Employment Law Update: There Are Many New Employment Laws Going Into Effect In 2014

February 2014

California Grocer, Issue 1

Retail employers should be familiar with most of them, and should pay particular attention to several important employee protections that will take effect in the new year.

Unfair Immigration-Related Practices

On October 11, 2013, Gov. Jerry Brown signed into law AB 263, which is aimed at protecting applicants and employees in the workplace from wage theft, regardless of immigration status. Assembly Bill 263 makes it unlawful for an employer or any other person to engage in, or direct another person to engage in, an unfair immigration-related practice against a person for the purpose or intent to retaliate against that person for exercising any right protected under the California Labor Code or under a local ordinance applicable to employees (e.g., an employee complains that he or she is owed unpaid wages). The bill also creates a rebuttable presumption that an adverse action taken within 90 days of the exercise of a protected right is committed for the purpose of, or with the intent of, retaliation. Thus, employers will be required to put forth evidence to overcome this presumption in the face of a claim alleging such temporal proximity.

Under the new law (Cal. Labor Code section 1019), an “unfair immigration-related practice” includes:

• requesting more or different documents than are required under Section 1324a(b) of Title 8 of the United States Code, or refusal to honor documents tendered pursuant to the same section that on their face reasonably appear to be genuine,
• using the federal E-Verify system to check the employment authorization status of a person at a time or in a manner not required under Section 1324a(b) of Title 8 of the United States Code, or not authorized under any memorandum of understanding governing the use of the federal E-Verify system,
• threatening to file or filing a false police report, or threatening to contact or contacting immigration authorities.

It does not include any conduct undertaken at the express and specific direction of the federal government.

An employee who was retaliated against or otherwise was subjected to an adverse action as set forth above is entitled to reinstatement and reimbursement for lost wages. Of particular note to retailers, the bill further authorizes a court to order the appropriate government agencies to suspend certain business licenses held by the violating employer for prescribed periods of time based on the number of violations.

Grocers and retailers with large workforces should be concerned about this new law, as it provides an additional avenue for applicants and employees to initiate costly litigation.

Criminal Background Checks

California Labor Code section 432.7 already prohibits employers from considering information concerning an arrest or detention that did not result in a conviction or a referral to a criminal diversion program. Senate Bill 530 expands these prohibitions by making it unlawful for employers to ask applicants about criminal records that have been expunged, sealed, or dismissed by a court or to use information relating to such criminal records as a factor in determining any condition of employment.

Employers are exempt from these new prohibitions under four circumstances: (1) the employer is required by law to obtain the information; (2) the job position requires the applicant to possess a firearm; (3) a convicted criminal is prohibited by law from holding the position regardless of whether that crime was judicially dismissed, expunged, statutorily eradicated or ordered sealed; or (4) the law prohibits the employer from hiring an applicant that is a convict.

To prevent liability, grocers and retail employers should review their job applications to ensure that they take into account this new category of criminal records, verify that third-party screening firms and/or contractors are in compliance with the new law, update employee handbooks, if necessary, and train interviewers on the parameters for what may and may not be asked of applicants.

New Protected Class in California: Military & Veteran Status

Prior to the enactment of AB 556, the California Fair Employment and Housing Act (“FEHA”) did not expressly prohibit discrimination based "military and veteran status." Effective January 1, 2014, AB 556 adds "military and veteran status" to the list of categories protected from employment discrimination under the FEHA. "Military and veteran status" is defined as a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, or the California National Guard.

Despite this change, employers may still use military and veteran status for the purpose of awarding a veteran's preference as permitted by federal and state law.

To comply with the FEHA’s new mandates, employers should review any applicable language in their job applications and update their employee handbooks to add military and veteran status as a protected category for purposes of equal employment, discrimination, and harassment policies.

Crime Victims

Under California Labor Code section 230, employers will be required to provide “reasonable accommodations” to victims of domestic violence, sexual assault, or stalking, such as transfers, reassignments, modified schedules, or changed work numbers or work stations, unless the accommodation creates an undue hardship. In determining whether accommodations are reasonable, the employer should consider the circumstances or dangers facing the employee. Employers may require employees to provide a signed, written statement certifying that the accommodation is for the purpose of keeping the employee safe or because of his or her status as a victim. The certification may be a police report, a restraining order or similar court order, or documentation from a licensed medical professional, licensed health care provider, or counselor that states the employee is undergoing treatment resulting from domestic violence or sexual assault. Employers may request this certification be updated every six months.

Section 230.5, a new addition to the California Labor Code, will prohibit employers from discriminating or retaliating against victims of certain serious crimes for taking time off from work to appear in court or any other related proceeding. Such employees may use vacation, personal leave, or compensatory time off that is otherwise available to the employee under the employer’s policies, unless otherwise provided by a collective bargaining agreement, for time taken off for a purpose specified in this section. However, the entitlement of any employee to time off under this section may not be diminished by any collective bargaining agreement term or condition.