By Jim Brown. Mr. Brown is a Partner in Sedgwick’s San Francisco office. Click here to contact Mr. Brown.
Originally published by Mr. Brown in the California Employment Law Letter.
In the last two months, California Governor Edmund G. Brown has signed several bills, resulting in laws that will have an impact on various issues facing employers in California. Here is an overview of several of those laws.
Stricter Statewide Prohibitions On Smoking In The Workplace
California Labor Code Section 6404.5 previously restricted smoking in the workplace based on “enclosed space” areas at places of employment. In addition to signage requirements, the existing law provided a list of exceptions or exemptions from the definition of “place of employment.”
Assembly Bill (AB) 7 amends Labor Code Section 6404.5 to, among other things, eliminate the specified exemptions from “place of employment” for hotel lobby and bar areas, taverns, banquet rooms, warehouse facilities, and employee break rooms. Although local jurisdictions could previously enact rules prohibiting smoking in those areas, there was no statewide law requiring such a ban.
In addition, the new law expands the ban on smoking to include certain owner-operated businesses that weren’t previously covered. The bill, which was signed into law on May 4, 2016, and becomes effective January 1, 2017, will provide statewide uniformity for the prohibition on smoking in these areas.
PFL Benefits Increased
Existing California law provides certain paid family leave (PFL) benefits to employees who take time off work to care for family members who have a serious medical condition or to bond with minor children within one year of their birth or placement via foster care or adoption. These wage replacement benefits are available for up to six weeks, and the amount of the benefits is currently based on calculations used for unemployment compensation.
AB 908 will change the formula for determining the amount of PFL benefits after January 1, 2018, provide for a weekly minimum benefit of $50, and increase the percentages for determining the wage replacement rate for the weekly benefit amount. The ceiling for the weekly benefit amount will be tied to the maximum for workers’ compensation temporary disability benefits.
In addition, AB 908 will remove the current seven-day waiting period applicable to employees who are unable to perform their regular or customary work and will allow for payment of disability benefits starting on the first day of their inability to work.
California Minimum Wage Increase
Under existing law, California’s minimum wage increased to $10 per hour on January 1, 2016. Senate Bill (SB) 3, introduced by Senator Mark Leno (D-San Francisco) and signed by Governor Brown on April 4, increases California’s minimum hourly wage to $15 by January 1, 2022, for large employers (with 26 or more employees) and by January 1, 2023, for small employers (with 25 or fewer employees).
The new law contains a stepped increase for large employers raising the hourly rate in 2017 by 50 cents to $10.50, and a $1 per hour increase each year after that until the $15-per-hour rate is reached. The same stepped increase for employers with 25 or fewer employees starts January 1, 2018, and ends at $15 per hour on January 1, 2023.
SB 3 also adds new provisions to California Labor Code Section 1182.12 allowing the governor of California to temporarily suspend a minimum wage increase scheduled for the following year. The governor must consider certain financial indicators before acting to suspend a minimum wage increase. In addition, the governor can use his power to suspend the minimum wage increase only on two occasions. If the power is exercised, the schedule for minimum wage increases is extended for another year after the suspension of the increase.
Paid Sick Leave For In-Home Supportive Services Workers
In addition to increasing the state minimum wage, SB 3 extends the paid sick days provided for under the Healthy Workplaces, Healthy Families Act of 2014 to in-home supportive services workers. Under existing law, this category of workers was excluded from the definition of “employee” for purposes of paid sick leave. SB 3 removes that exception and allows in-home supportive services workers to receive the same paid sick days that were extended to other workers in California in 2015.
California Disability Access Lawsuit Protections For Small Businesses
Existing California law prohibits discrimination on the basis of various personal characteristics, including disability. In addition to establishing standards for making new construction and existing facilities accessible to people with disabilities, the law provides remedies for violations of disability access laws when someone experiences “difficulty, discomfort, or embarrassment” because of the violation. A defendant is liable for actual damages plus minimum statutory damages of up to $4,000 for each violation of the construction-related accessibility standards
SB 269 gives small businesses some protection from the minimum statutory damages by allowing them the opportunity to fix certain types of violations even after they are sued or to preemptively engage an access specialist to inspect their business to identify potential violations. Under the new law, a business that regularly employs 50 or fewer workers that is sued or receives a written notice to fix certain types of violations can avoid the statutory penalties if it corrects the violations within 15 days. The types of violations that are covered by the 15-day “cure” period include violations involving interior and exterior signage, parking space striping, and detectable warning surfaces.
A small business can also hire a certified access specialist (CASp) to inspect its premises and then have up to 120 days to correct any violations discovered during the inspection. Assuming the inspection predates the filing of a lawsuit or the receipt of a demand letter based on the violations, the small business will not be liable for the statutory damages.
Neither of the new small business exceptions precludes someone from proceeding with a claim for actual damages if the claim can be proven. However, the majority of Americans with Disabilities Act (ADA) access suits faced by California businesses are premised on the presumed statutory minimum damages of $4,000 per violation.
Current law requires California’s Division of the State Architect (DSA) to establish and publicize a program for voluntary certification of people who meet the CASp criteria and annually publish a list of CASps. SB 269 now requires the DSA to publish and update lists of businesses that have filed notices of inspection and businesses that have been inspected by a certified CASp on or after January 1, 2017.
In addition, the new law requires the California Commission on Disability Access (CCDA) to provide a link on its website to the CASp certification program and local public agencies to notify all applicants for development permits of the requirements of the ADA or provide similar materials developed by the CCDA. The new law was signed by Governor Brown on May 10 and is effective immediately.
Compliance with California employment laws requires an awareness of the ever-changing legal landscape. Be sure you keep up with these fast-moving developments.