownership, management, control of the workforce, or interrelations of business operations with the predecessor farm labor contractor.
- The farm labor contractor successor employs in a managerial capacity any person who directly or indirectly controlled the wages, hours, or working conditions of the employees owed wages or penalties by the predecessor farm labor contractor.
- The farm labor contractor successor is an immediate family member of any owner, partner, officer, licensee, or director of the predecessor farm labor contractor or of any person who had a financial interest in the predecessor farm labor contractor
- The farm labor contractor successor uses substantially the same facilities or workforce to offer substantially the same services as the predecessor farm labor contractor.
- A farm labor contractor who has operated with a valid license for at least the preceding three years shall have an affirmative defense to liability for using substantially the same workforce, if all of the following apply:
- The individuals in the workforce were not referred or supplied for employment by the predecessor farm labor contractor to the licensed farm labor contractor asserting this defense.
- The licensed farm labor contractor asserting the defense has not had any interest in, or connection with, the operation, ownership, management, or control of the business of the predecessor farm labor contractor within the preceding three years
- The licensed farm labor contractor asserting the defense has not been determined to have violated any provision of the Labor Code within the preceding three years.
- A farm labor contractor who has operated with a valid license for at least the preceding three years shall have an affirmative defense to liability for using substantially the same workforce, if all of the following apply:
AB 533 (Ian Calderon, Chapter 102, Statutes of 2013) Child Actors
- Provides that if a child actor is only performing as an extra or background performer, an employer is not required to place 15% of the child actor's gross earnings into a trust for the benefit of the child actor.
Changes to public works requirements, ensuring prevailing wage payments for workers on publicly funded construction projects
AB 1336 (Frazier, Chapter 792, Statutes of 2013) Prevailing Wages
- Extends the deadline for the Labor Commissioner and for joint labor-management committees to bring a public works prevailing wage action from 180 days to 18 months.
- Revises the civil penalties that can be awarded in joint labor-management committee actions
- Limits the personal information that will be redacted on copies of certified payroll records when they are furnished to specified trust funds or joint-labor management committees.
SB 377 (Lieu, Chapter 780, Statutes of 2013) Public Works
- Provides that the period for service of assessments be tolled for certain periods of time:
- For the period of time required by the Director of Industrial Relations to determine whether a project is a public work;
- SB 377 specifies that this time period shall be within 60 days from the last notice of support or opposition from any interested party related to that project.
- The Director may extend this time period to up to an additional 60 days if the request is complex.
- Decisions by the Director can be subject to an administrative appeal.
- For the period of time that a contractor or subcontractor fails to timely provide certified payroll records requested by the Labor Commissioner, a joint labor-management committee, or an approved labor compliance program; and
- For the period of time resulting from any delay in notifying the Labor Commissioner of the awarding body's acceptance of a project.
- For the period of time required by the Director of Industrial Relations to determine whether a project is a public work;
SB 776 (Corbett, Chapter 169, Statutes of 2013) Public Works: Prevailing Wage Rates and Employer Payment Credits
- Where prevailing wages are composed of direct payments to employees plus credits for certain other payments made by the employer, this Bill prohibits credit from being granted to employers for payments made to monitor and enforce laws related to public works if those payments are not made to a program or committee established under the federal Labor Management Cooperation Act of 1978.
- Provides that an employer may take credit for prevailing wage employer payments, even if those payments are not made (or costs are not paid) during the same pay period for which credit is taken, as long as the employer regularly makes those payments on no less than a quarterly basis.
SB 7 (Steinberg, Chapter 794, Statutes of 2013) Public Works: Prevailing Wage
- Prevents charter cities from receiving State funding for a construction project if the city has a charter provision or ordinance authorizing contractors to not comply with either the State's or equivalent local prevailing wage requirements.
- A charter city is not disqualified from receiving state funds if the charter city has a local prevailing wage ordinance for all its public works contracts that includes requirements that in all respects are equal to or greater than the requirements imposed by state law and do not authorize a contractor to comply with state law
- Prevents charter cities from receiving State funding for a construction project if the city has within two previous years awarded a public works contract without requiring the contractor to comply with public works prevailing wage laws
- Requires the Director of Industrial Relations to maintain a list of charter cities that may receive and use State funding or financial assistance for their construction projects.
AB 195 (Liu, Chapter 121, Statutes of 2013) Design-Build
- Extends the sunset date on the authorization for counties to use design-build procurement for specified construction projects in excess of $2,500,000 from July 1, 2014, to July 1, 2016.
- The design-build authorization includes a requirement that the county pay DIR to monitor and enforce prevailing wage requirements on the project unless the county has been authorized by DIR to use a previously approved labor compliance program or there is a qualifying project labor agreement.
