A job killer bill exposing employers to a potential flood of employment-related lawsuits passed the Assembly Judiciary Committee this week despite the objections of the California Chamber of Commerce.
AB 524 (Wicks; D-Oakland) creates a broad new protected class under the Fair Employment and Housing Act (FEHA) for employees with family caregiver status. This broadly defined group would include any employee who “contributes” to the care of any person of their choosing.
The definition would encompass essentially every worker and creates an automatic basis for an individual in that new classification to challenge any adverse employment action. Further, this new classification would be used to essentially require employers, including small businesses, to accommodate all caregiving needs beyond what is already required under existing law or else they may face a discrimination claim.
Between litigation exposure and forced accommodations, AB 524 will increase the cost of doing business in California and the costs of goods and services.
Because FEHA includes a private right of action for any alleged discrimination against a protected classification, AB 524 exposes employers, including small businesses, to costly litigation. Liability includes compensatory damages, injunctive relief, declaratory relief, punitive damages, and attorney fees.
Committee members of both parties voiced concern that the bill could prove troublesome for small businesses, but ultimately the Democrats voted to keep AB 524 moving while Republicans declined to vote.
New Protected Class
AB 524 proposes to add any individual with “family caregiver status” as a new protected class under FEHA. That term is defined to include any worker who “contribut[es] to the care of one or more family members.” A “family member” is not limited to an actual family member. Rather, it includes any person who the employee subjectively considers to be like family. This could include a neighbor or an employee’s child’s friend. Every employee could arguably fall into the category of a family caregiver.
Although proponents of AB 524 claim that adding family caregiver status to FEHA simply clarifies existing laws, the bill actually is a significant expansion of FEHA and provisions like AB 524’s have been rejected by the Legislature for the last two years.
Because whether an employee contributes to the care of another or whether someone is like family to them are subjective determinations, the employer has no ability to dispute an employee designating themselves as having family caregiver status. Any dispute would open up the employer to costly litigation. Adding this broad, new classification to the list under FEHA would limit an employer’s ability to enforce employment policies, including attendance policies. Any action taken by the employer could be challenged as discrimination based on “family caregiver status.”
Further, the bill creates a de facto accommodation requirement because if an employee requests a schedule change or time off that is denied and they subsequently violate an attendance policy or are terminated for refusing to work a different schedule, they will surely sue, alleging discrimination.
Many existing laws contain parameters that provide employees time to act as a caregiver, such as leave where a school or childcare center is unavailable; the California Family Rights Act (leave to care for a family member or other designated person of the employee’s choice); the Healthy Workplace Healthy Family Act and related “kin care” statutes also allow sick time to be used to care for someone else. Any employer who retaliates against an employee for using these leaves is liable for unlawful retaliation.
If the Legislature finds these leaves insufficient, rather than imposing new burdens on employers it should provide more flexible work options to workers by revising California’s overly rigid wage and hour laws that prohibit workplace flexibility.
AB 524 passed Assembly Judiciary on March 21:
Ayes (8): Maienschein (D-San Diego), Connolly (D-San Rafael), Haney (D-San Francisco), Kalra (D-San Jose), Pacheco (D-Downey), Papan (D-San Mateo), Reyes (D-San Bernardino), R. Rivas (D-Hollister).
Not voting (3): Essayli (R-Riverside), Dixon (R-Newport Beach), Sanchez (R-San Marcos).
The bill will be considered next by the Assembly Labor and Employment Committee.