2019 California Labor & Employment Law Updates
(November 19, 2019) - The 2019 California legislative session was another busy year with numerous employment-related bill signed into law. Notably, the legislature enacted many statutes to combat sexual harassment in both the public and private sectors. California employers should take note of these new laws to ensure that their policies and procedures are in compliance.
The following is a summary of the important new laws affecting employers and employment litigation. All laws are effective January 1, 2020, unless otherwise noted.
Wage and Hour
AB 5 - Worker Status: Employees and Independent Contractors
AB 5 amends Section 3351 of, and adds Section 2750.3 to, the Labor Code, and amends Sections 606.5 and 621 of the Unemployment Insurance Code.
This bill clarifies the application of Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (Dynamex) by providing that a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person performs work that is outside the usual course of the hiring entity’s business, and the person is customarily engaged in an independently established trade, occupation, or business.
Further, AB 5 exempts specified occupations from the application of Dynamex, subject to an additional test, including: licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry. If a court rules that the 3-part test cannot be applied, then the determination of employee or independent contractor status shall be governed by the test adopted in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello).
This bill also redefines the definition of “employee” for purposes of unemployment insurance provisions, to include an individual providing labor or services for remuneration who has the status of an employee rather than an independent contractor, unless the hiring entity demonstrates that the individual meets all of specified conditions, including that the individual performs work that is outside the usual course of the hiring entity’s business.
Because this bill would increase the categories of individuals eligible to receive benefits from, and would result in additional moneys being deposited into, the Unemployment Fund, the bill would make an appropriation. However the bill’s provisions do not permit an employer to reclassify an individual who was an employee on January 1, 2019, to an independent contractor due to the bill’s enactment.
AB 170 - Worker Status: Employees and Independent Contractors
AB 170 amends Section 2750.3 of the Labor Code to exempt a newspaper distributor working under contract with a newspaper publisher and a newspaper carrier working under contract, either with a newspaper publisher or newspaper distributor, from the Dynamex provisions added by AB 5. This bill is contingent on the enactment of AB 5 of the 2019–20 Regular Session, and will last until January 1, 2021.
AB 267 - Employment of Infants: Entertainment Industry
AB 267 amends Sections 1286 and 1308.8 of the Labor Code to expand the certification requirements for infants to cover any employment in the entertainment industry, beyond existing law, which requires specified certification from a physician and surgeon in order for an infant under the age of one month to be employed on any motion picture set or location. AB 267 will incorporate additional changes to Section 1308.8 of the Labor Code proposed by AB 1622, to be operative only if this bill and AB 1622 are enacted, and this bill is enacted last.
AB 673 - Failure to Pay Wages: Penalties
AB 673 amends Section 210 of the Labor Code by creating an additional penalty for any person who fails to pay the wages of any employee provided in Section 201.3, 204, 204b, 204.1, 204.2, 204.11, 205, 205.5, and 1197.5. These penalties are entirely independent and in addition to any other penalty provided in Section 210. The initial violation is one hundred dollars ($100) for each failure to pay each employee. Any subsequent violation or any willful or intentional violation, carries a penalty of $200, plus 25% of the amount unlawfully withheld.
Further, the bill authorizes the affected employee to bring an action to recover specified penalties against the employer as part of a hearing held to recover unpaid wages, and also removes the authority for the Labor Commissioner to recover civil penalties in an independent civil action. Further, the employee can only recover statutory penalties under these provisions, or enforce civil penalties under a specified provision of the Labor Code Private Attorneys General Act of 2004 (PAGA), for the same violation, but cannot recover from both.
AB 1518 - Student Athletes: Contracts
AB 1518 amends Sections 18895.2, 18897.6, and 18897.73 of , as well as adds Section 18897.74 to, the Business and Professions Code. The bill would authorize a student athlete to enter into a contract with an athlete agent without losing their status as a student athlete, as long as the contract complies with the policy of the student athlete’s educational institution and the NCAA, and is authorized by the student athlete’s educational institution. These contracts would include a provision that the contract would terminate if the student chose not to seek employment with a professional sports team or organization and instead chose to return to school.
