Episode 142: Labor Law Proposals to Keep an Eye On

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, Employment Law Council and the Labor Law helpline manager here with the California Chamber of Commerce. And I have a treat for us today, an episode not focused squarely on COVID 19. I know while we're out there still grappling with the ever evolving rules regarding workplace safety due to COVID 19, the California legislature has actually returned back to work in the first week of January, and it's had its eyes on so much more this year than just COVID 19 laws. To give a sneak peek into the current proposals circulating the legislature in the early part of this session, we are pleased to welcome back to the podcast Ashley Hoffman, Cal Chambers own policy advocate for employment and labor issues. They thank you for joining us today, Ashley.

Thanks, Matt. It's good to be back.

It doesn't feel like that long ago we were sitting here talking about the new laws that went into effect January 1st. But here we are, ready to start talking about yet another wave of new laws. Now, before we get started, I did want to make clear that what we're talking about today are just current proposals and bills and things that are circulating in the legislature, and they're not actually new laws that are yet to take effect or will be taking effect at this point. Right, Ashley?

Correct? Yes, that's correct.

All right, so let's dive in. I know we have a few proposals that we wanted to highlight today, and Ashley's really going to be the star of this show as she's our policy advocate. She's been working extensively on all of this stuff. One thing I wanted to start with was this concept of bereavement leave. Here in California, we don't have a required bereavement leave. Employers can maintain their own unpaid or paid bereavement leave policy, whatever it is that they want to do. But it sounds to me in conversations with you that the legislature is looking more towards a mandate. Now, Ashley, why don't you give us a little taste of what it's looking like at this point.

Thanks, Matt. Last year, Assemblymember Evan Lowe did introduce a proposal to mandate bereavement leave for employers. And, you know, we had labeled that bill as a job killer. We had a lot of concerns about placing yet another leave on to small business and really just all businesses in general given the financial devastation that's been caused by the pandemic. So we've been working quite, you know, closely with their office, and they should be and is my understanding that they'll be putting forth some amendments soon that will mandate bereavement leave, but it will be unpaid. It will be for five days and it will apply to all employers with five or more employees, similar to sifra. You know, it will qualify. If you have a family member, the same list as is in sifra, pass away. If an employer feels like they need to request documentation, they will have the ability to do that. And most importantly, it will not be in the Labor Code. So it will not be something that is subject to paga, which is always something that we love to see.

Yeah. Excellent. And so I guess we'll look forward to seeing how those amendments play out as we go through the session this year. But employers should be aware that this may be coming down the pipe. Now, was there anything in the bill about if an employer has their own bedman leave policy already?

Great question. Yes, that was something that was very important to our members. As you mentioned, a lot of people do already have their own voluntary policies. So the bill does allow for credit for any existing policy. So if you already offer five days, not a problem. If you offer two, you're going to have to increase that up to five. If you offer some paid days already, the bill basically just says that you would have to follow that policy and give them those paid days. If that gets you up to less than five days, the remaining days can be unpaid per this new law.

Excellent. Well, stay tuned, everybody, on the status of that one. Moving to another bill that involves the Fair Employment and Housing Act. You know, those of us who have five or more employees are subject to the Fair Employment and Housing act as it pertains to harassment, discrimination, retaliation based upon protected classes and protected activities. Right. Someone's age, race, religion, marital status and the like. The Fair Employment Housing act more recently was amended involving things like.

Gender identity, gender expression, sexual orientation and the like. Is the legislature looking at updating these protected classes classes as it pertains to FEHA? Ashley?

Yes, there is a bill, AB 1119. It was one of our job killer bills last year that was actually held in the Appropriations Committee. So that will be up again in the coming weeks this month when the Appropriations Committee meets again. And what it does is it adds a new protected class called family responsibilities. And our big concern there is it's quite broadly defined. It would include anyone that has a child under the age of 18 as well as any anyone that has someone living with them that they provide some sort of care for, not limited to a family member. So as we all know, you know, when you have really broad categories under feeha, like age or gender. Right. A lot of times in litigation, we see those claims just tacked on. They're easy to plead. It applies to quite a large section of the population. I've almost gone to trial over some of these, even if the facts, you know, maybe don't necessarily actually relate to them. And so, you know, that's our big concern here, is that this is going to kind of open the floodgates for litigation because it's going to encompass so many different employees.

