Episode 156: Update on CalChamber Efforts to Secure Changes to Important Legislation

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law Helpline Manager and Employment Law Council with the California Chamber of Commerce. Hello everybody. We are back with Workplace legislative updates. As you all likely know by now, each legislative session begins in January and ends with the governor's deadline to sign bills passed by both houses of the Legislature. As we enter the month of August, we are in that last month that any legislation may be presented to the governor for signature. And since we're nearing the finish line, we wanted to circle back on key legislative proposals that are still moving forward but may have substantially changed over the course of the year since we last discussed them with you. To highlight the stretch run, we have invited back a truly dynamic duo with Cal Chambers Policy Unit Ashley Hoffman and Robert Moutrie to discuss the significant legislation that is still pending with the Legislature. Ashley Rob, welcome back to the show.

Thanks, Matt.

Glad to be here. And I'd just like to point out in this dynamic duo, I think I am, Robin.

You both have put in a lot of work over this legislative session, as we know here on the podcast. And so to kind of highlight these bills, actually, we want to start with you and more specifically Senate Bill 1162. This bill was authored by Senator Limon, is one we have discussed a couple of times here on the podcast this year and and now is even receiving some national media coverage. So, Ashley, can you kind of describe what SB 1162 proposes and how it will affect California employers as it currently stands?

Sure. So when we first discussed this bill on the podcast a number of months ago, the bill had three parts to it. It has dwindled down to two. So the first section makes some changes to the DFEH reports, which was a reporting requirement started just in 2021 for employers with 100 or more employees. It will make it so that in addition to the data you currently report, you also will have to report pay data for any contractors that you use. If you use more than 100 contractors, you will have to report the mean and median wage for each of those job categories, the 10 job categories broken down by race and gender. And then also the bill seeks to publish all of those reports identifiable by company online.

The second section of the bill is mirrored after similar Colorado, New York and Washington statutes that would require employers to put a salary range on every job posting. The Section 2 also says that if a current employee asks what the salary range is for their position, the employer must provide that information.

Okay, Ashley, so we've designated this bill as a job Killer, one of those designations we give bills that have a significant impact on the employer community here in California. Can you elaborate on the issues that we have with this bill at this moment?

Sure. So the reason the bill has a job killer tag is section one, specifically that provision about publishing these reports online. While I think the bill overall, of course, is very well intentioned, trying to address the wage gap that exists. You know, I think there's a big misunderstanding as to what these reports actually show and versus how they're going to be used. So these reports are really a broad look at your workforce. You are grouping together workers in very broad categories, as broad as professionals. So if you think of like a hospital, that would encompass nurses, but it would also encompass someone who just graduated college and starting in your HR department. It's, it's truly a broad category. But we would be putting out there to the public what the average pay is. Right. Broken down by race and gender in these different categories. And it's going to give off the impression that that means there's some sort of wrongful conduct going on when that's, that's not true. And this report, as stated by the eeoc, is never intended to actually compare similar workers. It does not take at all into account any of the factors allowed by the California's Equal Pay act or, you know, anti discrimination statutes. So our concern is that this data is going to be held out in the media, in the legislature, or in court by plaintiff's attorneys as, you know, proof of wrongful conduct, when in fact that's not true. So that, that really is a provision that we are very, very concerned about. And I think honestly there, there's a little bit of a lack of understanding, I think, as to what these reports show versus how this bill is being promoted.

Yeah, I think that's such an important point, Ashley. We talk about on the help line and in our seminars when we talk about equal pay issues that, yes, you know, we have an obligation to pay workers with substantially similar job duties the same wages, regardless of their demographics. But there are a lot of bona fide factors and qualifications that can justify these pay disparities that I think you're right, the reports won't show that and will lead to this misleading indication that employers are engaging in pay disparity practices that may be unlawful. We'll look forward to hearing more on that one as we get through the legislative session. Ashley. Rob, I'm going to bring you onto the playing field. Let's discuss AB 2188, which was authored by Assemblymember Quirk. Now this is another bill that we have discussed previously on the podcast. Can you describe again for the listeners and refresh what AB 2188 proposes? Because what we talked about previously, it's very different now than what it is today.

