In Episode 148 of The Workplace, CalChamber employment law expert Matthew Roberts and CalChamber policy advocate Ashley Hoffman discuss three job killer bills under consideration in the California Legislature: SB 1044 (Durazo; D-Los Angeles), AB 2182 (Wicks; D-Oakland) and SB 1162 (Limón; D-Goleta).
The framework of potential laws is coming into view at the California Legislature, and we are beginning to see this year’s priorities, Roberts says in kicking off the podcast. Already there are a significant number of employment law-related proposals that could have far-reaching implications for most or all businesses in California.
One problematic proposal being considered is SB 1044, a CalChamber job killer bill that would allow employees to leave work or refuse to show up to work if the employee subjectively feels unsafe or there is a state of emergency or emergency condition, Hoffman says.
Recent amendments require the employee to now provide notice where feasible and made some effort to narrow the state of emergency language into threats that are more imminent and ongoing.
The CalChamber, Hoffman says, has three main concerns about the bill:
• First, even with the amendments, there is concern regarding what an “ongoing risk” is. For example, if there are nearby fires and the air quality index is over a certain threshold, an employee could leave the worksite, even if the California Division of Occupational Safety and Health (Cal/OSHA) has deemed it safe to work.
• The second concern is that SB 1044 takes the determination of what is safe completely out of the hands of Cal/OSHA and other agencies and puts it subjectively onto the employee.
• Finally, Hoffman explains, there are concerns about the impacts of allowing first responders, health care workers and other essential workers to leave their jobs. For example, an agricultural worker may need to attend to livestock that may otherwise perish.
There also is a risk for litigation associated with this bill.
If a worker leaves the worksite and the employer assigns their job duties to someone else, there could be an allegation that they’ve been replaced, Hoffman points out.
So, this bill does not provide the employer with flexibility, especially in an emergency situation, to be able to cover for missing employees. Moreover, this would fall under the purview of the Private Attorneys General Act (PAGA).
One bill that that was discussed last year and has returned this legislative session, Roberts says, is AB 2182. This job killer bill adds a new protected class to the California Fair Employment and Housing Act (FEHA).
Specifically, AB 2182 proposes to add as a protected class, a class of “family responsibilities,” and broadly defines this class to include any worker who has a child under 18, or any worker who provides care either to a family member, whether or not they live with you, or anyone in your household, which is not limited to a family member, Hoffman explains.
About 33% of workers have a child under 18, so the sheer number of people that this new class would cover would be quite expansive, she points out. Additionally, there is a reasonable accommodation requirement to also follow the interactive process that would apply where either a school or other care facility is unexpectedly unavailable.
Does the bill, Roberts asks, envision the same kind of interactive process that is required for disability or religious-based reasons for child care or care of a family member then?
Yes, it does, Hoffman answers. And the failure to engage in the interactive process is its own cause of action under FEHA.
“So even if you do ultimately accommodate someone, if they don’t think that you interacted with them in good faith, they can file a lawsuit on that basis alone,” she adds.
The bill creates a unique circumstance that makes it hard for the employer to engage in the interactive process, because this law applies where there is an unforeseen event.
“So in reality, it’s going to be a worker calling and saying, ‘I can’t come to work right now,’ or ‘I need to leave work right now,’ and so it’s not actually giving you time to engage in the interactive process, like you normally would have, in most cases involving a disability or a religious belief,” Hoffman says.
What is also problematic is that the bill broadly defines what a family member is. This new class includes as family any individual related by blood or whose close association is the equivalent of a family relationship, she explains.
The last bill discussed in the podcast is SB 1162, a job killer bill that expands pay data reports and will encourage litigation against employers and undermine their ability to hire.
Of significant concern to the CalChamber, Hoffman says, is that SB 1162 requires that pay data reports be public, so that someone could look up any company and see the data report that was submitted.
A similar bill introduced five years ago, AB 1209, also sought to require the publication of pay data, and a vocal class action PAGA attorney stated in an interview with the Sacramento Business Journal that if pay data is published online, then companies would be hammered with lawsuits against them.
In addition to the concerns about the potential litigation this bill would create for employers, the CalChamber also is concerned that the data requested is overly broad. The job categories covered by this bill include professionals and administrative staff, which will each encompass a lot of people, Hoffman points out.
“The EEOC [U.S. Equal Employment Opportunity Commission] actually came out and said, ‘Well, we don’t think this data is actually going to be used to show differentials and pay between people with comparative jobs,’” she says.
The CalChamber’s concern is that this overly broad data is not going to meaningfully show anything and will not be able to show whether unlawful or inappropriate practices are going on. It will just be used by plaintiffs or the media for their own purposes, Hoffman says.
These bills are only proposals at the moment and are not yet law, Roberts reminds listeners. These proposals are subject to change, so employers should stay tuned for updates throughout the year as the legislative session goes on.
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