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Newly Enacted Statutes and Approved Bills

Revisions to California Minimum Wage (Assembly Bill No. 10)

Gov. Jerry Brown signed a bill on Wednesday, Sept. 25, 2013 that would increase California Minimum Wage to $9 an hour effective July 1, 2014 and $10 an hour effective Jan. 1, 2016.

Domestic Worker Bill of Rights (Assembly Bill No. 241)

Effective January 1, 2014, California Labor Code section 1450, et seq. shall be known and may be cited as the Domestic Worker Bill of Rights. Under this law, “Domestic work employee” means an individual who performs domestic work and includes live-in domestic work employees and personal attendants. The Domestic Worker Bill of Rights, Section 1454 authorizes overtime of one-half times the employee’s regular rate of pay for all hours worked over nine hours in any workday and for all hours worked more than 45 hours in the workweek.  Domestic Work employee does not include babysitter under 18 years of age employed as a babysitter for a minor child, person employed as a casual babysitter, person employed by a licensed health facility, inter alia.

Prevailing Employer Can Recover Attorney’s Fees only for Bad Faith Claims

California Labor Code Section 218.5 has been amended to provide that a prevailing employer may only recover attorneys’ fees if a trial court finds that the employee brought the wage action in bad faith.

The New Amended California Labor Code Section 218.5 reads as following:

§ 218.5. Actions for nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions; award of attorney’s fees to prevailing party; exception; application of section

(a) In any action brought for the nonpayment of wages, fringe benefits, or health and welfare or pension fund contributions, the court shall award reasonable attorney’s fees and costs to the prevailing party if any party to the action requests attorney’s fees and costs upon the initiation of the action. However, if the prevailing party in the court action is not an employee, attorney’s fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith. This section shall not apply to an action brought by the Labor Commissioner. This section shall not apply to a surety issuing a bond pursuant to Chapter 9 (commencing with Section 7000) of Division 3 of the Business and Professions Code or to an action to enforce a mechanics lien brought under Chapter 4 (commencing with Section 8400) of Title 2 of Part 6 of Division 4 of the Civil Code. (Bold and Italics added.)

(b) This section does not apply to any cause of action for which attorney’s fees are recoverable under Section 1194.

Paid Family Leave Extended (Senate Bill No. 770)

Currently, workers in California can collect state disability insurance for up to six weeks if they take time off to care for a seriously ill child, spouse, parent or domestic partner – or to bond with a minor foster or adopted child. SB 770 expands the state’s Paid Family Leave program, allowing workers to collect benefits for caring for seriously ill grandparents, grandchildren, siblings and in-laws. This new law takes effect July 1, 2014.

Following Kelley decision Senate Bill No. 292 Expands the Scope of Sexual Harassment Claims

The Court of Appeal in Kelley stated that, “The mere fact that words may have sexual content or connotations, or discuss sex, is not sufficient to establish sexual harassment…” Kelley v. Conco Companies (2011) 196 Cal.App.4th 191, 126 Cal.Rptr.3d 651.

The enactment of SB 292 overturns the Kelley decision and clarifies that an individual who sues for sexual harassment under FEHA is not required to prove that the harasser’s conduct was motivated by sexual desire. Effective January 1, 2014, SB 292 overrules Kelley by adding the following sentence to the FEHA: “sexually harassing conduct need not be motivated by sexual desire.”  So, clearly, liability may arise from comments or actions based on sex alone and the actions need not prove that the conduct was motivated by the harasser’s “sexual desire.”

Employees to be afforded with a “recovery period” to prevent heat illness.

Effective, January 1, 2014, California employers will be required to pay a premium for failing to provide heat “recovery periods” to employees. This premium pay is similar to the premium pay required for violations of California’s meal period and rest break laws.

The Newly Enacted California Labor Code Section 226.7 reads as following:

§ 226.7. “Recovery period” defined; mandated meal, rest, or recovery periods; requirement to work prohibited; application of section

(a) As used in this section, “recovery period” means a cooldown period afforded an employee to prevent heat illness.

(b) An employer shall not require an employee to work during a meal or rest or recovery period mandated pursuant to an applicable statute, or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health.

(c) If an employer fails to provide an employee a meal or rest or recovery period in accordance with a state law, including, but not limited to, an applicable statute or applicable regulation, standard, or order of the Industrial Welfare Commission, the Occupational Safety and Health Standards Board, or the Division of Occupational Safety and Health, the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.

(d) This section shall not apply to an employee who is exempt from meal or rest or recovery period requirements pursuant to other state laws, including, but not limited to, a statute or regulation, standard, or order of the Industrial Welfare Commission.