United States: Labor & Employment Law Client Alert - November 2018

2018 California Employment Law Updates

The 2018 California legislative session was another busy year with numerous employment-related bill signed into law. Notably, the legislature enacted many statutes to combat sexual harassment in both the public and private sectors. California employers should take note of these new laws to ensure that their policies and procedures are in compliance. Below is a summary of the important new laws affecting employers and employment litigation. All laws are effective January 1, 2019, unless otherwise noted.

I. WAGE AND HOUR

Labor-Related Liabilities: Direct Contractor

AB 1565 amends Section 218.7 of the Labor Code and provides that for contracts entered into after January 1, 2019, a direct contractor or subcontractor must include a contract provision that lists the documents or information that a lower tiered subcontractor must produce before either the direct contractor or subcontractor may withhold disputed payments. This bill repeals the provision that provides obligations and remedies in addition to existing legal obligations and remedies, except for imposing liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions including interest. As an urgency statute, this bill would take effect immediately.

Private Attorneys General Act of 2004: Construction Industry

AB 1654 amends the Private Attorneys General Act of 2004, Section 2699.6 of the Labor Code by carving out an exception for employees in the construction industry who performed under a collective bargaining agreement that is both in effect any time before January 1, 2025 and includes certain provisions on a grievance and binding arbitration procedure. This bill authorizes the exception until the agreement expires or until January 1, 2028, whichever is earlier. The provisions of this bill will be repealed on January 1, 2028.

School and Community College Employees: Parental Leave

AB 2012 amends Sections 449977.5, 45196.1, 87780.1, and 88196.1 of the Education Code by requiring a person employed in a position that requires certification qualifications, a person employed in an academic position, and a classified employee of a school or community college district who takes a parental leave during the designated 12 workweek period to receive at least 50% of their regular salary for the remaining period, regardless of the type of differential pay system.

Classified Employees: School and Community College Districts: Part-Time Playground Positions

AB 2160 amends Sections 45256, 880033, and 88076 of the Education Code by including employees in part-time playground positions in the definition of "classified employee" and thus authorizing a school district or community college to adopt a merit system that prescribes how to employ, pay, and control a classified employee's services. For a school district or community college district that has adopted the merit system, AB 2160 deems an employee in a part-time playground position as a permanent employee district without placing the employee on an eligibility list or examination.

Salary History Information

While the Labor Code prohibits an employer from relying on an applicant's salary history to determine whether to offer employment or what salary to offer, an employer must, upon reasonable request, provide the applicant with the pay scale for the position the applicant is applying for. AB 2282 amends the Code and defines the terms "pay scale," "reasonable request," and "applicant" and allows an employer to ask the applicant about expected salary.

Furthermore, this bill authorizes an employer to decide an employee's compensation based on the employee's current salary as long as one or more factors, i.e. a seniority system or a merit system, justifies any difference in wage resulting from the employer's compensation decision.

Rest Breaks: Petroleum Facilities: Safety-Sensitive Positions

AB 2605 adds and repeals Section 226.75 of the Labor Code by providing that, until January 2021, employees who hold a safety-sensitive position at a petroleum facility are exempt from the rest and recovery period requirements under existing law. If an employee misses this period, the employer must compensate the employee for one hour of the employee's normal pay rate. As an urgency statute, this bill would take effect immediately.

Employees: Meal Periods for Commercial Drivers

AB 2610 amends Section 512 of the Labor Code and addresses meal periods for commercial drivers that are employed by a motor carrier transporting nutrients and byproducts from a licensed commercial feed manufacturer to a customer located in a rural location. This bill authorizes commercial drivers to start their meal period after their sixth hour of working if their pay rate is at least one and a half times the state's minimum wage, and the driver receives overtime compensation according to existing law.

Employment: Public Works: Apprenticeship

AB 3231 amends Sections 1771.2 of the Labor Code. Under Section 1771.2, a joint labor-management committee established pursuant to the federal Labor Management Cooperation Act of 1978 is authorized to bring an action against any employer who fails to pay prevailing wages as required by state law. This bill expands that authority, allowing a joint labor-management committee to also bring an action against an employer who fails to provide payroll records as required by Section 1776. That failure arises when the employer fails to provide the name, address, social security number, work classification, straight time, and overtime hours worked each day and week, and the actual per diem wages paid to each journeyman, apprentice, worker, or other employee employed by him or her.

Arbitration: Agreements: Enforcement

AB 3247 amends Section 1281.2 of the Code of Civil Procedure, relating to arbitration. Under that Section, a court, on petition of a party to an arbitration agreement alleging (1) the existence of a written agreement to arbitrate a controversy and (2) that a party to the agreement refuses to arbitrate the controversy, must order the petitioner and the respondent to arbitrate the controversy if the court determines that an agreement to arbitrate exists, unless the court makes other determinations, including, among other things, that grounds exist for the revocation of the agreement. This bill changes that determination to specify instead that grounds exist for rescission of the agreement. It further makes additional, non-substantive changes to the language of the Section.

Wages: Records: Inspection and Copying

California Labor Code Section 226 requires employers to keep itemized wage statements containing various categories of information. SB 1252 amends the text of Labor Code Section 226 to provide that employees have the right to receive a copy of these statements. The bill itself does not constitute a change in existing law but is intended to serve as a declaration of existing law. Under existing law, current and former employees have the right to inspect or copy records pertaining to their employment, upon reasonable request. Failure to respond to these requests and provide the employee with their records within a specified time results in a penalty of $750, to be recovered by the employee or the Labor Commissioner.

