Keeping Up to Date on New HR Laws for 2016

In this new year, there are significant requirements that employers must respond to. In addition to 16 state and many city changes to minimum wage, 2016 will bring changes at the Federal level. Here are two great links to help you keep track of state and city minimum wage increases, and In addition to the new Executive Order which raises the hourly minimum wage for Federal Contactors to $10.10 on January 1, 2016, keep an eye out for announcements on the Federal changes that will greatly affect private employers later this year (minimum wage increase and increased salary basis for FLSA exempt employees.)

As usual, our California clients will not be surprised that the state continues to lead the way in new employment law initiatives and compliance requirements. Unless specified otherwise, changes are effective on January 1, 2016. Below is a summary of the most relevant new CA HR law issues:

1. Gender Wage Equality

SB 358 (Fair Pay Act) revises Labor Code section 1197.5, which deals with gender pay inequality or disparity. Under existing California law, employers cannot pay an employee less than the rate paid to an opposite-sex employee in the same establishment for equal work on jobs that require equal skill, effort and responsibility, and could face a lawsuit for such disparity.

The new Fair Pay Act revises and expands this prohibition. It eliminates the requirement that the pay difference be "within the same establishment" and eliminates use of the terms "equal work" for "equal skill, effort, and responsibility." Instead, SB 358 prohibits an employer from paying any of its employees less than employees of the opposite sex for "substantially similar work, when viewed as a composite of skill, effort and responsibility." In addition, the legislation places specific requirements on employers to affirmatively show that any wage differential is not unlawful but is instead based entirely and reasonably upon one or more of the acceptable listed factors, including seniority and merit systems or other bona fide factors coupled with a showing of "business necessity," as defined.

The Fair Pay Act prohibits employers from terminating, discriminating or retaliating against an employee who exercises his/her rights under the Act or assists others in exercising their rights. Like many other existing state and federal laws, under SB 358, employers also can't prohibit employees from disclosing their wages, discussing the wages of others or asking about another employee's wages. However, the Act does not obligate anyone to disclose wages when asked.

2. Whistleblower and Anti-Retaliation Protections

AB 1509 expands whistleblower and anti-retaliation protections to prohibit employers from retaliating against an employee when his/her family member engages in whistleblowing or other described protected activity, such as complaining of wage theft or unsafe working conditions.

3. Reasonable Accommodation and Retaliation

AB 987 clarifies that an employer can’t retaliate or discriminate against an employee for requesting a reasonable accommodation for a disability or religion, regardless of whether the request was granted. The law clarifies that the mere act of making the request is protected conduct under the Fair Employment and Housing Act.

4. Family School Partnership Act (employers with 25 or more employees)

SB 579 expands the categories of employees who are eligible to take protected time off from work for school or child care related activities. It allows an employee protected time off to find a school or a licensed child care provider and to enroll or re-enroll a child, and time off to address child care provider or school emergencies.

5. Piece Rate Workers

AB 1513 sets forth new rules for employers with piece-rate (sometimes referred to as "commission" employees). The statutory requirements for piece-rate compensation are clarified, and an affirmative defense and safe harbor is provided for employers who, by December 15, 2016, fully compensate their specified employees for all under-compensated or uncompensated rest periods, recovery periods, or unproductive time between July 1, 2012 and December 31, 2015.

6. Kin Care

SB 579 makes technical amendments to California’s "kin care" law to conform to the mandatory Paid Sick Leave law.

7. National Guard Leave and Protections

AB 583 expands the list of employees eligible for California’s military leave protections, such as return rights and other job protections.

8. Unemployment Insurance and Electronic Reporting

AB 1245 requires electronic reporting for unemployment insurance reports submitted to the Employment Development Department. It also requires employers to remit contributions for unemployment insurance premiums by electronic funds transfer. The requirements will apply to employers with 10 or more employees beginning January 1, 2017, and to all employers beginning January 1, 2018.

9. State Disability Insurance Eligibility: Waiting Periods

SB 667 changes the eligibility waiting period requirements when an individual files a second disability claim for the same or related condition as his/her initial claim. SB 667 also extends the time between claims that will be considered one disability benefit period. This law is effective July 1, 2016.

10. Unemployment Insurance: Training Benefits

AB 1514 makes changes related to eligibility for unemployment insurance benefits during a period when the individual is taking specified training or retraining.


Proposed 2015 HR Resolutions

As a result of these new laws, and just as good HR practice, we recommend the following steps:
  • Make sure your personnel policies and handbooks are up to date (including the lists of categories protected from discrimination and the leave sections).
  • Ensure your payroll procedures and documentation are up to date. A wage and hour audit could be helpful if you are not sure that your managers are dealing with overtime and leave issues correctly.
  • Make sure your HR staff has up to date training on implementing the myriad leave requirements in CA.
  • Sexual harassment sections in employee policies and handbooks should prohibit not just harassment, but also vulgar language, sexual innuendo, sexual propositions, threats, and bullying.
  • Make sure you are prepared to be proactive when faced with harassment complaints. Respond to complaints of bullying, crude behavior, and mistreatment that aren't necessarily "because of sex" as you would to a sexual harassment complaint. This means you need to conduct (or have someone qualified conduct) a prompt, fair, and thorough investigation and, where necessary, take steps reasonably calculated to stop the behavior.