The bill also authorizes an athlete agent, or their representative, to provide money or any other thing of benefit or value to the student athlete if it is authorized by their educational institution and complies with the policy of the educational institution and the NCAA. It also requires said agents who provide money or any other thing of value to file an itemized report of those payments with the athletic director, or their designee, or the educational institution. The bill does not prevent an educational institution from adopting and enforcing stricter policies on athlete-agent interactions and solicitations.
AB 1554 - Employers: Dependent Care Assistance Program: Notice to Employees
AB 1554 adds Section 2810.7 to the Labor Code by requiring an employer to notify an employee who participates in a flexible spending account of any deadline to withdraw funds before the end of the plan year. These flexible spending accounts include, but are not limited to, a dependent care flexible spending account, a health flexible spending account, or an adoption assistance flexible spending account. Notice shall be by two of the following forms, and one of them may be electronically: (1) electronic mail communication, (2) telephone communication, (3) text message notification, (4) postal mail notification, (5) in-person notification.
AB 1768 - Prevailing Wage: Public Works
AB 1768 amends Section 1720 of the Labor Code as it relates to prevailing wage. Existing law defines “public works” for the purposes of requirements regarding the payment of prevailing wages, the regulation of working hours, and the securing of workers’ compensation for public works projects. The bill expands the definition of “public works” to include work conducted during site assessment or feasibility studies, as well as specifying that preconstruction work (such as design, site assessment, feasibility studies, and land surveying) is part of a public work even if no further construction work is constructed. The bill would also only incorporate the additional changes to Section 1720 proposed by AB 520, if AB 520 is enacted before this bill.
SB 142 - Employees: Lactation Accommodation
SB 142 amends Section 1030, 1031, and 1033 and adds Section 1034 of the Labor Code and provides requirements for an employer: to develop, implement and make available a lactation accommodation policy; to provide a lactation room or location; and to provide access to a sink or refrigerator. This bill would deem failure to provide break time or adequate space to express milk to constitute a failure to provide a rest period. Remedies would be available for employees discharged, discriminated against, or retaliated against based on exercising these rights. Though still required to make reasonable efforts to provide a lactation space, employers with fewer than 50 employees could seek an exemption upon a showing of undue hardship or expense.
SB 206 - Pay to Play Act, Collegiate Athletics: Student Athlete Compensation and Representation
SB 206 adds Section 67456 Section 67457 of the Education Code, and prohibits California colleges and universities (except community colleges) and other organizations with authority over intercollegiate athletics from providing compensation to a prospective student athlete or preventing a student athlete from earning compensation based on the student’s name, image, or likeness. This bill would also prohibit athletic associations or conferences from preventing participation for those colleges and universities that allow student athlete compensation for their name, image, or likeness. This bill would allow student athletes to obtain professionally licensed representation. This bill would prohibit the revocation of scholarships, but would require that any contract for compensation not conflict with an athlete’s team contract.
SB 271 - Employment: Motion Picture Production Workers
SB 271 amends Sections 602 and 603 of the Unemployment Insurance Code and provides that motion picture production workers would be eligible for California unemployment compensation if some of the services are performed in the state and the worker’s residence is in the state. The bill would also provide that a California resident motion picture production would be engaged in temporary or transitory work outside of the state for the purposes of unemployment compensation, if the worker is dispatched from the state and intends to return to California after the out-of-state employment.
SB 671 - Employment: Payment of Wages: Print Shoot Employees
SB 671 amends Sections 203, 203.1, 220, and 201.6 of the Labor Code and provides that limited duration “print shoot employees” are immediately due and entitled to wages earned and unpaid at the time of discharge. As an urgency statute, this bill would take effect immediately.
SB 688 - Failure to Pay Wages: Penalties
SB 688 amends Section 1197.1 of the Labor Code and provide that if the Labor Commissioner determines that an employer has paid less than minimum wage, the commissioner may issue a citation to recover restitution of the amounts owed. The bill would also require any forfeited undertakings posted to contest a civil penalty from the Labor Commissioner be distributed to the commissioner for appropriate distribution to the affected employee.
