Episode 184: California Legislature Passes Bills on Discrimination in Employment, Paid Sick Leave Expansion, Reproductive-Related Bereavement Leave

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. Welcome back, listeners. By the time you are listening to this episode, the California Legislature has concluded its regular business for the year. That means we have much more clarity not only over what new laws may be on the horizon, but also what those new laws will require if Governor Newsom decides to sign the law laws. To discuss the latest developments from the Capitol, we Welcome back Chris McKayley, an attorney and lobbyist with his own firm, Apria and Michele in Sacramento. Chris wrote, works regularly with the Cal Chamber Policy Advocates and also serves as an adjunct professor at McGeorge School of Law. Thanks for joining me today, Chris.

Thanks for having me back, Matthew.

It's always wonderful to have you on. There's so much to jump into today. I actually kind of want to take a moment to cover a couple of housekeeping items. First, because of the number of bills we are discussing this episode, this will actually be part one of a two part podcast. And second, these bills again, are not yet laws as the governor still would need to sign them over the next month to enact them as laws. So stay tuned to this space, another Cal Chamber news post for up to date info on what it is that we're going to have to comply with into the new year. With that, let's go ahead and get started. Chris.

Great.

I have these organized kind of the same way that we organize things when we're doing seminars and webinars around kind of the life cycle of the employee. And so I want to start with hiring practices and protected classes and things around that nature. We've got several bills that look like they're going to add more protected classes under the Fair Employment and Housing act, otherwise known as feeha, as we'll talk about it. And as we talk about these listeners, remember that FEEHA generally prohibits making employment decisions based upon someone's protected class, such as their sex, race, religious beliefs, and so on. And so this list may be expanding. So Chris, let's start with with SB 403. And what does that do in terms of changing our protected class lists under feha?

Well, as you mentioned in your intro, Matthew, the FIHA Statute provides today 18 classifications, you know, race, sex, religion, national origin, etc. So this deals with the issue of caste discrimination, which is particularly prevalent with some communities, particularly out of Southeast Asia and elsewhere. Senator Aisha Wahab, Democrat from the East Bay in her first term in the California Senate, has taken on a bill and an issue that has garnered national attention.

So a lot of the discussion, she originally had planned and introduced the bill to Simply add a 19th category, caste discrimination. Due to amendments to the bill through the process, we're basically going to define ancestry to include caste. And obviously it's defined further in the, in the bill and what is likely to become a statute. But it also includes in section one of the bill what we call legislative findings and declarations, which kind of help provide some definition or some guidance, particularly to the courts in interpreting what did the legislature mean? So they make these findings and declarations. And what they said here is that we think that this is just declarative of existing law. It's just clarifying. And so they specifically said this act shall not be construed to mean that discrimination on the basis of ancestry does not already include discrimination on the basis of lineal descent, heritage, parentage, caste, or any other inherited social status. So, you know, there was a lot of debate when this bill was first introduced whether or not caste discrimination was already prohibited either under ancestry or national origin, which are both separate FEEHA protected classifications. So now what we have is ancestry includes caste. And again, the legislature saying we think this is already existing law, but just to clarify, we're going to specify it in the FEHA statute. It's interesting, Matthew, this past week there have been a group of protests, not protesters, Sorry, supporters of SB 403 who are actually on a hunger strike until the governor signs or I guess, acts on the bill.

Yeah, it's really interesting. And you know, from our perspective there, Chris, there's always so many supporters, as we would call them, out there on the Capitol grounds. It's kind of exciting time around these days when the governor has all the bills. Let's follow up SB403 with actual Cal Chamber job killer bill that is still active, AB524. Now, this one actually substantially changes protected classes under FEEHA, doesn't it? By adding another to one of those 18 that we already have.

Yeah, this would create a 19th called Family Caregiver status.

As you know, Matthew, philosophically, I think a lot of folks in the employer community are always concerned about adding additional protected classifications. And I think that's primarily because, you know, under the FIHA statute, there's substantial liability. Not that anyone, you know, endorses discrimination in employment or housing decisions related to protected classifications. But the potential liability is not just, you know, damages and attorneys fees, but even punitive damages. So there's always some philosophical concern about expanding the FIHA statute. Anyways, to get into the specifics of AB524, there are two issues. The first is the definition of family caregiver status and then who is a family member. What the assembly woman, Buffy Wicks, a Democrat from Oakland, did. This is her third time carrying the bill. It's the first time that the bill cleared the state assembly and obviously the Senate as well, and is now headed to the governor's desk. And what she did was she did clarify the.