II. EMPLOYMENT DISCRIMINATION, HARASSMENT, RETALIATION

Legislature: Legislative Employee Whistleblower Protection Act

AB 403 adds Article 11 to the Government Code and extends whistleblower protection to a Member of the Legislature, or a legislative employee, against interfering with, or retaliating against a legislative employee exercising the right to make a protected disclosure, i.e. a violation of law or legislative standard of conduct, by imposing criminal and civil liability.

Additionally, this bill imposes civil liability on an entity that interferes with or retaliates against a legislative employee who makes a protected disclosure. As an urgency statute, this bill would take effect immediately.

Legislative Ethics: Education: Lobbying

AB 2055 amends Section 8956 of the Government Code by requiring the legislative ethics committees of each house of the Legislature to conduct at least a semi-annual orientation course on each of their policies against harassment, including sexual harassment, relating to lobbying activities.

Talent Agencies: Education and Training

AB 2338 amends the Labor Code and requires talent agencies to give educational materials on preventing sexual harassment, retaliation, along with reporting resources, nutrition, and eating disorders to artists. The materials must be in a language the artist understands. In applying for renewal to the Labor Commissioner, the talent agency must prove compliance.

This bill additionally requires a minor in the entertainment industry and the minor's parent or guardian to complete training on topics such as sexual harassment prevention, retaliation, and reporting resources. Moreover, this bill requires a talent agency to request and retain a copy of the minor's entertainment work permit before representing or sending a minor artist to an audition, meeting, or interview to engage the minor's services. A talent agency's failure to comply subjects it to civil penalties of $100 for each violation.

Apprenticeships: Discrimination: Prohibition

AB 2358 adds Section 3073.9 to the Labor Code and expressly prohibits discrimination in building and construction trades apprenticeship programs on the basis of race, sex, religious creed, or national origin in terms of acceptance or participation in those programs.

This bill additionally requires an apprenticeship program to designate one or more individuals to oversee and maintain compliance, implement procedures consistent with this bill, include an equal opportunity pledge in its apprenticeship standards, and overall compliance with this bill within a specific period of time.

This bill authorizes the California Apprenticeship Council to issue rules and regulations to implement this bill.

Privileged Communications: Communications by Former Employer: Sexual Harassment

AB 2770 amends Section 47 of the Civil Code to establish privilege over complaints of sexual harassment by an employee, without malice, to an employer based on credible evidence and communications between the employer and interested persons regarding a complaint of sexual harassment.

Furthermore, it authorizes employers to answer, without malice, whether the employer would rehire an employee and whether or not a decision to not rehire is based on the employer's determination that the former employee engaged in sexual harassment. Thus, under the terms of the new bill, such statements would be protected from civil action under existing laws governing libel and slander.

In-Home Supportive Services

AB 3082 adds Section 12318 to the Welfare and Institutions Code. Under this Section, the State Department of Social Services must, in consultation with interested stakeholders, develop, or otherwise identify, standard educational material about sexual harassment and the prevention thereof to be made available to providers and recipients of in-home supportive services.

The department must also develop, or otherwise identify, a proposed method for uniform data collection to identify the prevalence of sexual harassment in the In-Home Supportive Services program, established under existing law. To this end, the department must meet with the interested stakeholders no later than February 1, 2019 and must hold regular meetings thereafter.

Finally, this bill requires the department, on or before September 30, 2019, to provide a copy of the educational material and a description of the proposed method for uniform data collection to the relevant budget and policy committees of the Legislature.

Personal Rights: Civil Liability and Enforcement

SB 224 amends Section 51.9 of the Civil Code and Sections 12930 and 13948 of the Government Code, expanding sexual harassment liability under California law and establishing its enforcement mechanisms. Section 51.9 establishes liability for sexual harassment when the plaintiff proves specified elements, including, among other things, that there is a business, service, or professional relationship between the plaintiff and defendant and there is an inability by the plaintiff to easily terminate the relationship.

This bill eliminates the element that the plaintiff prove there is an inability to easily terminate the relationship and adds the element that the plaintiff prove the defendant holds themselves out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or third party.

Furthermore, this bill expands the list of individuals who may be held liable for sexual harassment under this Section to include investors, elected officials, lobbyists, directors, and producers.

This bill would also make the California Department of Fair Employment and Housing responsible for the enforcement of sexual harassment claims under Section 51.9. The California Fair Employment and Housing Act already makes it an unlawful practice under its provisions for a person to deny or to aid, incite, or conspire in the denial of certain civil rights.

This bill would also make it an unlawful practice to deny or aid, incite, or conspire in the denial of rights of persons related to sexual harassment actions.

Legislature: Whistleblower Protection and Retaliation Prevention

SB 419 amends Section 9149.32 and adds Article 12 to Chapter 1.5 of Part 1 of Division 2 of Title 2 to the Government Code. Under this bill, complaints made at the request of a legislative employee and complaints made against a nonemployee are considered "protected disclosures" under the Legislative Employee Whistleblower Protection Act. Thus, Members of the Legislature or legislative employees who interfere with these complaints or retaliate against a legislative employee's exercise of their right to make such complaints will face criminal and civil liability under the act.

Furthermore, under this bill, neither house of the Legislature may retaliate against a legislative advocate or employee, as defined, because that person has opposed any practices forbidden under the California Fair Employment and Housing Act or the Unruh Civil Rights Act or filed a complaint, testified, or assisted in any proceeding relating to a complaint of harassment under those provisions. Such retaliation results in civil liability under this bill.