Harassment and Discrimination
AB 9 -Employment Discrimination: Limitation of Actions
AB 9 amends Sections 12960 and 12965 of the Government Code to extend the time a person claiming to be aggrieved by an alleged unlawful practice must file a verified complaint with the Department of Fair Employment and Housing, from within one year from the date upon which the unlawful practice occurred, to three years. The bill specifies that the operative date of the verified complaint is the date on which the intake form was filed with the Labor Commissioner. This bill further defines filing a complaint to mean filing an intake form with the department, and specifies that the operative date of the verified complaint relates back to the filing of the form. However, the bill’s provisions are not interpreted to revive lapsed claims.
AB 51 - Employment Discrimination: Enforcement
AB 51 adds Section 12953 to the Government Code and Section 432.6 to the Labor Code to prohibit a person from requiring any applicant for employment, or any employee, to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit. The bill also prohibits an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. This bill makes violations of the prohibitions described above unlawful employment practices under FEHA.
AB 333 - Whistleblower Protection: County Patients’ Rights Advocates
AB 333 amends Section 5550 of, and adds Section 5525 to, the Welfare and Institutions Code to establish whistleblower protections specifically for county patients’ rights advocates. The bill will apply prohibitions against retaliation by an employer to a local contracting agency under these provisions, and establish a private right of action to enforce the rights and protections afforded to county patients’ rights advocates.
AB 543 - Education: Sexual Harassment: Written Policy: Posters
AB 543 amends Section 231.5 of, and adds Section 231.6 to, the Education Code requiring every educational institution in the state to provide a written policy on sexual harassment as part of an orientation program conducted for continuing pupils. AB 543 further requires each schoolsite in a school district, county office of education, or charter school, serving pupils in grades 9 through 12 to create a poster that notifies pupils of that policy, and to prominently and conspicuously display the poster in each bathroom and locker room at the schoolsite. The bill also authorizes the poster to be prominently and conspicuously displayed in public areas at the schoolsite and requires the poster to be age appropriate and culturally relevant, be displayed in English and any primary language spoken by 15% or more of the pupils enrolled at the schoolsite, be no smaller than 8.5 by 11 inches, use at least 12-point type, and display certain information pertaining to that policy, including the rules and procedures for reporting a charge of sexual harassment.
AB 547 - Janitorial Workers: Sexual Violence and Harassment Prevention Training
AB 547 amends Sections 1420, 1425, 1429, 1429.5, 1431, and 1432 of the Labor Code to require the Division of Labor Standards Enforcement (Division) to prohibit employers who provide janitorial services from conducting business without a registration, and to issue 2 types of registrations, one for registrants without employees and one for registrants with employees. It further prohibits the Division from approving a registration if the employer does not include in their written application both the name of any subcontractor or franchise servicing contracts affiliated with branch locations and the name of any subcontractor on franchise servicing the contracts.
This bill further requires the Director of Industrial Relations to convene a training advisory committee to assist in compiling a list of qualified organizations and peer trainers that employers would be required to use to provide biennial training, and make the list of qualified training organizations available online by January 1, 2021.
AB 1510 - Sexual Assault and Other Sexual Misconduct: Statutes of Limitations on Civil Actions
AB 1510 amends Section 340.16 of the Code of Civil Procedure, and will take effect immediately. The bill clarifies that it is not necessary that a criminal prosecution, or other proceeding, have been brought as a result of the sexual assault in order for the statute of limitations on civil damage recovery to begin running. However, the bill also revives claims for damages of more than $250,000 arising out of sexual assault or inappropriate sexual behavior committed by a physician which occurred at a student health center between January 1, 1988 and January 1, 2017 or that otherwise would be barred prior to January 1, 2020 due to the statute of limitations. These actions could be commenced between January 1, 2020 and December 31, 2020.
The bill also requires attorneys representing these claimants to file a declaration with the court, under penalty of perjury, that the attorney has reviewed the facts of the case and consulted with a mental health practitioner and that the attorney has a good faith belief that the claim is over $250,000. The bill also provides that the state need not reimburse local agencies under this act.
AB 1607 - Gender Discrimination: Notification
AB 1607 amends Sections 51.6 and 55.63 of the Civil Code by requiring a city or county that issues local business licenses to provide written notification in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean of certain rights and obligations the business has when the business license is issued or renewed. This bill applies to all cities and commences January 1, 2021.