Family members. I think one problematic piece is that she took from her Family Leave act the expansion of SIFRA leave, which includes family members but also a so called designated person. And she took that with the same 12 month limitation. And what are we talking about? If your readers recall, I'm sorry, your listeners, Matthew, if they recall.

The SIFRA leave, is that that designated person, you can designate someone every 12 month period, but that can be anybody, not just a family member, a friend, a neighbor, what have you. So we're concerned about that additional designated person, not just family members. The other piece of it is a family caregiver is someone who provides, quote, unquote, direct care to a family member. And so what does direct care mean? What's direct? Is that physically direct or is that like bringing them a meal or something else? In fact, the proponents of the bill, in one of our, I guess I'll call it negotiating sessions, they actually said that they go and play cards with their grandmother once a week and they believe that they are engaged in family caregiving. Look, in my mind, it doesn't matter if that's a good thing, a legitimate thing or not. My concern is if you're going to create this new classification, let's give great specificity so that there's no dispute between the employer and the employee as to what constitutes family caregiving. The other piece of those two words, direct, is care. You know, again, care. I guess in my mind, Matthew, I don't know, I'd be curious to hear what you have to say. But in my mind, care, especially when you're doing protected, you know, anti discrimination, would probably be more like on the medical side. But again, the examples that the proponents gave were, you know, just helping out or again, playing cards, providing a meal once a week, et cetera. Now, again, I'm not going to define for your listeners whether those are good or bad examples of family caregiving. The point is, is that if I view it as more on the medical side, but somebody else views it, bringing a meal to grandma once a week, we could have some pretty significant differences of opinion and potential litigation to define what is that? Direct care.

Yeah. And for me, I look at it the same way that you do, Chris, because in part the way that the bill draws in the same family members that we have under sifra, including, as you said, the designated person, which is a real broad expansion of who a family member is to include people who actually are not family members. But the thing that really interests me about that kind of definition and something for employers to look for if this bill makes it all the way through is if caregiving is as broad as you've explained it or the courts decide it's that way. You're looking at a lot of expanded rights for parents with children that we don't have in the past, where if you have school care issues or childcare issues or some other kind of child related issue that's not medical, a lot of times your rights to leave or your rights to accommodations are limited in terms of what employers have to do with that relationship. But if that becomes the definition of a caregiver, because obviously parents give children their care, they're providing them with meals, they're providing them with shelter, they're transporting them to and from everywhere that they need to go, that becomes a real broad expansion of what of what parents may be now entitled to at the workplace out of concern for these discrimination or retaliation claims. Right. Because again, FEEHA protects you both as a protected class, but also as exercising your rights under FEEHA and being protected from some of these activities. There's one part then.

That I'm kind of driving at here and that we haven't talked about and something that the Chamber has mentioned from the start is this de facto kind of accommodation issue that we might have out of this bill. Chris, what do you think about that?

Well, this was another issue that we raised with the author and the proponents of this measure, which is we all know in the labor and employment world the term reasonable accommodation, it's actually defined in the FEHA statute. There are court decisions, et cetera, on that language. And here they decided to not use that and instead introduce a new term, special accommodation. Now, this may come as a shock to you, Matthew, but it's not defined. So we define reasonable accommodation in the FEHA statute. And again, I think that that is one of those commonly understood terms in the labor and employment world. Now we have this new term, special accommodation, which is not used in FIA nor elsewhere in the Labor Code that I can find, and it's left undefined. And as you know, as a fellow attorney in terms of courts and their use of statutory interpretation principles, the legislature intentionally chooses its words. And so if it uses something different, special accommodation as an example, the courts are going to say clearly they meant something other than reasonable accommodation. So unfortunately, we don't know what reasonable I'm sorry, what special accommodation will mean. And so while they while the proponents and author try to say, oh, don't worry, AB524 doesn't create any special accommodation needs for employees, we're not quite sure what that means. And in fact, does it still require some reasonable accommodation to be granted to someone who is claiming this new family caregiver status?

Yeah. And I think that piece is clearly the most troublesome for me when I talk to members and I talk in webinars and seminars because we can talk all day long, Chris, about reasonable accommodation issues just for long standing protected classes we've had with disabilities and religious beliefs. Those are difficult to navigate for anybody, even attorneys, to make sure that we do that. So I think that piece really raises a lot of issues for employers. Start kind of thinking about and preparing in the event that this bill does end up getting signed. Now, Chris, the last FEEHA bill we will talk about is one that actually passed last year, AB 2188. So please remind our listeners what that does in terms of our list of protected classes starting on January 1st of 2024.

Yeah, this is one of those interesting ones. It was enacted last year.