Absolutely. Glad to Matt. As you said, AB 2188 is one of those bills that we've seen some substantial changes over the course of the year and since our last discussion, discussions to back up to the beginning of the year in January, as it was first introduced by a similar quirk, the bill would have effectively prohibited all employers from using pre employment drug testing for marijuana as well as created potential federal conflict of law issues for those employers compelled to do federal drug testing related to marijuana. And also you would have seen a compelled change as the type of testing used instead of hair and urine, you would have to change away from that. And that was the early version which we labeled a job killer and fought really hard against. So thankfully we've been successful in getting some of that changed. But for this to make sense, I want to give some brief context and I think this will probably be helpful for some of the listening professionals as to what kind of the new regime of drug testing will be if this passes. So we're all familiar with urine and drug testing and you can do urine and drug testing for marijuana on three occasions. Pre hire testing, reasonable suspicion based testing if you have an event such as an accident suggests impairment or, or last for certain positions you can do randomized testing if it's a safety sensitive position. That's a complicated area which I'm sure you get helpline questions about all the time. But so mechanically, those testing were usually conducted with hair or urine which would show impairment or I should say which would show usage of marijuana going back potentially months. Now though some employers really like that data. The issue for proponents and for selling quirk was this would show marijuana usage far from the workplace.

Right.

You could use marijuana on a weekend, on a vacation, it might still show up. So the push here from them had been to try to address that. And now thankfully, due to a lot of engagement with selling, our quirk's office and a lot of back and forth negotiations, we've really gotten this bill cleaned up to a place that we were able to remove the job killer tag. So now what this bill will do is first, it will no longer prohibit pre employment drug testing. That was a huge thing for, I think for all employers in California. We got that addressed. Second, it will no longer create federal, federal conflict issues. So what it will do now is it will force employers to use a new type of test, saliva testing, which has a shorter window of detection to really show relatively recent usage. We're talking last 24 to 48 hours. But you can still do testing at all the same times you would have done it. You can still do pre employment. There's no changes to any of those pieces. And lastly, the big tweak we're able to get that's important is this change to saliva testing won't go into effect until January 1, 2024. That's important because there actually was a shortage of supply of saliva testing. Well, I say was there is due to the supply chain crisis and also due to the fact that the majority of employers don't use it. There really is a shortage presently. And we were able to talk to some of our clerk's office and explain that to them and show that to them. So that this change, we're going to leave time for the market to catch up before it goes into effect in 2024. But overall, really a huge amount of improvement in that bill, though we remain opposed. A huge amount of improvement, which is why it's come off the job killer list.

And you know, Rob, something in AB 2188 that we've discussed before is the creation of a new protected class under the Fair Employment and Housing Act. Essentially, somebody who engages in off site, off duty medical marijuana use becomes a protected class. What does that mean for employers in this situation?

That is the one remaining point and probably the big point that's keeping us in an opposed position.

Right.

If an employee has written it as a protected class under feeha, that's potential litigation risks for employers. Right. And what this does is it adds away from the workplace use of marijuana as something under feeha, which could generate concerns there. So what this really means for employers is you want to try not to. You don't want to discriminate based on someone doing conduct outside of the workplace related to marijuana. Obviously that's not something that we think should have been in the bill. We don't like adding issues to feehaw like that. But that is something employers want to be aware of if it passes.

Yeah. And this still doesn't stop us as employers from enforcing our alcohol and drug free workplace policies. Right. This doesn't give an employee carte blanche to come in high to the workplace. Right, Rob?

Absolutely not. I realized I was shaking my head and the listeners at home can't see that. So no, it does not change our ability to enforce alcohol and Drug free workplace laws, policies, I should say.

Excellent, Rob. Thank you. Ashley, back to you on another bill we've discussed previously this year, SB 1044, this one authored by Senator Durazzo. SB 1044 is that kind of emergencies bill and workers being able to kind of leave when they feel like it. This conversation that we've had before, I know it's undergone a number of revisions. What does SB 1044 currently propose today?