The bill also requires the Department of Consumer Affairs to develop a written notification of the above provisions in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean, and requires the notification to be available for download from the department’s website by October 1, 2020. The city can increase the fee for a business license in order to cover the reasonable cost of providing this notice. The department must also provide an informational pamphlet by October 1, 2020 that is available in English, Spanish, Chinese, Tagalog, Vietnamese, and Korean.
AB 1820 - Personal Rights: Civil Liability and Enforcement
AB 1820 amends Section 12930 of the Labor Code and provides authorization for the Department of Fair Employment and Housing to bring civil actions for violations of certain federal civil rights laws, including the Civil Rights Act of 1964, the Americans with Disabilities Act of 1990, and the Fair Housing Act.
SB 188 - CROWN Act: Discrimination: Hairstyles
SB 188 amends Section 212.1 of the Education Code, and Section 12926 of the Government Code, and provides that the definition of race under existing California law includes traits historically associated with race, such as hair texture and certain defined protected hairstyles. Protected hairstyles include, but are not limited to, braids, locks, and twists.
SB 229 - Discrimination: Complaints: Administrative Review
SB 229 amends Section 98.74 of the Labor Code and provides that the Labor Commissioner, within 10 days of a final citation against an employer for taking an adverse action against an employee or applicant engaged in protected conduct, must file the final citation with the superior court for judicial enforcement, unless an informal hearing to challenge is requested by the employer. This bill would require the court to immediately enter judgement and allow the Labor Commissioner to file a petition to show cause why injunctive or nonmonetary relief should not be ordered. This bill would also require that the bond to challenge a decision and order of the Labor Commissioner include the amount of penalties and other monetary relief.
SB 530 - Construction Industry: Discrimination And Harassment Prevention
SB 530 amends Section 12950.1 of the Government Code and Section 3073.9 of the Labor Code, and adds Chapter 4.3 to Division 1 of the Labor Code, and states that a building and construction trades apprenticeship program can provide prevention and harassment programs, and must maintain records and issue certificates of completions for any such programs. The bill would authorize any employer to approve an employee who satisfied the sexual harassment training requirement within the past two years and is hired under a collective bargaining agreement. The bill would also require the Division of Labor Standards Enforcement to produce recommendations for construction industry specific harassment prevention policies and standards.
SB 778 - Employers: Sexual Harassment Training: Requirements
SB 778 amends Section 12950.1 of the Government Code and states that, by January 1, 2021, an employer with five or more employees must provide two hours of sexual harassment trainings for supervisory employees every two years, and one hour of trainings for nonsupervisory employees every one year. This bill also provides that trainings must be held within 6 months of hiring for new nonsupervisory employees and for employee assuming a supervisory role. The bill also states that any employer who provided trainings in 2019 is not required to provide additional trainings for two years.
Leave of Absence/Sick Leave
AB 706 - Community Colleges: Academic Employees
AB 706 amends Section 87782 of the Education Code by allowing an academic employee of a community college district to transfer the total amount of leave of absence for illness or injury to which the employee is entitled when the employee moves to a second community college district. This only applies if the employee has been an employee of that district for a period of one school year or more. Although the bill allows the board of governors to adopt rules and regulations prescribing how this process occurs, they are barred from adopting any policy or rule that requires the transferring employee to waive any part or all of the leave of absence that the employee may be entitled to.
AB 1223 - Living Organ Donation
AB 1223 amends Sections 89519.5 and 92611.5 of the Education Code, Section 19991.11 of the Government Code, Section 1510 of the Labor Code, and adds Section 10110.7 and 10233.8 to the Insurance Code. Existing law, titled the Michelle Maykin Memorial Donation Protection Act, requires private employers to permit an employee to take a leave of absence with pay, not exceeding 30 business days in a one-year period, for the purposes of organ donation. Public employers are also required to permit an employee to take a similar paid leave of absence for organ donation if the employee has exhausted all available sick leave.
This bill would require either a public or private employer to grant an employee an additional unpaid leave of absence, not exceeding 30 business days in a one-year period, for the purpose of organ donation. The bill still requires a public employee to first exhaust all available sick leave before taking unpaid leave. Further, the bill prohibits any life or disability insurance policy, or long-term care insurance policy, from limiting coverage, charging a different rate, or otherwise discriminating against people solely upon the status of that person as a living organ donor, and would require an insurer to subject a living organ donor to the same actuarial or other standards as persons who are not living organ donors.