By the by the legislature. It was authored by now former Assemblyman Bill Quirk out of the East Bay as well. And he's no longer in office. He chose not to run for his final term. Anyways, this also got a lot of attention, but it has what we call a different operative date or a delayed one in this case. So the delayed operative date is actually January 1st, 2024. And so basically it says that.

It'S unlawful, it's an unlawful employment practice under the FEEHA statute for an employer to discriminate against anyone in hiring or firing them or to somehow, you know, penalize or discriminate against them if it involves that individual's use of cannabis off the job and away from the workplace. Now you can still engage in pre employment drug screening, certainly if you have an employer required drug screening test. But you know, it does allow an employer to act on whether the employee is potentially impaired at their work site. But the point is, is it says basically if you're using cannabis outside the workplace, then the employer cannot use that for any.

Discriminatory, if you will, decisions Again, hiring, firing, other disciplinary matters for off site cannabis use.

Yeah, the way I've been explaining this over the last year is that you're, you know, you can't just not like the idea that somebody is using cannabis off site, but you can not like the idea of them using it while they're at work. So really we're keeping our employment decisions, again, motivated, as with all these protected classes we've talked about and potential new ones, legitimate, non discriminatory business reasons for why we make all of our decisions. It's just now there's some things that are making that a little bit more difficult. And again, this is one of those areas. So that really transitions us, well to a bill this year that builds off of AB 2188 and as you mentioned, with the drug screening, those pre employment drug screenings, something we can still do in light of AB 2188, but of course the drug screening has to change starting 11:24 in that you can only use a test that screens for psychoactive metabolites, meaning active impairment. With that. Now, what does SB700 add to our plates as it pertains to background checks for employers?

Yeah, so SB 700 by Senator Steve Bradford, a Democrat from Los Angeles, it basically says that again, under feeha, you know, in the California government code, it says that it's unlawful for an employer to request any information from somebody who's applying for a job regarding their prior use of cannabis.

So here the idea is, you know, if you got it from any sort of criminal history, background or something, that's going to be treated differently, but you're not going to be permitted to ask about it and effectively discriminate against somebody for prior cannabis use. Again, these are all efforts. You know, California was early on to allow medicinal use, and now of course we have adult use, both of which were authorized by the voters. And so now it has gone into the labor world and the workplace rules by effectively saying, we're not going to ask about it and we're not going to discriminate about your use off site. You can't be impaired at work, but what you do outside of work involving cannabis, we're going to leave that alone.

Got it? I think that makes sense, Chris. So let's move away from the world of protected classes and hiring practices and go into everyone's favorite world of leaves of absence. I cannot remember leave of absence ever growing. And you know what, Chris? I can't remember a year and I definitely have not been in this area as long as you have, but I can't remember a year in the last several years or we haven't had some bill or some law that changes or adds or modifies some leave of absence that we have. It's a running joke.

It keeps you busy, my friend.

It does because we have that leave of absence seminar that we do several times a year year and every year we have to update it because of what goes on at the Legislature. So let's talk about the one that's received the most attention, SB616 and its changes to California's mandatory paid sick leave law. Where are we on that one?

Chris well, quick background. Back in 2014, then assembly member Lorena Gonzalez, a Democrat from San Diego who left the legislature early to become the head of the California Labor Federation, was the author of the original paid sick leave. And one of the things that she did was is she said, I want a minimum of three days. I want it to apply to any worker, to any size employer. You know, sometimes as you know, like when we used to have the phase into $15 of the minimum wage, we treated we did a year long delay for small businesses, 25 or fewer, et cetera. So we've done that sometimes in areas of the labor and of the labor code. This was one of those areas where no, everyone got the three and we were one of the I think we were state number four, give or take. But since then, other states have piled on and actually gone beyond three days. And we now have close to a dozen, if not a dozen local jurisdictions, including a number of big cities, Los Angeles, San Diego, San Jose, who have their own paid sick leave ordinances, which of course requires employers up and down this state to operate in multiple jurisdictions or in those specific cities to comply with not just state law but also those local ordinances. So there has been a multi year effort to increase the number of days with then Assemblywoman Gonzales leaving the Legislature, State Senator Lena Gonzalez, a Democrat from Long beach, has taken up the mantra and she introduced a bill at the beginning of this year to increase the number more than twice from three to seven days. Now, at the same time, the employer community recognized that probably at this stage an increase was warranted. So led by Cal Chamber Senator Alvarado Gill, MARIE Alvarado Gill, Democrat from the north part of the state, introduced Senate Bill 881, which unfortunately failed passage. But that would have increased the number of days to five. But put in some guardrails, including things like local preemption, so that we didn't have more local jurisdictions with separate rules. Also that it wouldn't be PAGA enforceable. Unfortunately, we all thought that PAGA would not be a basis for enforcement, that these would be labor commissioner actions. And the Fourth District Court of Appeal in February of this year came in with a decision that was of a different mindset. And the other thing was documentation more than three days. It's interesting that, for example, senators in that first hearing said, well, documentation could be an unreasonable burden. And then they went to cite San Diego and Los Angeles. Well, both of those have documentation requirements after three successive days. And by the way, Matthew, the employer community didn't demand documentation after the third day. They said simply authorizing the law for an employer to ask for it. So today, one to three days, an employer can't ask for it. And as you know, there have been some unfortunate instances where folks have treated paid sick leave as sort of pto, and then when they're actually sick, they don't have any paid sick leave. All of that is to say that, you know, the governor's Department of Finance and others weighed in heavily in opposition. So what happened to SB616? It got amended down from seven days to five. Unfortunately, there are no guardrails. So Paga could still be enforced, utilized for enforcement, at least in the fourth District Court of Appeal. There's no documentation, et cetera, et cetera. So will the governor sign it? This is one of those we're not sure. Just like AB524 that we talked about earlier in the program on a expanding fee off or family caregiver status. Not sure if the governor signs that, not sure if the governor signs SB616. So we'll see what happens. Matthew.