AB 401 (Daly, Chapter 586, Statutes of 2013) Design-Build
- Authorizes the Department of Transportation to utilize design-build procurement for up to 10 projects on the California Highway system under certain conditions and specifications, and extends the use to regional transportation agencies as well.
- This design-build authorization also includes a requirement to pay DIR to monitor and enforce prevailing wage requirements on the project unless the awarding body has been authorized by DIR to use a previously-approved labor compliance program or there is a qualifying project labor agreement.
AB 797 (Gordon, Chapter 797, Statutes of 2013) Public Works
- Authorizes the Santa Clara Valley Transportation Authority to utilize the Construction Manager/General Contractor project delivery contract method for transit projects, subject to specified conditions, including the requirement to pay DIR to monitor and enforce prevailing wage requirements on the project unless there is a qualifying project labor agreement.
New laws aimed at fighting the underground economy
AB 576 (V. Manuel Perez, Chapter 614, Statutes of 2013) Underground Economy
- Creates a pilot program called the Revenue Recovery and Collaborative Enforcement Team, a multiagency group to analyze and share data on the underground economy, with a focus on tax recovery.
- In his signing message, the Governor directed DIR to head this team and be responsible for the pilot work.
SB 390 (Wright, Chapter 718, Statutes of 2013) Employee Wages
- This bill broadens existing law which criminalizes an employer's failure to remit withholdings from an employee's wages made pursuant to state, local, or federal law.
- Prescribes how recovered withholdings or court-imposed restitution, if any, is forwarded or paid.
AB 1384 (Committee on Labor & Employment, Chapter 308, Statutes of 2013) Garment Manufacturing
- Adds a civil penalty should an a person registered as a garment manufacturer fail to display his or her name, address, and garment manufacturing registration number on the front entrance of his or her business.
AB 1387 (Hernandez, Chapter 751, Statues of 2013) Car Washes
- Increases a car wash employer's bond requirement amount to $150,000, but exempts those that have a collective bargaining agreement in place meeting specified criteria.
New laws that address public employee and volunteer concerns
AB 11 (Logue, Chapter 120, Statutes of 2013) Volunteer First Responders
- Requires employers to permit employees performing emergency duty as volunteer firefighters, reserve peace officers, or emergency rescue personnel to take leaves of absence for fire, law enforcement, or emergency rescue training.
AB 312 (Wieckowski, Chapter 195, Statutes of 2013) Firefighters Apprenticeships
- Clarifies which firefighters on the hiring eligibility list administered by the California Firefighter Joint Apprenticeship Program receive priority.
- Provides that a firefighter's name may remain on the hiring eligibility list for 36 months and removes seniority as a list placement priority.
New laws that address victimized and rehabilitating workers' issues
AB 218 (Dickinson, Chapter 699, Statutes of 2013) Employment Applications
- Prohibits state or local agencies from asking applicants to disclose information regarding a criminal conviction until they determine that the applicant meets minimum employment qualifications for the position. A similar bill, SB 530, prohibits employers from asking applicants to disclose information concerning a conviction judicially dismissed or ordered sealed, or from utilizing it as a factor to determine employment. The employer may request this information under a narrow set of circumstances required by law.
SB 288 (Lieu, Chapter 756, Statutes of 2013) Time Off to Appear in Court
- Prohibits employers from discharging, discriminating or retaliating against employees who are victims of specified offenses for taking time off from work, to appear in court or any proceeding in which the rights of the victim are at issue.
- The offensives specified in this bill are:
- Vehicular manslaughter while intoxicated, as defined in subdivision (b) of Section 191.5 of the Penal Code.
- Felony child abuse likely to produce great bodily harm or a death, as defined in Section 273a of the Penal Code.
- Assault resulting in the death of a child under eight years of age, as defined in Section 273ab of the Penal Code.
- Felony domestic violence, as defined in Section 273.5 of the Penal Code.
- Felony physical abuse of an elder or dependent adult, as defined in subdivision (b) of Section 368 of the Penal Code.
- Felony stalking, as defined in Section 646.9 of the Penal Code.
- Solicitation for murder, as defined in subdivision (b) of Section 653f of the Penal Code.
- A serious felony, as defined in subdivision (c) of Section 1192.7 of the Penal Code.
- Hit-and-run causing death or injury, as defined in Section 20001 of the Vehicle Code.
- Felony driving under the influence causing injury, as defined in Section 23153 of the Vehicle Code.