AB 1748 - California Family Rights Act: Flight Crews
AB 1748 amends Section 12945.2 of the Government Code by affecting the Moore-Brown-Roberti Family Rights Act, or the California Family Rights Act. The CFRA makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child or care for themselves or a family member. An “eligible employee” under this act is one with more than 12 months of service with the employer and at least 1,250 hours of service with the employer within the last 12 months.
The bill amends the 1,250 hours of service requirement as applied to airline flight deck or cabin crew employees by adding a list of eligibility requirements that they can meet instead: (A) the employee has 12 or more months of service with the employer, (B) the employee has worked or been paid for 60% of the applicable monthly guarantee, or the equivalent annualized over the preceding 12-month period, and (C) the employee has worked or been paid for a minimum of 504 hours during the preceding 12-month period.
SB 542 - Trauma Treatment Act; Workers’ Compensation
SB 542 adds and repeals Section 3212.15 of the Labor Code and provides that, until January 1, 2025, the term “injury” for the purposes of workers’ compensation of certain firefighters and peace officers includes post-traumatic stress developed while in service. The bill applies to injuries occurring on or after January 1, 2020.
AB 203 - Occupational Safety and Health: Valley Fever
AB 203 adds Section 6709 to the Labor Code requiring construction employers engaging in specified work activities or vehicle operation in counties where Valley Fever is highly endemic, to provide awareness training on Valley Fever to all employees annually, as well as before an employee begins work that is reasonably anticipated to cause substantial dust disturbance. The training must cover specific topics and must be included in the employer’s injury and illness prevention program training, or as a standalone training program. The training is not required during the first year that the county is listed as highly endemic, but will be required in subsequent years.
AB 1400 - Employment Safety: Firefighting Equipment: Mechanics
AB 1400 adds and repeals Section 77.7 of the Labor Code by requiring the Commission on Health and Safety and Workers’ Compensation, in partnership with the County of Los Angeles and any other relevant labor organizations, to submit a study to the Legislature, the Occupational Safety and Health Standards Board, and the Los Angeles County Board of Supervisors on the risk of exposure to carcinogenic materials and incidence of occupational cancer in mechanics who repair and clean firefighting vehicles.
This report would be filed on or before January 1, 2021 and, at a minimum, shall include: (1) site visits at a representative sample of facilities where firefighting is cleaned and repaired, (2) interviews and surveys with current and former mechanics of firefighting equipment regarding the frequency of exposure to potential carcinogens, use and availability of safety equipment, and knowledge or experience of cancer incidence among current or former mechanics, and (3) a measurement of the current levels of carcinogenic material exposure to mechanics who repair and clean firefighting vehicles in facilities included in the study.
AB 1805 - Occupational Safety And Health
AB 1805 amends Section 6302 and 6309 of the Labor Code by expanding the definition of “serious injury or illness” for the purposes of reporting occupational injury to the Division of Occupational Safety and Health for investigatory purposes. The definition of “serious injury or illness” would be changed by removing the 24-hour minimum time requirement for qualifying hospitalizations and explicitly including the loss of an eye as a qualifying injury. The bill also removes “loss of a body member” from the definition and, instead, includes amputation. The bill also eliminates the exclusion of injury caused by certain violations of the Penal Code and narrows the exclusion of injuries caused by accidents occurring on a public street or highway to include those injuries occurring in a construction zone.
The bill also redefines “serious exposure” to include exposure of an employee to a hazardous substance in a degree or amount sufficient to create a realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure. It also establishes that a serious violation exists when the division determines that there is a realistic possibility that death or serious injury could result in the actual hazard created by the conditions alleged in the complaint.
Discovery and Proceedings
AB 749 - Settlement Agreements: Restraints in Trade
AB 749 adds Chapter 3.6 (commencing with Section 1002.5) to Tile 14 of Part 2 of the Code of Civil Procedure by prohibiting an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person from working for the employer against which the aggrieved person has filed a claim (including any parent company, subsidiary, division, affiliate, or contractor of the employer). “Aggrieved person” is defined in the bill as a person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.
The bill, however, would allow an employer and an aggrieved person to agree to end a current employment relationship, or to prohibit or otherwise restrict the aggrieved person from obtaining future employment with the employer, if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault. It also does not require an employer to continue to employ or rehire a person if there is a legitimate, nondiscriminatory or non-retaliatory reason for terminating or refusing to rehire the person.
