California Legislation Affecting Employment Law in 2015: A New Year Brings New Challenges for Employers

In the fall of 2014 California Governor Jerry Brown signed several new laws into law that will go into effect on January 1, 2015. Many of these laws directly and/or indirectly impact employment law in the State. The following paragraphs provide a brief primer on the new legislation and how each impacts management. As always, Syntrio provides detailed management and employee training, and can assist your business in complying with all state and federal employment laws.

Assembly Bill 2053 – California’s Anti-Bullying Law

Assembly Bill (“AB”) 2053, adds a new educational requirement to the existing training required by Assembly Bill 1825 (commonly known as California’s Harassment Training Law). As you are most likely aware, California employers with 50 or more employees are required to conduct at least two hours of sexual harassment training for supervisors once every two years. AB 2053 requires employers who are subject to the sexual harassment law to continue complying with the requirements of the law, but must also “include prevention of abusive conduct as a component of the training and education . . .” Under the new California law, managers and supervisors must be trained to recognize and prevent abusive behavior in the workplace.

What is “abusive” conduct?

AB 2053 defines “abusive conduct” as “conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.” According to the law, abusive conduct may include repeated verbal abuse, such as the use of derogatory remarks and insults; or physical conduct that a reasonable person would find threatening, intimidating, or humiliating. Important to note, the law states that a single act does not constitute abusive conduct, unless the isolated incident was “especially severe and egregious.”

Does AB 2053 Create a New Cause of Action for Bullying in the Workplace?

Nothing in the new law outlaws abusive conduct in the workplace. However, from an employee morale perspective this type of behavior can have a negative impact on employee productivity and is therefore discouraged. Further, it is impossible to predict what further amendments will take place in the coming months and years with respect to outlawing bullying in the workplace. It is safe to say that AB 2053 could be a precursor to such legislation in California.

Assembly Bill 1443 – Prohibiting Discrimination Against Unpaid Interns

The days of “taking it out on the intern” are over, as AB 1443 goes into effect on January 1, 2015. This law amends the Fair Employment and Housing Act (“FEHA”), and prohibits employers from discriminating against individuals in protected classes with respect to the “selection, termination, training or other terms” for unpaid internships. AB 1443 also prohibits employers from harassing unpaid interns (sexually or otherwise) and makes employers liable for harassment of unpaid interns by non-employees if an employer knew or should have known of the conduct but failed to take corrective action.

AB 1443 also prohibits employers from taking adverse action against unpaid interns based on religious beliefs, and employers must provide reasonable accommodation for religious observance unless doing so would pose an undue hardship. In short, the new law requires employers to treat unpaid interns as employees for the purposes of discrimination and harassment. Unrelated to this law, but still extremely important are the many wage and hour issues that can arise from having unpaid interns working at your business. It is a practice that is ripe for litigation, and AB 1443 only adds causes of action to an already popular category of individual for employment litigation.

AB 1660 Requires California Employers to Be Careful With Assumptions About Current and Prospective Employees

AB 1660 amends the FEHA to prohibit discrimination against an employee who presents a driver license issued to them under AB 60, which allows illegal immigrants to obtain a driver license even though the individual does not have the legal right to work in the United States.

Although this law is in direct conflict with employer obligations under the Federal Immigration law, it essentially means that although individuals must have the right to work in the US, they cannot be singled out at the application or hiring process and employers cannot assume they do not have the right to work in the US just because they have one of these driver’s licenses. Therefore, California employers must be especially careful when interviewing or hiring or in any situation in which a current or prospective employee may need to show the employer his or her driver’s license.

AB 1792 Prohibits Discrimination Based on Employee Receipt of State Funds

AB 1792 prohibits discrimination and retaliation against employees who are recipients of public assistance, specifically the Medi-Cal program. This portion of AB 1792 is a direct reaction to another provision in the bill that requires state agencies to prepare and publish a list of the 500 top employers with the most Medi-Cal recipients (“employer” defined as having 100 or more employees on Medi-Cal). Because the state is afraid that employers will select individuals for layoff or termination to avoid making this list they have included Medi-Cal recipients as protected individuals under state law.

SB 967 – California’s “Yes Means Yes” Law

SB 967 amends the California Education Code to require schools receiving state funds to uphold an affirmative consent standard in disciplinary hearings and to educate students about the standard. This new law attempts to reduce the gray area in sexually violent crimes in an effort to reduce such misconduct from occurring.

Under SB 967, consent is to be defined as “affirmative, unambiguous, and conscious decision by each participant to engage in mutually agreed-upon sexual activity.” Further, the law requires affirmative training of both students and faculty about affirmative consent, including all incoming students as part of orientation. Institutions that receive state funding will need to begin conducting training under this law, and should do so in conjunction with requirements set forth by the Campus SaVE Act, which went into effect in Fall 2014.

Syntrio, Inc. specializes in providing Ethics and HR compliance training. Contact us today at 888-289-6670 for a discussion on how we can help you and your business. Additionally, for regular updates on HR and ethics issues that may impact your business, follow Syntrio on Twitter, Google Plus and LinkedIn.