Yeah, and I really appreciate that you brought up PAGA with paid sick leave because that court case that we talked about, where you can now bring PAGA actions with regards to violations of California's paid sick leave is a huge deal because when you have your sick leave policies and you make a mistake anywhere in there, whether it's your cap or your usage or you're asking for doctor's notes or anything, because there's so many rules with it, you have an automatic class action because you've been treating every employee the same way with that same violation. And one area that we always talk about because so many employers still have this, are these one size fits all PTO plans, because there's a provision in the law that allows you to use your existing PTO plan to meet the requirements of the patient sick leave law as long as your PTO plan meets all of the requirements of the sick leave law. And we see that often not occurring because there'll be things where their accrual rates are too low.

Right.

If the current accrual rate under the paid sick leave law is one hour for every 30 hours worked, that works out to about 69 hours over the course of a year for a full time employee, if you never cap it. But what is that? That's almost two weeks of time off for a lot of employers. They're only giving especially entry level employees or new employees one week off, but they're trying to meet the PSL requirements that way. You're already losing there because your accrual rate is too low. And so with the expansion from.

Three days or 24 hours, whichever is greater, to five days or 40 hours, whichever is greater, you're going to run into that risk a lot greater. So again, as we all always talk about until I'm blue in the face, those one size fits all PTO plans are not magic bullets when it comes to meeting the paid sick leave requirements. And really look at exploring splitting those banks. All right, Chris, let's close out this portion of the episode today with one more leave of absence bill. This one actually creates a new leave that will be broadly applicable to our California employers. What new leave does SB18 create?

Yeah, so Senate Bill 848 by Senator Susan Rubio, a Democrat from Los Angeles, is the reproductive related bereavement leave. And basically it says all employers in this state have to provide five days of bereavement leave for a number of different specified reasons, from fertility to adoption and surrogacy, etc. And so it's, as you said, it's a, it's a new protected leave. Sort of characterizes reproductive loss leave generally. Yeah, yeah.

And I found it interesting. It works functionally, you know, like bereavement leave does in terms of you get these five days for each qualifying event, just like, you know, qualifying family member passing away. Under our current bereavement, you have three months to use the five days. You do not have to use all the five days at once. So it functionally works like bereavement. But what I found interesting, Chris, I wanted your take on this is our existing bereavement leave has the ability for the employer to request documentation to substantiate the need for the existing bereavement leave here. But I noticed that 848 doesn't really have that. What are your thoughts on the documentation portion of this?

Well, I think that's always one of those difficult things. I think, you know, my view of documentation, but I think that this is one where the author was not interested in that provision. And I think that there wasn't much sympathy amongst legislators when you're talking generally about reproductive loss leave to impose any more requirement on those who have suffered that reproductive loss. So I think for a number of legislators, they really didn't want to, you know, impose the additional burden, if you will, on those claiming that leave to say, in effect, give us a doctor's note that you really, you know, have an inability to, you know, conceive or that you have lost a child, etc. They didn't want to add that additional burden.

Understood. Well, Chris, I feel like we've covered a lot as it is, but of.

Course, we sure have.

That concludes just part one of this series. Chris, it has been an absolute pleasure to have you back on the show to share your knowledge on these pending bills.

Thanks for having me.

Matthew yeah, thank you so much for joining me today. I look forward to our Part two discussion. And thank you, listeners, for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chambers Podcast by visiting calchamber.

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