AB 800 - Civil Actions: Confidentiality
AB 800 adds Section 367.3 to the Code of Civil Procedure by permitting a person who is a participant in the address confidentiality program and a party to a civil action to proceed in the action using a pseudonym and to exclude and/or redact other identifying characteristics of the person from all pleadings and documents filed in the action. Any party to the action would be further required to use the pseudonym at proceedings open to the public, and would also be required to exclude and/or redact other identifying characteristics of the plaintiff from any documents filed with the court. The pseudonym will be either John Doe, Jane Doe, or Doe. The protected party will have to file a confidential information form with the court which includes their name and any other identifying information they would like to be excluded or retracted.
AB 1735 - Evidence: Privileges: Human Trafficking Caseworker-Victim Privilege
AB 1735 amends Section 1038, 1038.1, and 1038.2 of, and adds Section 1038.3 to, the Evidence Code by expanding the victim-caseworker evidentiary privilege that exists in trafficking cases. Under existing law, a human trafficking victim may refuse to disclose, or may prevent another’s disclosure of, a confidential communication made to a human trafficking caseworker, although there are circumstances under which a court may compel the disclosure of information (including if the information constitutes relevant evidence of the facts and circumstances involving a crime allegedly perpetrated against the victim).
The bill expands the privilege by allowing the human trafficking victim’s current caseworker to also claim the privilege, even if that caseworker was not the victim’s caseworker at the time the confidential communication was made. The bill also expands the definition of terms like “holder of the privilege” for this purpose and to ensure that human trafficking caseworkers receive proper training on confidential communications.
SB 41 - Civil Actions: Damages
SB 41 adds Section 3361 to the Civil Code and provides for a prohibition on the reduction of damages based on race, ethnicity, or gender when past, present, or future damages are awarded for lost earnings or impaired earnings capacity in a personal injury or wrongful death case.
SB 616 - Enforcement of Money Judgments: Exemptions
SB 616 amends Sections 699.520, 699.540, 704.070, 703.520, 703.550, 704.220, 704.225, and 704.230 of the Code of Civil Procedure and provides, after September 1, 2020, a claim of exemption for the enforcement of a money judgment must be filed within 15 days if the judgment debtor is personally served, or 20 days if served by mail. The bill would exempt from levy any money provided to the judgment debtor by the Federal Emergency Management Agency. The bill would also, with certain exceptions, exempt a judgment debtor’s deposit account from garnishment in an amount equal to or less than the minimum basic standard of adequate care for a family of four.
SB 707 - Arbitration Agreements: Enforcement
SB 707 amends Section 1280 and 1281.96, and adds Sections 1281.97, 1281.98, and 1281.99 of the Code of Civil Procedure and requires the court to impose a monetary sanction on a drafting party of an arbitration agreement who materially breaches the agreement. This bill would provide that if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date, then the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration. Also, in an employment or consumer arbitration in which the drafting party is required to pay certain fees and costs during the pendency of an arbitration proceeding, this bill would provide that if those fees or costs are not paid within 30 days after the due date, the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration.
The bill also provides that if the drafting party materially breaches after compelled arbitration, then the employee or consumer can unilaterally withdraw from arbitration and proceed in court. If the employee or consumer decides to proceed in arbitration, then the drafting party is required to pay reasonable attorneys’ fees and costs related to the arbitration.
The bill would also require a private arbitration company to report aggregate demographic data of all arbitrators.
AB 644 - State Teachers’ Retirement: Compensation
AB 644 amends Sections 22115, 22119.2, 22119.3, 22121, 22138.5, 22701, 22708, 22710, 23102, 23301, 24209, 24209.3, 24211, 24309, 25024, 27201, and 27202 of, and adds Sections 22104.8 and 24203.8 to, and repeals Sections 22510, 22511, 22512, 22513, and 22514 of, the Education Code to revise the definition of compensation earnable for the purposes of the State Teachers’ Retirement System (STRS) to be the sum of the average annualized pay rate, as defined, paid in a school year, divided by the service credited for that school year and the remuneration paid in addition to salary or wages.