This bill further requires each house of the Legislature to maintain a record of each harassment complaint made to that house for a period of at least 12 years after the complaint is made. As an urgency statute, this bill takes effect immediately.

Settlement Agreements: Confidentiality

SB 820 adds Section 1001 to the Code of Civil Procedure. This bill prohibits a provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. Such provisions that are entered into on or after January 1, 2019, are rendered void as a matter of law and against public policy. In evaluating liability under this Section, the court may consider the pleadings and other papers in the record, or any other findings of the court, in determining the factual foundation of the causes of action specified in these provisions.

This bill also creates an exception, not applicable if a party is a government agency or public official, for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, if the provision is included within the settlement agreement at the request of the claimant.

Unlawful Employment Practices: Discrimination and Harassment

SB 1300 amends Sections 12940 and 12965, and adds Sections 12923, 12950.2, and 12964.5 to the Government Code. Under existing law, the California Fair Employment and Housing Act makes it unlawful for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person. Furthermore, FEHA holds employers potentially responsible for the acts of nonemployees with respect to sexual harassment of employees and other specified persons if they fail to take corrective action under knowledge of such conduct. This bill extends that liability, stating that employer's liability for the acts of nonemployees may also arise with respect to other harassing activities. In fact, under this bill, employers can be held liable for any other type of harassment prohibited under FEHA of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace.

The bill also prohibits employers in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under FEHA or from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. Agreements that violate either of these provision are both contrary to public policy and unenforceable.

Employers: Sexual Harassment Training: Requirements

SB 1343 amends Sections 12950 and 12950.1 of the Government Code to establish new requirements regarding employee sexual harassment training. Under this bill, employers who employ 5 or more employees, including temporary or seasonal employees, are required to provide at least 2 hours of sexual harassment training to all supervisory employees, and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter, as specified. To meet this requirement, employers may either utilize their own internally developed training module or direct employees to view the online training courses developed by the Department of Fair Employment and Housing.

This bill requires the department to make such training courses available by developing or obtaining 1-hour and 2-hour training courses and posting them on the department's website. Additionally, the department must make existing informational posters and fact sheets, as well as the online training courses regarding sexual harassment prevention, available to employers and to members of the public in specified alternate languages on the department's Internet Web site.

Prohibited Discrimination Against Service Members

SB 1500 amends Section 394 of the Military and Veterans Code. Existing law protects members of the military or naval forces of the state or of the United States from discrimination with respect to their employment because of their membership or service. Prohibited acts include discharging a person from employment because of the performance of any ordered military duty or training, discharge by reason of being a member of the military or naval forces of the state, and refusing entrance to specified places because a member of the Army or Navy of the United States, or of military or naval forces of the state, wears the uniform of the organization to which they belong.

This bill extends, among others, the protections against discharge from employment to members of the federal reserve components of the Armed Forces of the United States and members of the State Military Reserve. It further extends the prohibition of refusing entrance into specified places to any member of the Armed Forces of the United States who wears the uniform of the organization to which he or she belongs. As a result, anyone engaged in the above acts will face criminal penalties and civil remedies for violation of these prohibitions.

Although the California Constitution typically requires the state to reimburse local agencies and school districts for certain costs incurred when the Legislature or any state agency mandates a new program or higher level of service on any local government, no reimbursements are required by this act because the terms of this bill create a new crime or, alternatively, change an existing definition of a crime.

III. OSHA HEALTH AND SAFETY

Occupational Injuries and Illness: Employer Reporting Requirements: Electronic Submission

AB 2334 amends the Labor Code and authorizes the Office of Self-Insurance Plans of the Department of Industrial Relations to use individual identifiable information as necessary to carry out its duties in the workers' compensation system. Moreover, this bill authorizes the Director of Industrial Relations to publish information concerning the costs of administration, workers' compensation benefit expenditures, and the solvency and performance of public self-insured employers' workers' compensation programs.

The Labor Code requires the Division of Occupational Safety and Health to issue a citations for violating its prescribed occupational safety and health standards, unless the Division issues the citation more than six months after the occurrence of the violation. AB 2334 clarifies that an occurrence as related to recordkeeping continues until it is either corrected, the Division discovers the violation, or the employer's duty to comply with the requirement no longer exists.

Additionally, AB 2334 requires the Division to monitor rulemaking and implementation of the United States Department of Labor's Occupational Safety and Health Administration's Improve Tracking of Workplace Injuries and Illnesses rule regarding electronically submitting workplace injury and illness data. If the Division finds that OSHA eliminated or diminished this requirement, an advisory committee must convene within 120 days of this finding to evaluate how to implement changes necessary to protect the goals of the rule.

Home Care Aide Registry: Disclosure of Personal Contact Information

AB 2455 amends Section 1796.29 of the Health and Safety Code by expanding privacy protection of home care aides under the Home Care Services Consumer Protection Act. For home care aide registrations or renewals after July 1, 2019, the State Department of Social Services to provide an electronic copy to labor organizations upon request with the home care aide's contact information, such as name, telephone number, and cellphone telephone number.

This bill also requires the Department to provide an opt-out procedure and disclose that procedure to home care aides. Moreover, this bill eliminates the requirement that states reimburse local agencies under this Act for a specified reason.