- Sexual assault as set forth in Sections 261, 261.5, 262, 265, 266, 266a, 266b, 266c, 266g, 266j, 267, 269, 273.4, 285, 286, 288, 288.5, 288a, 289, or 311.4 of the Penal Code.
SB 400 (Jackson, Chapter 759, Statues of 2013) Stalking Victims
- Prohibits employers from discharging, discriminating, or retaliating against employees due to their status as victims of stalking.
- Requires employers to provide reasonable accommodations that may include implementing safety measures or procedures for such victims of domestic violence, sexual assault or stalking.
Bills related to the Division of Occupational Safety and Health
Two significant laws will take effect on January 1, 2014, regarding occupational safety and health.
AB 1202 (Skinner, Chapter 678, Statutes of 2013) Occupational Safety and Health Standards
- Requires the Occupational Safety and Health Standards Board to adopt a standard for handling antineoplastic drugs in health care facilities.
- The standard must be consistent with and not exceed specific recommendations adopted by the National Institute for Occupational Safety and Health for preventing occupational exposures to those drugs in health care settings.
SB 435 (Padilla, Chapter 719, Statutes of 2013) Meal, Rest, and Recovery Periods
- Current law prohibits employers from requiring employees to work during any meal or rest period. This bill adds the term "recovery period" to this provision. A recovery period is a time period mandated by the Occupational Safety and Health Standards Board or the Division of Occupational Safety and Health to allow employees to recover from heat stress in the workplace.
- This prohibition is applicable to any meal, rest or recovery period mandated by applicable statute, regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.
Bills related to the Division of Workers' Compensation
AB 607 (Perea, Chapter 786, Statutes of 2013) Workers' Compensation: Dependent Children
- Provides that a child under the age of 18 is conclusively presumed to be totally dependent on a parent who dies as a result of an occupational injury or illness, regardless of whether another parent was surviving. Prior law did not allow the presumption if the other parent was surviving.
AB 1309 (Perea, Chapter 653, Statutes of 2013) Workers' Compensation: Professional Athletes
- Limits the jurisdiction of California workers' compensation law over out-of-state athletes' cumulative injuries.
- Removes the condition that an out-of-state employer can only be exempt from California workers' compensation law for an employee temporarily in the state if the other state reciprocally exempts California employees and employers from that state's workers' compensation laws, unless certain requirements are met.
AB 1376 (Roger Hernandez, Chapter 793, Statutes of 2013) Medical Treatment Interpreters
- Establishes March 1, 2014, as the compliance date for regulations establishing requirements for qualified interpreters in workers' compensation medical appointments.
SB 146 (Lara, Chapter 129, Statutes of 2013)
- Removes a requirement that a prescription copy must be provided with a request for pharmacy services payment.
- Allows a services provider to enter into a written agreement requiring a prescription copy to accompany a pharmacy service payment, and gives any entity until March 31, 2014, to resubmit pharmacy bills originally submitted on or after January 1, 2013, for which payment was denied because the bill did not include a prescription copy from the treating physician.
AB 1394 (Committee on Insurance, Chapter 309, Statutes of 2013) State Compensation Insurance Fund
- Authorizes the State Compensation Insurance Fund (SCIF) board of directors to appoint a chief medical officer, a chief actuarial officer, a chief claims operations officer, and a chief of internal affairs.
SB 375 (Committee on Labor and Industrial Relations, Chapter 287, Statutes of 2013)
- Corrects erroneous cross-references and makes technical, clarifying, and conforming changes with respect to the following provisions: medical examination interpreter certification, dispute resolution processes for medical and billing disputes, and lien allowance against any sum paid as compensation.
Bills related to the Division of Apprenticeship Standards
AB 86 (Committee on Budget, Chapter 48, Statutes of 2013) Education Budget Trailer Bill
- Revises the role of the State Department of Education in apprenticeship programs, and establishes standards separate from those at community colleges for state funding provision and program reimbursements at high schools, unified school districts, regional occupational centers or programs, and adult schools.
- Requires the Chancellor of the California Community Colleges and the Division of Apprenticeship Standards (within the DIR), with equal participation by specified entities, to develop common administrative practices and cost and services treatment, as well as other policies related to apprenticeship programs by March 15, 2014.
SB 54 (Hancock, Chapter 795, Statutes of 2013) Stationary Sources: Skilled Workforce
- Requires stationary source [e.g., refinery] owners or operators contracting for construction and other related maintenance to require that their contractors and subcontractors use a skilled and trained workforce to perform all work done within apprenticeable occupations in the building and construction trades.
- Additionally these workers must be paid at least a rate equivalent to the applicable prevailing hourly wage rate.
- The bill does not apply to oil and gas extraction operations.
March 2014