The bill also requires that when an employer certifies that a member’s employment has been terminated, said certification must be in a format prescribed by the system and would specify that the application for a termination benefit must be received at the system’s headquarters office.
AB 672 - Public Employees’ Retirement: Disability Retirement: Reinstatement
AB 672 adds Section 21233 to the Government Code to prohibit a person who has retired for disability from being employed by any employer without reinstatement from retirement if the position is the position from which the person retired, or if the position includes duties or activities the person was previously restricted from performing at the time of retirement, unless an exception applies. The bill would further require that, if a person retired for disability is employed without reinstatement, the employer provide the nature of the employment and the duties and activities to be performed.
AB 988 - Teacher Credentialing: Out-Of-State Prepared Teachers: Education Specialist Credential
AB 988 amends Section 44274.2 of the Education Code by authorizing the Commission on Teacher Credentialing to allow an out-of-state applicant for an education specialist credential to demonstrate their area of concentration based on 2 years of experience in California while the candidate holds a preliminary credential. This would change the existing rule, in which an out-of-state applicant for an education specialist teaching credential had their area of concentration determined by the Commission by the special education program completed out of state.
AB 1033 - State Employment: New Employees: Information
AB 1033 adds Section 19057.2 to the Government Code by requiring an appointing power, prior to offering state employment to an applicant, to provide the applicant with an explanation of the benefits of state service, both general and particular to the applicable position. This explanation will take the form of a summary of the applicable civil service position, with salary ranges and steps within them, as well as information describing where on the internet website of the Department of Human Resources the applicant may find information on (1) benefits afforded by membership in the Public Employees’ Retirement System, and (2) benefits and protections provided to public employees by the State Civil Service Act. Further, the bill requires that a formal offer of employment contain a written memorialization document acknowledging that the applicant received these materials before accepting employment.
AB 1353 - Classified Employees: Probationary Period
AB 1353 amends Section 45113 of the Education Code by shortening the maximum length of a prescribed period of probation for classified employees from not exceeding one year to not exceeding six months or 130 days of paid service, whichever is longer. Existing law required the governing board of a school district to prescribe written rules and regulations governing the personnel management of the classified service whereby classified employees are designated as permanent employees of the school district after having served the probation period. This bill would not apply to public school employers that had entered into a collective bargaining agreement prior to January 1, 2020, if that collective bargaining agreement conflicts with this bill, until the expiration or renewal of said collective bargaining agreement.
AB 1452 - State Teachers’ Retirement
AB 1452 amends Sections 22501, 22502, 22503, 22504, 22601.5, 22602, 22604, 26401, and 26403, as well as repeals and adds to Section 26400, of the Education Code in four ways.
First, existing law requires a person who is hired by a State Teachers’ Retirement System employer to perform creditable service on a full-time basis to become a member of the Denied Benefit Program, but prohibits aggregating creditable service in more than one position for the purpose of determining mandatory membership. This bill prohibits aggregating creditable service in more than one position on a part-time basis for 50% or more of the time the employer requires for a full-time position.
Second, existing law prescribes the employment characteristics of people for whom membership in the Denied Benefit Program or the Cash Balance Benefit Program may be required, excluded, or elective. This bill would recast the provisions to provide for membership start dates as of the first day of employment, or the date of the employer’s governing board’s action to provide the program. The bill also prescribes requirements for those serving on a part-time daily basis, and makes other clarifying changes to the characteristics.
Third, under existing law, a person employed by a school district or county office of education to perform part-time service of less than 50% is excluded from the Denied Benefit Program and the Cash Balance Benefit Program. It also excludes a person employed as a substitute teacher who performs less than 100 complete days of creditable service. This bill provides more specificity with regard to how the Cash Balance Benefit Program applies to employees.
Finally, existing law authorized certain employees participating in the Cash Balance Benefit Program to elect coverage under the federal Social Security Act or an alternative retirement plan, but also required members of the Cash Balance Benefit Program to terminate coverage under that program. This bill specifies that an employee’s election for coverage under the Social Security Act or an alternative retirement plan does not preclude the employee from electing to participate in the Cash Balance Benefit Program at a later date, if still eligible.