Migrant Farm Labor Centers

AB 2887 amends Section 50710.1 of and adds Sections 50710.2 and 50710.4 to the Health and Safety Code, regarding housing. Existing law already provides that the Department of Housing and Community Development, through its Office of Migrant Services, is to assist in the development, construction, reconstruction, rehabilitation, or operation of migrant farm labor centers, as provided. To this end, the law authorizes the Director of Housing and Community Development to contract with specified local public and private entities, including school districts and housing authorities, for the procurement or construction of housing or shelter, and to obtain specified services for migratory agricultural workers. This bill expands the flexibility of those contracts, requiring the department to allow for adjustments to the opening date of the contract based on variable seasonal or climate changes, as long as certain requirements are met. It also authorizes the department the enter into multiyear operating contracts with entities, and provide funding annually by making an amendment to that contract, as specified.

This bill further imposes a requirement upon any entity operating a migrant farm labor center to establish a reserve account comprised of the excess funds provided through the annual operating contract received from the department, if the department certifies there is no need to address reasonable general maintenance requirements or repairs, rehabilitation, and replacement needs of the requesting migrant farm labor center which affect the immediate health and safety of residents, as specified. Otherwise prohibited under existing law, the bill also permits the cumulative balance of the reserve account to exceed 10% of the annual operating funds annually committed to the entity by the department if authorized by the department. Regardless of the amount, the cumulative balance of the reserve account must be reported annually to the department.

Insurance: Small Employer Groups

SB 1375 amends various Sections of the Health and Safety Code and adds Section 10965.02 to the Insurance Code, relating to health insurance. This bill prohibits the issuing, marketing, or sale of employer group health care service plans and group health benefit plans to a sole proprietorship or partnership without employees directly or indirectly through any arrangement.

Previously, the law specifically included sole proprietors and partners of a partnership in the definition of "eligible employee" if they are actively engaged on a full-time basis in the small employer's business and included as employees under a health care service plan contract or health benefit plan of a small employer. However, under this bill, sole proprietors, partners of a partnership, and the spouses of sole proprietors and partners are no longer considered "eligible employees." Thus, entities consisting solely of the above individuals do not have eligible employees and, therefore, group health care service plans and group health benefit cannot be issued, marketed, or sold to them.

Because a willful violation of the bill's requirements relative to health care service plans is a crime, the bill imposes a state-mandated local program. Typically, the California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. However, because the bill creates a new crime or changes an existing crime, no reimbursements is required.

IV. LEAVE OF ABSENCE AND SICK LEAVE

Disability Compensation: Paid Family Leave

AB 2587 amends Section 3303.1 of the Unemployment Insurance Code, and eliminates applying an employee's unused vacation time that does not exceed one week to the seven-day waiting period before the employee receives family temporary disability benefits.

Public Employees: Leaves of Absence: Exclusive Bargaining Representative Service

SB 1085 adds Section 3558.8 to the Government Code. Several acts, including the Meyers-Milias-Brown Act, the Ralph C. Dills Act, the Trial Court Employment Protection and Governance Act, the Trial Court Interpreter Employment and Labor Relations Act, the Judicial Council Employer-Employee Relations Act, and the Los Angeles County Metropolitan Transportation Authority Transit Employer-Employee Relations Act, as well as provisions commonly referred to as the Educational Employment Relations Act and the Higher Education Employer-Employee Relations Act, regulate the labor relations of the state, the courts, specified local public agencies, and their employees. This bill would require public employers, subject to the acts described above, and specified public employers of transit workers, upon request of the exclusive representative of an employee, to grant reasonable leaves of absence without loss of compensation or other benefits for the purpose of enabling employees to serve as stewards or officers of the exclusive representative, or of any statewide or national employee organization with which the exclusive representative is affiliated. As specified in the bill, that leave may be granted on a full-time, part-time, periodic, or intermittent basis, in accordance with certain procedures.

At the conclusion of the leave granted, the steward or representative has the right of reinstatement to the same position and work location held before the leave, or, if not feasible, a substantially similar position without loss of seniority, rank, or classification. Once granted, there is no obligation by the representative to use leave under this provision and the representative may terminate that leave at any time, for any reason. However, the representative is required to reimburse the public employer for all compensation paid to the employee on leave, unless otherwise agreed to, as specified. The bill specifies that compensation during leave granted is required to include retirement fund contributions, the employee is to earn full service credit during the leave, and is required to pay his or her membership contributions, unless the employer has agreed to pay the contributions on the employee's behalf, as specified.

Finally, under this bill, a public employer is not liable for acts, omissions, or injuries suffered by employees that occur during the course and scope of the employee's leave, as prescribed.

Disability Compensation: Paid Family Leave

SB 1123, on and after January 1, 2021, expands the scope of the family temporary disability insurance program established within the state disability insurance program. Under this bill, workers are entitled to receive wage replacement benefits for time off to participate in certain qualifying exigencies related to their covered active duty or call to covered active duty of their spouse, domestic partner, child, or parent in the Armed Forces of the United States.

The first time an employee requests benefits under these qualifying exigencies, this bill authorizes the Employment Development Department to require the employee to provide a copy of the covered active duty orders or other documentation issued by the military that indicates that the employee's spouse, domestic partner, child, or parent is in the armed forces of the United States, is on covered active duty or call to covered active duty, and the dates of the covered active duty service. The bill itself details the qualifying exigencies under which an employee may seek these benefits. However, the broadest of these exigencies provides that any activity that addresses events arising out of the covered active duty or call to covered duty may qualify provided that the employer and employee agree.

