California Governor Brown Signs Employment Bills at Last Minute

In my last post, I said that Governor Jerry Brown vetoed a bunch of ill-conceived laws.  Well, I posted too soon, and I take that back.

On October 9, the final day he could do so, Governor  Brown signed some employment law bills that make significant changes to employment law for California employers -

AB 22 - available here.  This new law bans most employers (not financial institutions or businesses required by law to perform credit checks) from obtaining credit information about applicants or employees, except in limited circumstances.  The law does not preclude criminal background checks, references, etc. - only credit information.  It does not apply to managers covered by the executive exemption (creating another basis for liability where there is a dispute / lawsuit over misclassification).  There are a few other exceptions as well. This is a huge issue for many employers who will have to change their practices.

AB 592 - available here.  This law adds an express prohibition of  "interference" with California Family Rights Act leave, similar to what is contained in the FMLA's text.  This is not a big change.

SB 299 - available here.  This provision seems to overlap AB 592, but also requires employers to extend group health coverage to employees taking PDL for the entire four month duration of PDL.  The extension of health coverage will apply even if there is no FMLA entitlement.  Between 592 and 299, it appears that the 12-week cap on employer paid benefits that applied to combined PDL/CFRA leave is gone.  Will ERISA preempt this provision?  Does the health care reform law affect it?  Stay tuned.  If this provision holds, get ready to modify all your policies again.

 AB 1236 - available here - allows employers to choose to use E-Verify, but prohibits cities or counties from requiring private employers to do so.  So, this is not a ban on E-Verify.  Breathe. 

AB 887 - available here - further defines "gender" in a variety of laws, including the Fair Employment and Housing Act.  Here's new Section 12940(p) - which already prohibited discrimination and harassment based on "gender."  This law specifically defines "gender" some more.
(p) "Sex" includes, but is not limited to, pregnancy, childbirth, or medical conditions related to pregnancy or childbirth. "Sex" also includes, but is not limited to, a person's gender. "Gender" means sex, and includes a person's gender identity and gender expression. "Gender expression" means a person's gender-related appearance and behavior whether or not stereotypically associated with the person's assigned sex at birth.
SB 459 - Available here - This new law imposes a fine of between $5000 and $25,000, for "willfully" misclassifying someone as an independent contractor, and makes it a crime and imposes joint liability for a non-attorney consultant to advise an employer to do so.  Employers also will not be able to make deductions from contractors' pay that they would not have been able to make had the contractors been employees.  What's "willful" misclassification? 
"Willful misclassification" means avoiding employee status for an individual by voluntarily and knowingly misclassifying that individual as an independent contractor.
This is going to be big.  I wish I had one of those Drudge Report siren thingies. 

OK, that's all the valuable information I can impart for now. (There may be more bills that I missed, which I will cover later.) But I have to go to work and get ready for all these laws!