AB 332 - Peace Officers: Training
AB 332 adds Section 13510.06 to, and repeals Section 13510.05 of, the Penal Code to require the Commission on Peace Officer Standards and Training to submit a report to the Legislature and Governor with specified data relating to students’ completion of training at academies for peace officers, and the availability of remedial training, including the number of students who received one or more opportunities for remedial training for a learning domain, as well as a review of academies’ practices regarding remedial training, and a discussion of whether the commission finds that minimum standards for an appropriate level of remedial training should be established.
AB 332 makes information that identifies the testing results of a particular student confidential, and prohibits that information from being released to the public unless otherwise subject to disclosure. This bill also makes legislative findings to the effect that existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
AB 378 - Childcare: Family Childcare Providers: Bargaining Representative
AB 378 amends Sections 8431 and 8432 of, amends the heading of Article 19.5 (commencing with Section 8430) of Chapter 2 of Part 6 of Division 1 of Title 1 of, adds Sections 8430.5, 8431.5, 8432.1, 8432.5, 8433, 8434, 8434.5, 8434.6, 8435, 8435.5, 8436, 8437, 8438, 8438.1, 8438.2, 8439, 8439.5, 8439.6, 8439.7, and 8439.8 to, and repeals and adds Section 8430 of, the Education Code, amends Sections 6253.21, 6254, and 19815.4 of the Government Code, and amends Section 1596.86 of the Health and Safety Code.
AB 378 authorizes family childcare providers to form, join, and participate in the activities of provider organizations and to seek the certification of a provider organization to act as the representative for family childcare providers on matters related to childcare subsidy programs pursuant to a petition and election process overseen by the Public Employment Relations Board or a neutral 3rd party designated by the board. This bill further establishes the scope of representation of the certified provider organization, and requires the Governor to meet and confer in good faith with the certified provider organization on all matters within that scope of representation. If an agreement is reached, this bill requires the parties jointly prepare a memorandum of understanding which is binding on all state departments and agencies, their contractors and subcontractors, and any political subdivision of the state that are involved in the administration of state-funded early care and education programs.
AB 595 - Community Colleges: Apprenticeship Programs
AB 595 adds Section 79149.25 to the Education Code to authorize a student enrolled in a community college class pursuant to an apprenticeship or internship training program who does not have a social security number to use an individual tax identification number for purposes of any background check required by a class or program established by California Community Colleges, under the administration of the Board of Governors of the California Community Colleges.
AB 1651 - Licensed Educational Psychologists: Supervision of Associates and Trainees
AB 1651 amends sections 4980.03, 4980.43, 4980.44, 4989.14, 4989.54, 4996.20, 2996.23, 4999.12, and 4999.46 of the Business and Professions Code by affecting the Licensed Marriage and Family Therapist Act, the Clinical Social Worker Practice Act, and the Licensed Professional Clinical Counselor Act, which provide for the licensure of the practice of marriage and family therapy, clinical social work, and professional clinical counseling. Under existing law, unlicensed persons in these fields are authorized to perform specified services under the supervision of a healing arts practitioner, considered a supervisor. This bill expands the definition of “supervisor” to include a licensed educational psychologist supervising the provision of educationally-related mental health services. The bill also limits the number of pre-registered post-degree hours that an applicant may credit towards licensure under those provisions to a maximum of 1,200 hours.
The bill also affects the Educational Psychologist Practice Act, which provides for the licensure of the practice of educational psychology, and allows the board to deny a license, or suspend or revoke a license, if a licensee is guilty of unprofessional conduct. The act expands the definition of “unprofessional conduct” to include a violation of any statute or regulation governing the gaining and supervision of experience of an unlicensed person, including the supervision of an unlicensed person as described above. This bill would also incorporate changes made to Section 4980.03 of the Business and Professions Code proposed by SB 679, but only if SB 679 is enacted before this bill.
SB 698 - Employee Wages: Payment
SB 698 amends Section 204 of the Labor Code and provides that employees of the University of California system be paid on a regular pay day. The bill also provides that those employees paid on a monthly basis must be paid no later than five days after the close of the monthly payroll cycle.
For more information on these new laws, visit our Labor & Employment Practice page to find an attorney in your area.
Eva A. Adel, Law Clerk
Nicholas Baltaxe, Law Clerk
Matthew R. Richardson, Law Clerk
William C. Sung, Partner