State Public Employees: Sick Leave: Veterans With Service-Related Disabilities

SB 1312 amends Section 19859 of the Government Code to extend the benefits provided by the California Wounded Warriors Transitional Leave Act to state officers or employees employed on or after January 1, 2016, who are veterans with a service-connected disability rated at 30% or more by the United States Department of Veterans Affairs. The Act gives these individuals an additional credit for sick leave with pay of up to 96 hours for the purpose of undergoing medical treatment for his or her military service-related disability. Furthermore, the sick leave must be credited to a qualifying officer or employee on the first day of employment and remain available for use for the following 12 months of employment.

The bill also requires credit for leave of absence under this provision to be credited to a state officer or employee on the effective date of the officer's or employee's disability rating decision from the United States Department of Veterans Affairs, or on the first day the officer or employee begins, or returns to, employment after active duty, whichever is later, except under specified circumstances when provisions authorizing alternative leave arrangements would be applicable. As specified under this bill, sick leave credited under these provisions is ineligible for conversion to service credit.

V. LICENSURE

Licensing Boards: Denial of Application: Revocation or Suspension of Licensure: Criminal Conviction

Under the current Business and Professions Code, a board within the Department of Consumer Affairs prescribes requirements for licensing and regulating various professions and vocations, and a board may deny a license based on the applicant's prior conviction unless the applicant obtained a certificate of rehabilitations. AB 2138 authorizes a board to deny, revoke, or suspend an applicant or licensee's license if they have been subject to formal discipline, or convicted of a crime that occurred within 7 years from the date of applying for the license that is substantially related to the qualifications, functions, or duties of the business or profession regardless of whether the applicant or licensee was incarcerated. This bill also prohibits a board from denying a license on the basis of a dismissed or expunged conviction.

Furthermore, this bill requires the board to develop criteria to determine whether the crime is substantially related to the qualification, functions, or duties of the business or profession, and to consider whether the applicant has been rehabilitated. Furthermore, this bill requires the board to draft a report that discloses its actions with respect to the applicant's criminal history, submit the report annually to the Legislature, and post the report on the board's website.

AB 2138 prohibits a board from denying a license solely based on the applicant failing to disclose a fact that would have been cause for denial if the applicant disclosed that fact, and eliminates some of the actions the board may take after a specified hearing that the applicant requests. Notably, this bill becomes operative on July 1, 2020.

Business Licenses

AB 2184 adds Sections 16000.1 and 16100.1 to the Business and Professions Code, and requires a city, county, and a city and county that licenses businesses within its jurisdiction to accept a California driver's license or identification number, individual taxpayer identification number, or municipal identification number instead of a social security number if the city, county, or city and county otherwise requires a social security number to issue a business license.

Furthermore, this bill requires these jurisdictions to obtain an applicant's address for the purpose of receiving service of process, and to accept a post office box or private mailbox that satisfies certain requirements. This bill prohibits collecting personal information, i.e. identification numbers, for the purpose of disclosure.

Teacher Credentialing: Out-of-State Prepared Teachers: Clear Credential

The Commission on Teacher Credentialing establishes standards for issuing and renewing teaching credentials for out-of-state applicants. AB 2285 amends Section 44274.2 of the Education Code and eliminates the requirement that the Commission issue multiple subject, single subject, or education specialist teaching credentials to out-of-state applicants who satisfy certain requirements.

Minors: Employment: Work Permits

SB 1428 adds Section 49120 to the Education Code, which establishes that work permits shall not be denied to students on the basis of grades, grade point average, or school attendance if the pupil is applying for the work permit in order to participate in a government-administered employment and training program that will occur during the regular summer recess or vacation of the school that the pupil attends.

VI. PUBLIC EMPLOYEES

Peace Officers: Basic Training Requirements

The Penal Code provides training requirements for peace officers, and exempts a deputy sheriff in certain counties from training if their function is custodial. AB 1888 amends and repeals Section 832.3 of the Penal Code by eliminating the repeal provision. Thus, this provision operates indefinitely.

School Employees: Dismissal or Suspension: Hearings: Evidence

Current law generally prohibits certain types of evidence to be introduced at a dismissal or suspension proceeding of a school employee, subject to certain exemptions. AB 2128 amends Section 44944 of the Education Code by additionally exempting testimony, evidence, or a dismissal or suspension decision concerning behavior or communication of a sexual nature with a pupil that goes beyond the educational program, and a dismissal or suspension decision involving allegations concerning lewd and lascivious acts and certain types of contact or communication with minors.

Custodial Officers

AB 2197 amends Section 831.5 of the Penal Code by authorizing a custodial officer employed by the Madera County Department of Corrections to perform arrests, conduct searches, and segregate and classify prisoners, upon the County of Madera Board Supervisors' resolution.

Peace Officers: Misconduct: Employment

AB 2327 adds Section 832.12 to the Penal Code and requires departments or agencies that employ peace officers to retain a record of investigations of misconduct that involves a peace officer, either in the peace officer's personnel file or a separate file. This bill additionally requires a peace officer in a department or agency to provide written permission to a prospective hiring department or agency to view the file.

Peace Officer Training: Sexual Training and Gender Identity

AB 2504 adds Section 13519.41 to the Penal Code and requires the Commission on Peace Officers Standards and Training to develop and implement training on sexual orientation and gender identity, and integrate this training for law enforcement officers. This training should use proper terminology, and provide ways to create an inclusive work environment.

This bill additionally authorizes law enforcement officers, administrators, executives, and dispatchers to participate in supplementary training.

