BUT WAIT, THERE'S MORE

This month I’ve been looking at 2019 California workers’ comp bills that became law, as well as some that failed to secure legislative passage or were vetoed.

But as they say in infomercials: wait, there’s more.

There are a number of other notable measures that that will affect workers in California. Here is a list of some that were signed and a few that were vetoed:

• AB 1804 and AB 1805, both of which were signed by Governor Newsom on August 30th. AB 1804 amends Labor Code 6409.1 to create an online mechanism (to be established by Cal/OSHA) that allows employers to report serious injury, illness or death. AB 1805 makes changes in the definition of “serious injury or illness” under Labor Code 6302 and 6309. In 2015 federal OSHA broadened regulations on types of work-related injuries employers must report. AB 1805 brings California in line with federal standards. The bill also amends the standard for a serious Cal OSHA violation by specifying the new standard as a “realistic possibility” instead of substantial probability that death or serious harm could result from an alleged actual hazard.

• AB 528 (Low) , which amends sections of the Business and Professions Code and the Health and Safety Code, was signed by the Governor on October 9. The bill tightens requirements for reporting prescription drugs to the California CURES system, Among other things, pharmacists will be required to report Schedule V drugs to CURES and the time for reporting to CURES will be reduced to the next business day. Compliance with the bill will be phased in.

• AB 25 (Chau) was signed by Governor Newsom on October 11 after unanimous passage by the California Senate and Assembly. The impetus of the bill were concerns about how the California Consumer Privacy Act of 2019 (CCPA) would affect the ability of businesses to collect information within employment-related contexts and how to harmonize the CCPA with existing privacy protections under several California Insurance Code sections. Before passage of AB 25, among the concerns was how the CCPA would affect collection of personal information in the context of retaining information for administration of benefits. The bill was a compromise hammered out between privacy advocates and business groups, but has a one-year sunset provision. Therefore, we will see further legislation on this in the future.

A link to the text and legislative analysis of AB 25 can be found here:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB25

• AB 1400 (Kamlager-Dove), signed by Governor Newsom on October 10, is a bill sponsored by labor interests. It provides that a study be done by CHSWC in partnership with relevant stakeholders by January 1, 2021 on the risk of carcinogen exposure and incidence of occupational cancer in fire equipment mechanics.

• AB 51 (Gonzalez), signed by Governor Newsom on October 10. This bill, listed as a “job killer” by the CalChamber, was a priority for employment lawyers , trail lawyers and labor advocates. Why? The bill will end forced arbitration as a condition of employment for employment contracts entered into, modified or extended on or after January 1, 2020. According to the legislative counsel digest:

“This bill would prohibit a person from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit. The bill would also prohibit an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. The bill would establish a specific exemption from those prohibitions. Because a violation of these prohibitions would be a crime, the bill would impose a state-mandated local program.

FEHA makes specified employment and housing practices unlawful and provides procedures for enforcement by the Department of Fair Employment and Housing. FEHA authorizes a person alleging a violation of specified provisions of the act relating to employment discrimination to submit a verified complaint to the Department of Fair Employment and Housing, and requires the department to take actions to investigate and conciliate that complaint. FEHA authorizes the department to bring a civil action on behalf of the person who submitted the complaint upon the failure to eliminate an unlawful practice under these provisions. FEHA requires the department to issue a right-to-sue notice to a person who submitted the complaint if certain conditions occur, and FEHA requires a person who has been issued a right-to-sue notice to bring an action within one year from when the department issued that notice.

This bill would additionally make violations of the prohibitions described above, relating to the waiver of rights, forums, or procedures, unlawful employment practices under FEHA.”

You can find the text of AB 51 and the legislative analysis here:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB51

• AB 668 (Gonzalez), signed by Governor Newsom on October 12, adds Section 43.54 to the Civil Code and amends Section 177 of the Code of Civil Procedure. This legislation was drafted out of concern that courthouse appearances could be used as the site of immigration enforcement arrests, discouraging claimants for using the justice system. According to the Legislative Counsel digest:

“Existing law prohibits specified conduct inside public buildings owned and occupied, or leased and occupied, by the state. Existing law provides that a judicial officer has the power to preserve and enforce order in judicial proceedings and to compel obedience to judicial orders, as specified.

This bill would clarify the power of judicial officers to prohibit activities that threaten access to courthouses, including by protecting the privilege from arrest at a courthouse. The bill would provide that no person shall be subject to civil arrest in a courthouse while attending a court proceeding or having legal business in the courthouse.”

In 2019 Newsom was not shy about wielding his veto pen, even when he was nixing bills carried by some of his legislative allies. Noteworthy bills vetoed by the Governor late in the session included the following:

• AB 1478 (Carillo). According to the legislative analysis, this bill would have provided “a private right of action for an employee who is discriminated or retaliated against by their employer due to, among other reasons, their status of being a victim of domestic violence, sexual assault, and stalking, and entitles a prevailing plaintiff to reasonable attorney’s fees and other relief the court deems proper.”

• AB 171 (Gonzalez), aimed at expanding remedies for sexual harassment. In his veto message Governor Newsom outlined the reasoning for his veto:

” This bill amends the Labor Code to extend anti-retaliation and anti-discrimination protections to survivors of sexual harassment. These protections are currently provided to survivors of domestic violence, sexual assault or stalking. The bill also establishes a rebuttable presumption of unlawful retaliation, if an employer takes adverse action against the employee within 90 days, as specified.

I strongly support the Legislature’s efforts to strengthen workplace protections for all survivors of harassment and abuse. However, this bill creates a standard for a particular form of sex-based discrimination different from applicable standards for other forms of discrimination that could weaken, rather than strengthen, existing worker protections. Incorporating sexual harassment into the Labor Code duplicates, and in some crucial respects, weakens existing law under the Fair Employment and Housing Act (FEHA), which already includes protections and remedies for survivors of sexual harassment when employers act unlawfully. AB 171 could also result in potentially overlapping claims filed with both the Department of Fair Employment and Housing (DFEH) as well as the Labor Commissioner, which could create confusion and potentially limit workers’ rights.

I encourage the Legislature to work collaboratively with DFEH to evaluate if and how the FEHA can be enhanced to better protect survivors of sexual harassment against unlawful employment practices.”

The text of AB 171 and the legislative analysis can be found here:

http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB171

• AB 403 (Kalra) was vetoed by the Governor on October 12. The bill would have amended sections 98.7 and 1102.5 of the Labor Code by extending the statute of limitations for filing Division of Labor Standards Enforcement (DLSE) complaints alleging workplace retaliation from six months to two years. Also, it would have authorized the payment of attorney’s fees to employees who successfully sue for retaliation based on whistleblowing.

Here is Newsom’s veto message, which seems to indicate he could support a one year statute but not a two year one:

“I commend the Legislature’s recent work to enact strong anti-retaliation measures, including providing the Labor Commissioner’s Office with authority to investigate retaliation when workers are too fearful to file a formal complaint, as well as the power to issue an administrative citation to enforce anti-retaliation statutes.

The Legislature has recognized that swift enforcement action by the Labor Commissioner is one of the most effective tools to combat retaliation and mitigate against its chilling effect on the rights of workers. I urge the Legislature to consider an approach that is consistent with other anti-retaliation statute of limitations in the Labor Code which are set to one year.”

Stay tuned.

Julius Young

https://www.boxerlaw.com/attorney/julius-o-young/