Yes, this one has also gone through a number of revisions through the year and we actually expect some more amendments likely to come in the Appropriations Committee due to some concerns still being expressed by members of the Assembly. So presently the bill says that you cannot retaliate against a worker who leaves work or does not show up either because there is a declared state of emergency or an emergency condition if they are not coming to work or leaving work because of a state of emergency. The bill basically says once, you know, kind of the immediate threat is over. Right. The worker would be required to return to work. So for example, you can't just say, oh, there was a state of emergency from heat five months ago, that's still in place, but now It's a cool 50 degrees out. You wouldn't be able to rely on that. Right. It actually has to be an immediate threat of serious injury or death to the worker. A lot of what we were looking for as far as amendments and did succeed in getting are exemptions. You know, healthcare workers in hospitals are exempt also like private firefighters, which a lot of insurance companies will contract with for purposes of putting out fires in their insurance buildings or homes, depository institutions, as it of course might be important for folks to be able to access finances during emergencies and a number of others, assisted living facilities, places like that. It does still carry the job killer tag. We do still have a lot of concern about the bill's wording and the fact that it may undermine exist existing health and safety regulations issued by Cal osha, For example, we want to ensure, you know, if a worker cannot come in and try and claim that they need to leave because of the smoke, if the CALOSHA regulation, you know, has explicitly permitted work in that circumstance as long as the employer is meeting the criteria in that regulation. So ongoing discussion still happening with the author's office on that bill. Again, expect to see some further amendments before the end of the session.

Great. Thanks, Ashley. Rob, we're going to finish up with you for this episode and Talk about Bill SB 1149 authored by Senator Leyva. Now, this is a new bill that we've not yet discussed here on the podcast this year, but it looked like it has a pretty significant litigation component. Brought you on really to talk about this bill. So for our listeners, what does SB 1149 propose to do?

Yeah, SB 1149 is one we haven't discussed and is very litigation focused. So we're going to try to keep this as non lawyer as possible as the three lawyers on this podcast discuss it for those of you listening. So SB 1149 is focused on changing what is and is not public around in terms of the documents involved in a lawsuit. And during and after that lawsuit, I think the proponents would sell it as trying to prohibit or to avoid anything being kept secret they think should be public. But what the bill actually does and what our big concern with the bill is is that it makes it much harder to get.

What is called, I would call a run of the mill protective order. That and for context for listeners, what does that mean? What does that, how does that matter in a lawsuit? If you and I are exchanging documents, right, Matt, you know, you're suing me or and I'm defendant, you know, I will ask you for certain documents that support your case. You will ask me for ones that you think build your case so we both can have all the documents we need to show to the jury eventually at trial. Right. And those documents are exchanged under something called a protective order, which both parties will agree to and lays out the basic rules. Most courts have their own examples of this and they provide it to the parties saying, please use this one. Our judges know how to use it. Please follow this. This bill would make it very, very, very, very hard to get what is day to day normal on protective order in a case these days by very, I mean like 95% of cases you couldn't get one. Whereas in now protective orders are used incredibly commonly just to make sure that we exchange documents evenly and quickly and efficiently. And that's things like if I say a document's confidential and you disagree, you take it to the judge who work it out. This bill would outlaw those protective orders and thereby make it very hard for companies in litigation to protect what they view as trade secret or confidential information. And that's really a huge concern if you're, you know, in a company that deals with anything you don't want shared publicly. You know, everything from customer lists to coding, you know, if you're a tech company, a code piece, if you're a bio company, right. A formula or a patent, all those pieces you may have to exchange in litigation so the other party can see them, but you may not want them released publicly. And that's what this bill really creates a huge concern for us about and the reason for the opposition.

All right, well, Ashley and Rob, it sounds like you'll be the typical end of session whirlwind for you both. Thank you both for coming onto the show and taking the time to go over these key proposals that are left in this year's session.

Our pleasure. Thanks for having us, Matt.

Thanks, Matt.

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