Prisons: Female Inmates and Male Correctional Officers

AB 2550 adds Section 2644 to the Penal Code and increases protection for female inmates by prohibiting male correctional officers from conducting a pat down search, unless the inmate poses a present risk of immediate harm to herself or others. This bill also prevents a male correctional officer from entering an area where a female inmate may be in a state of undress or from an area where he may view a female inmate in a state undress, unless the female inmate poses a risk of immediate harm to herself or others or if there is a medical emergency. This bill also requires an officer of an opposite sex to announce their presence before entering a housing unit. Lastly, this bill requires a male correctional officer to document a pat down search of a female, or entering a prohibited area within three days of the incident.

Peace Officer Training: Commercial Sexual Exploitation of Children

AB 2992 adds Section 13516.5 to the penal code to require the Commission on Peace Officer Standards and Training to develop a course on commercial sexual exploitation of children (CSEC) and victims of human trafficking. The course must address specified topics and components including, among others, recognizing indicators of commercial sexual exploitation, appropriate interviewing techniques, local and state resources available to first responders, and issues of stigma. The bill further requires the course to be equitable to a course that the commission produces for officers as part of continuing professional training and include facilitated discussions and learning activities, including scenario training exercises. Finally, the bill would require the commission to develop the course in consultation with survivors, agencies, and advocates, as specified.

State Contracts: Skilled and Trained Workforce

AB 3018 amends Sections 2601 and 2602 and adds Section 2603 to the Public Contract Code. Existing law authorizes public entities to require a bidder, contractor, or other entity to use a skilled and trained workforce to complete a contract or project under an enforceable agreement meeting specified requirements. Existing law further provides for steady increases in the percentage of the workforce under these agreements that must consist of skilled and trained workers. This bill limits these increases by establishing that certain occupations need only employ 30% skilled and trained workers for all work performed on or after January 1, 2018. These occupations include acoustical installer, bricklayer, carpenter, cement mason, drywall installer or lather, marble mason, finisher, or setter, modular furniture or systems installer, operating engineer, pile driver, plasterer, roofer or waterproofer, stone mason, surveyor, teamster, terrazzo worker or finisher, and tile layer, setter, and finisher. Contractors, bidders, or other entities subject to these contracts must also provide a monthly report demonstrating compliance with skilled and trained workforce requirements to the public entity or awarding body.

Certain additional procedures and penalties apply in the event of noncompliance. If the report itself does not demonstrate compliance, the public agency or other awarding body must forward this report, along with any plan to achieve substantial compliance and response to that plan, to the Labor Commissioner for issuance of a civil wage and penalty assessment. Furthermore, a subcontractor's failure to demonstrate compliance in a timely report requires the public agency or awarding body to withhold 150% of the value of the monthly billing and allows the contractor, bidder, or other entity to withhold the same amount from the subcontractor. Contractors or subcontractors must pay a civil penalty to the state of not more than $5,000 per month of work performed in violation of the skilled and trained workforce requirements if the Labor Commissioner or his or her designee determines that the contractor or subcontractor failed to use a skilled and trained workforce. A second or subsequent violation within a 3-year period results in an additional civil penalty paid to the state of not more than $10,000 per month of work performed in violation of the skilled and trained workforce requirements. Furthermore, contractors must obtain a declaration signed under penalty of perjury from the subcontractor that they have met the skilled and trained workforce requirements before making the final payment to the subcontractor. If a contractor or subcontractor, with the intent to defraud, violates this bill's requirements, they will be ineligible to bid on, be awarded, or perform work on a contract for a public works project, for a period of one to three years. This bill requires the Labor Commissioner to publish on the commissioner's website a list of contractors who are ineligible under these provisions.

Although the California Constitution typically requires the state to reimburse local agencies and school districts for certain costs incurred when the Legislature or any state agency mandates a new program or higher level of service on any local government, no reimbursements are required by this act because the terms of this bill create a new crime or, alternatively, change an existing definition of a crime, in this case perjury.

Corporations: Boards of Directors

SB 826 adds Section 310.3 and 2115.5 to the Corporations Code. This bill requires a publically held corporation whose principal executive officers are located in California, to have a representative number of women on its board of directors. These corporations must have a minimum of one female on its board of directors no later than the close of the 2019 calendar year. Furthermore, no later than the close of the 2021 calendar year, this requirement increases to 2 female directors if the corporation has 5 directors or to 3 female directors if the corporation has 6 or more directors.

Pursuant to this bill, the Secretary of State will publish various reports on its website documenting, among other things, the number of corporations in compliance with these provisions. The Secretary of State will publish the first of these reports no later than July 1, 2019 and the second no later than March 1, 2010, after which they will be published on an annual basis.

The bill also authorizes the Secretary of State to impose fines for violations of the bill, as specified, and the moneys from these fines are to be available, upon appropriation, to offset the cost of administering the bill.

Local Agency Contracts: Construction Manager At-Risk Construction Contracts

SB 914 amends Section 20146 of the Public Contract Code. Existing law authorizes a county, until January 1, 2023, with approval of the board of supervisors, to utilize construction manager at-risk construction contracts for the erection, construction, alteration, repair, or improvement of any building owned or leased by the county, subject to certain requirements, including that the method may only be used for projects that are in excess of $1,000,000. This bill expands that authorization by authorizing a public entity, of which the members of the county board of supervisors make up the members of the governing body of that public entity, with the approval of its governing body, to utilize construction manager at-risk construction contracts.

The bill also authorizes the county or public entity to utilize those contracts for the erection, construction, alteration, repair, or improvement of infrastructure owned or leased by the county or the public entity, as applicable, including, but not limited to, buildings, utility improvements associated with buildings, flood control and underground utility improvements, and bridges, but excluding roads.