And so when we talk about that protected class issue, this means that employers can't be motivated by the fact that they have these family responsibilities, right, Ashley?

Right, that's correct. And I do want to note, you know, originally the bill had a piece in there having to do with accommodating folks, employees with their family responsibilities. We've heard there might be a proposed amendment to remove that section. But even with it removed, you know, I think there's going to be some pressure on employers to accommodate. You know, if someone asks you, you know, I need time off, right. For caring for a child or something, you know, is an employee, even though the reasonable accommodation piece is technically not in there, would it be discrimination to deny that? You know, these are a lot of kind of gray questions that will come with this law if it were to pass. That, again, just reinforces our concern about litigation and what an employer's obligation would be.

Yeah, and that's something I hear on the helpline all the time, is, you know, we want to move on from somebody in their employment because of some performance issues, attendance issues and the like. But we're very concerned about unlawful termination. And I think that point's well taken that we're going to feel the need to accommodate them because we really want to show we're not motivated by their family responsibilities. And I think that's a huge concern for us in litigation. So we really look forward to seeing how that bill shakes down through the session moving forward. There's some talk about paid sick leave rules in a couple different facets, as we are aware. We had the Healthy Workplaces Healthy Families act that was passed in 2014 and took effect in 2015, which is commonly known as our California paid sick leave law. You know, the three days, 24 hours we have to give every year, we've had that in place for several years now. Ashley, are they looking to do anything new with that regular paid sick leave law?

There have been several proposals over the past few years to increase that minimum number to five days or 40 hours. We saw it again last year with AB 995 by assembly member Gonzalez, another bill that we had labeled as a job killer, really, as a result of the effects of the pandemic on the business community. Assemblymember Gonzalez actually did resign at the beginning of this session. And so I'm not sure what will happen to that bill. Under the rules. Someone would have to come in and basically request from the Assembly Rules Committee permission to take over that bill because it did not make it out of the first House last year. It would also have to be passed by the end of this month. So definitely kind of running out of time there. So it's not clear yet, you know, whether that will move forward or not. It's something we're watching, you know, very closely. But even if it doesn't happen this year, I would expect this conversation, especially in light of the pandemic, you know, to research and people to ask, you know, should we be increasing three days up to five days?

All right. Speaking of the pandemic, you know, we can't avoid it at this time. Now, what we had last year, of course, was a COVID 19 supplement supplemental paid sick leave that Wynt expired September 30th of last year, and nothing's replaced it. Is there any work at this point, especially in light of what's going on on the ground in the in the pandemic, to revive or create a different supplemental paid sick leave program?

Yes. Last weekend the governor did issue a press release ahead of his budget proposal calling on the Legislature to enact a new batch of COVID paid sick leave. So that's been the big topic of conversation this week. You know, what that would look like the administration has made pretty clear wouldn't just be a blanket extension of last year's SB95. A lot of groups, you know, have chimed in as to what they think is appropriate to be in there. So a lot of conversations happening around that right now. A lot of groups are really pushing for this to be enacted very quickly. So we do expect, you know, to see probably language in print on this within the next week or so. And once that is in print, a pretty vote to get this enacted as soon as possible. There's also some discussions that once again, it would be retroactive. Different groups are pushing for different deadlines as far as that goes. So not sure what the final proposal will look like.

All right. So that's one that employers really need to stay tuned with and stay in touch with us. And really that's something that's really on the mind of employers is, you know, how can they stay up to date on these proposals as they make it through the session? How can they stay involved in the legislative process if they want their voices heard? What do you advise for members to do there?

Always reach out to us. It's easy for us to come in and say we have concerns or the business community has concerns, but we absolutely want to hear from members, you know, about what their real world, practical experiences are. It's always very helpful, of course, always monitoring the HR California website and all of the blogs that we run as well, to get the latest up to date information about how these bills are progressing and what that might mean, you know, as far as needing to change policies or things like that as we go along through the legislative session.

Wonderful. Well, Ashley, it's always a treat to have you on to discuss what's happening there at the Capitol in the world of employment law. So thank you for joining us today.

Thank you so much for having me. It's always great.

And thank you listeners for joining us on the workplace. Please comment, share and subscribe to Cal Chambers podcast by visiting calchamber.com.