State Teachers' Retirement

SB 1165 amends several Sections of the Education Code, relating to teachers' retirement. This bill make various technical, conforming, or minor changes to the Teachers' Retirement Law. These changes effect the administration of the State Teachers' Retirement Plan, including the Defined Benefit Program, the Defined Benefit Supplement Program, and the Cash Balance Benefit Program. These changes are summarized below.

First, this bill redefines the "school year" as the period beginning on July 1 of one calendar year and ending on June 30 of the following calendar year and makes conforming amendments to reference school term instead of school year. Second, this bill clarifies the prohibition on using service under another retirement system for determination of final compensation when it is performed during the same pay period as Defined Benefit Program service by linking it directly to provisions describing the pay periods.

Next, this bill authorizes and prescribes procedures for a retired member who has elected a new option upon divorce, under existing law, who was not married or in a registered domestic partnership at the time of election, and who subsequently marries or registers in a domestic partnership, to elect a new pension option naming his or her new spouse or partner as an option beneficiary.

This bill further allows a member whose employment requires membership in a different public retirement system, and who is not excluded from membership in that public retirement system, to elect to have that service subject to the Defined Benefit Program within 60 calendar days from the date of hire on a properly executed form submitted to the State Teachers' Retirement System headquarters within 60 days. It also allows and prescribes processes for a beneficiary to waive the right to these payments and benefits.

SB 1165's amendments clarify the requirements pursuant to which a Defined Benefit Program member may apply for a disability allowance or disability retirement with regard to the filing of a written disability application and the termination of the disability allowance if the member has an eligible dependent child. This bill requires, if a joint and survivor annuity is elected, that the calculation use the annuity effective date, rather than the member's retirement date. Under this bill certain Defined Benefit Supplement Program annuities continue upon the termination of a member's disability retirement for subsequent service retirement, as specified.

Finally, this bill provides that a person who elected coverage under federal Social Security or an alternative retirement plan who becomes a member of the Defined Benefit Program for another employer may continue that coverage.

Peace Officers: Domestic Violence Training

SB 1331 amends Section 13519 of the Penal Code. Section 13519 requires the Commission on Peace Officer Standards and Training to implement a training course for law enforcement officers in the handling of domestic violence complaints and to develop guidelines for officer response to domestic violence. Additionally, it requires the course to include instruction on specified procedures and techniques for responding to domestic violence, including, among others, recognizing the signs of domestic violence, and techniques for handling incidents of domestic violence that minimize the likelihood of injury to the officer and that promote the safety of the victim. The amendment also requires the course to include procedures and techniques for assessing lethality or signs of lethal violence in domestic violence situations.

Peace Officers: Release of Records

SB 1421 amends Section 832.7 and 832.8 of the Penal Code. Previously, California Law protected the confidentiality of records relating to complaints against peace officers and custodial officers except by discovery or during investigations or proceedings conducted by a grand jury, district attorney's office, or the attorney general's office. This bill establishes several categories of records that are no longer confidential under the existing rule. These include: incidents involving the discharge of a firearm at a person by a peace officer or custodial officer; incidents in which the use of force by a peace officer or custodial officer against a person resulted in death or in great bodily injury; incidents in which a sustained finding was made by any law enforcement agency or oversight agency that a peace officer or custodial officer engaged in sexual assault involving a member of the public; and incidents in which a sustained finding was made by any law enforcement agency or oversight agency of dishonesty by a peace officer or custodial officer directly relating to the reporting, investigation, or prosecution of a crime, or directly relating to the reporting of, or investigation of misconduct by, another peace officer or custodial officer, including, but not limited to, any sustained finding of perjury, false statements, filing false reports, destruction, falsifying, or concealing of evidence.

This bill also restricts the ability to redact information from these records prior to public disclosure, allowing redacting only in instances where private personal data or the physical safety of an individual would be put at risk without a redaction. In certain instances, disclosure of these records may be delayed where records relate to an open investigation or court proceeding.

VII. MISCELLANEOUS

Sexual Assault Counselor-Victim's Privilege

AB 1896 amends the definition of "sexual assault counselor" under Section 1035.2 of the Evidence Code to include a person who is engaged in a program on the campus of a public or private institution of higher education, with the primary purpose of rendering advice or assistance of victims of sexual assault.

Employment: Lactation Accommodation

AB 1976 amends Section 1031 of the Labor Code by requiring an employer to make a reasonable effort to provide an employee a room or location other than a bathroom for the purpose of lactation. An employer complies with this requirement by providing a temporary lactation location. An agricultural employer complies with this requirement by providing a private, enclosed, and shaded space for this purpose. If the employer proves to the Department of Industrial Relations that providing a lactation location would impose an undue hardship, the employer must make a reasonable effort to provide a room or location other than a toilet stall.

School Districts: Employees: Dismissal or Suspension Administrative Proceedings: Testimony of Minor Witnesses: Pupil Contact Information

The Education Code distinguishes between certificated employees who provide instruction in a school district, and classified employees who provide other services. AB 2234 amends the Code by prescribing requirements for presenting minor witness testimony in a dismissal or suspension administrative proceeding related to a certificated employee and hearings related to a classified employee by a school board in a school district that has not adopted the merit system.

This bill also provides that once a school district obtains a court order or a lawfully issued subpoena for a pupil's contact information, the school district must enter into an agreement with the entity that the school district obtained the information from to keep the pupil's information confidential, unless the court order or subpoena authorizes disclosure.

School Safety: Bullying

AB 2291 amends Section 32283.5 of the Education Code and adds Section 234.4, requiring local educational agencies to adopt procedures that prevent acts of bullying including cyberbullying, before December 31, 2019. This bill requires the State Department of Education to post cyberbullying training modules for school employees, parents, students, and community members, and to maintain an annual list of training modules related to bullying. Moreover, under this bill, charter schools, and school district or county office of education-operated schools must enable access to online training modules to school site employees who regularly interact with students.

Humane Officers: Authorization to Carry a Wooden Club or Baton

The Nonprofit Public Benefit Corporation Law authorizes forming corporations dedicated to preventing animal cruelty, and provides that humane societies may appoint humane officers to act consistent with that purpose. <AB 2349 amends Section 14502 of the Corporations Code, and Section 22295 of the Penal Code, by authorizing a humane officer to carry a wooden club or baton under certain circumstances if they are both authorized by the appointing society and certified by the Commission on Peace Officer Standards and Training.

Employment: Minors

The Labor Code provides that employing a minor in the entertainment industry under the age of 16 requires the Labor Commissioner's written consent. AB 2338 amends Section 1310 of the Labor Code by additionally exempting a minor's appearance in a radio or television broadcasting exhibition if the minor does not receive compensation directly or indirectly, the minor's appearance is limited to a single appearance that does not exceed more than hour, and there is no admission fee for the digital exhibition.

Public Contracts: Disabled Veteran Business Enterprises: Local Small Businesses: Social Enterprises

AB 2762 amends Section 2002 of, and adds and repeals Section 2003, of the Public Contract Code, and expands a local agency's authority to award constructions contracts to small businesses, by increasing the percent of preference from 5% to 7%. This bill establishes preferences for disabled veteran business, and social enterprises. This bill additionally enables prime contractors to substitute subcontractors, and protects subcontractors under the Subletting and Subcontracting Fair Practices Act and by requiring verification from the subcontractor. Under this bill, the local agency within the specified county that opts-in to provide these preferences must establish eligibility with respect to small business, disabled veteran business, and social enterprise. Lastly, this bill would make legislative findings and declarations for a special statute for the Counties of Alameda, Contra Costa, Lake, Los Angeles, Marin, Napa, San Francisco, San Mateo, Santa Clara, Solano, and Sonoma.

Student Services: Lactation Accommodations

AB 2785 adds Section 66271.9 to the Education Code, requiring the California Community Colleges and the California State University, and encouraging a satellite campus of these systems and the University of California, to provide certain reasonable accommodations for lactating students beyond those required by existing law. Reasonable accommodations under this Section include, but are not limited to, access to a private and secure room, other than a restroom, to express breast milk or breast-feed an infant child; permission to bring onto a college or university campus a breast pump and any other equipment used to express breast milk; and access to a power source for such equipment. Additionally, upon the construction of a new campus of the California Community Colleges or the California State University; the replacement, expansion, or renovation costing five million dollars or more of the plumbing of an existing building used by students; or the construction of a new building costing five million dollars or more designed for student use, the respective educational institution must provide a sink.

Under this bill, lactating students on a college or university campus must be given a reasonable amount of time to accommodate the need to express breast milk or breast-feed an infant child, and the accommodations under this Section must be available whenever a student is required to be on campus. Students are also prohibited from incurring academic penalties as a result of their use of these reasonable accommodations. In the event of noncompliance of any of these requirements, students can file a complaint in accordance with the procedures established by the California State University for complaints by students of discrimination based on disability, gender, or other applicable characteristics or those procedures found in Subchapter 5 of Chapter 10 of Division 6 of Title 5 of the California Code of Regulations. If such a complaint is found to have merit, the respective campus or appellate body is required under this bill to provide a remedy to the affected student.

The above accommodations must be implemented by the California Community Colleges and the California State University no later than January 1, 2020. Furthermore, the University of California is urged to implement them by this date. However, these entities may be entitled to state reimbursement under the California Constitution for costs incurred in implementing these accommodations, given that this bill imposes a state-mandated local program. Such reimbursements will be made subject to a determination by the Commission on State Mandates.

Contracts: Waiver of Right of Petition or Free Speech

AB 3109 adds Section 1670.11 to the Civil Code, relating to contracts. Under the California Constitution, people have the right to petition government for redress of grievances and to assemble freely to consult for the common good. Furthermore, the California Constitution provides that every person may freely speak, write, and publish his or her sentiments on all subjects, being responsible for the abuse of this right. In recognition of those rights, this bill makes a provision in a contract or settlement agreement void and unenforceable if it waives a party's right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

Evidence: Immigration Status

SB 785 modifies the Evidence Code to prohibit, in all civil actions except those for personal injury or wrongful death, the disclosure of a person's immigration status in open court by a party, unless that party requests an in camera hearing and the presiding judge determines that the evidence is admissible. The same prohibition applies to all criminal actions under this bill. As an urgency statute, this bill takes effect immediately. However, under its own terms, the bill will remain in effect only until January 1, 2022. As of that date, it is repealed.

Employment: Human Trafficking Awareness

SB 970 imposes additional obligations on employers to aid in raising awareness of human trafficking. Specifically, this bill amends the California Fair Employment and Housing Act to require specified employers to provide at least 20 minutes of prescribed training and education regarding human trafficking awareness to employees who are likely to interact or come into contact with victims of human trafficking, as defined. The bill also establishes a schedule for compliance commencing January 1, 2020 and authorizes the Department of Fair Employment and Housing, in the case of an employer violation of the bill's requirements, to seek an order requiring compliance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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