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October 22, 2013

2013 Legislative Update ~ Implications for the Public Sector


Among the 800 new laws adopted this year, several have important implications for our public agency clients in the areas of labor and employment.  Additionally, a pair of noteworthy bills failed to make it into law, but should be noted for their relevance and potential for next year’s legislative session.

Wages
AB 10 (Minimum Wage):  Labor Code section 1182.12 was amended, raising the minimum wage to $9.00 per hour effective July 1, 2014, while providing for an increase to $10.00 per hour effective January 1, 2016.  This law responded to the growing concern that the current minimum wage remained less than comparable to wages in the late 1970s when adjusted for inflation.

SB 7 (Prevailing Wage):  Effective January 1, 2015, Labor Code section 1782 was amended to prohibit a charter city from using state funds for a construction project if the municipality has awarded a public works contract within the prior two years without requiring contractors to pay workers the prevailing wage. This law appears to be in response to a recent California Supreme Court decision in State Bldg. and Const. Trades Council of Cal., et al. v. City of Vista (2012) 54 Cal.4th 547, which held that charter cities may opt out of prevailing wage requirements under the ‘municipal affairs’ doctrine.  Proponents claim that the law does not impede the rights of charter cities as the law does not require compliance with prevailing wage standards.  Instead, it states that its intent is to provide financial incentive for such compliance through eligibility to receive state funding for construction projects.

Labor Relations
AB 537 (MMBA):  The bill amends the Meyers-Milias-Brown Act (“MMBA”) in three areas.  First, if the parties reach a “tentative agreement,” the public agency’s governing body must vote to accept or reject that agreement within 30 days.  The statute does not define what constitutes a “tentative agreement.”  Given that the parties reach piecemeal “agreements” on many subjects of mandatory bargaining and that the law can be reasonably interpreted to require that governing bodies vote only for comprehensive tentative agreements, litigation could result over this ambiguity.  Second, the MMBA also now provides that any procedural defenses for a grievance, including untimeliness, must be submitted to arbitration rather than requiring the grievant move to compel arbitration in superior court.  Finally, the MMBA now codifies the deferral doctrine that was already enforced through PERB’s regulations. PERB’s exclusive jurisdiction is not a defense to arbitration.  Instead, if there is final and binding arbitration, PERB will place a related unfair practice charge in abeyance and dismiss it once the arbitration process is completed.

AB 1181 (MMBA): The MMBA was also amended to provide public employee representatives with paid leave when appearing before PERB, personnel boards, or merit commissions.  The current law in Government Code section 3505.3 already provides employee representatives paid leave when formally meeting and conferring with public agency representatives, and therefore, this is an expansion of the obligation under the MMBA.

Employment
AB 218 (Background Checks):  Effective on July 1, 2014, protections for job applicants will be increased through the amendment of Labor Code section 432.9 which prohibits public agencies from requesting information concerning criminal convictions until the employer has determined whether the applicant’s qualifications meet the position’s minimum requirements.  The law does not apply to positions for which current law requires the agency to conduct a conviction history background check, or to positions within criminal justice agencies.  The bill expressly provides that public employers may still run background checks after assessing an applicant’s qualifications.

SB 292 (FEHA): California expanded the protections of the Fair Employment and Housing Act (“FEHA”), clarifying that sexual harassment need not be motivated by sexual desire. The bill amends Government Code section 12940, directly responding to and overruling an appellate court decision in Kelley v. The Conco Comp. (1st Dist. 2011) 196 Cal.App.4th 191. This clarification notes that a plaintiff may establish that ‘harassing’ conduct was based on sex through proof of sexual desire, general hostility towards a particular sex, or evidence of disparate treatment of sexes.  The bill expressly responds to concerns that same-sex plaintiffs would encounter difficulty in establishing sexual harassment claims due to confused state precedent, now permitting them to utilize any of the three methods of proof.

AB 556 (FEHA):  FEHA was amended to add “military and veteran status” to the list of categories protected from discrimination by employers.  AB 556 addresses perceptions that employers discount veterans’ skills, or improperly presume that a veteran suffers from psychological disabilities related to service.  However, the law notes that employers may still offer certain preferential treatment in favor of those with military service; it merely prohibits adverse action based on such status.

AB 263 (Immigration): The Labor Code was amended to prohibit employers from engaging in an “unfair immigration-related practices” in retaliation against employees for engaging in protected activity.  “Unfair immigration-related practices” include requests for additional identification documents than are allowed under federal I-9 rules; use of the federal E-Verify computer system to verify employment authorization for a worker in a manner not required or authorized under the program procedures; or threats to file a police report or contact the immigration authorities.

AB 400 (Domestic Violence/Sexual Assault/Stalking): Labor Code sections 230 and 230.1 were amended to increase protections for victims of domestic violence, sexual assault, and stalking.  While already applicable to victims of domestic violence and sexual assault, the protection against adverse employment action for time-off spent to cope with abuse issues was expanded to stalking victims.  The bill also prohibits discrimination based on the victim status and would require “reasonable accommodations” for victims, such as a transfer, reassignment, modified schedule, changed telephone extension.

Public Safety
SB 313 (POBR):  The Public Safety Officers Procedural Bill of Rights Act was amended to prohibit public agencies from taking punitive action against a police officer solely because his/her name appears on a Brady list. The Brady v. Maryland decision requires prosecutors to disclose material evidence favorable to the accused, including information regarding police officer credibility.  A Brady list includes the names of those police officers who have committed acts of dishonesty. The new law addresses due process concerns arising when public agencies summarily demote or fire officers simply because their name appears on a Brady list. The bill amends Government Code section 3305.5, but emphasizes that public agencies may take adverse action against officers for acts underlying the Brady listing.

Failed Bills
AB 729 (Union Communication Privilege): The Legislature invited controversy when it passed AB 729, proposing the creation of a new evidentiary privilege for “union agents” and represented employees.  The privilege would operate similar to existing privileges with attorneys and doctors.  Governor Brown vetoed the bill, voicing skepticism with a law putting the union-employee relationship “on equal footing with one’s attorney or spouse.”  The governor also indicated that the privilege could compromise employers’ ability to conduct internal investigations.  Nevertheless, sizeable support suggests the bill could emerge once more . Its proponents note that federal law and sister states have protected these communications, emphasizing that workers confide sensitive information to union representatives.  Opponents attribute the veto due to the vague definition of “union agent”; while the ‘attorney-client’ privilege protects clearly identified parties, the union may have many ‘agents’ claiming the privilege.

SB 404 (Familial Status):  Stalled in the Senate Appropriations Committee, this divisive bill would have expanded FEHA’s protections to include a “familial status” category, defined as an individual giving “medical or supervisory care” to family members. Supporters cited the need to curb discrimination against employees who provide critical care to elderly or infant family.  However, industry representatives and lawmakers voice concern over the vague terms, as “medical care” could encompass over-the-counter medication or weekly trips to family doctor appointments.  Additionally, opponents feared a spike in adverse employment action litigation. SB 404 emerges as the successor to Senate Bill 836, a bill providing a much broader definition for “familial status.” Then-Governor Schwarzenegger vetoed that bill, whereupon a revised and trimmed version emerged in SB 404 to considerable support.

Atkinson, Andelson, Loya, Ruud and Romo has extensive experience in advising public agencies. If you have any questions about how this new legislation may apply to your agency, please contact one of the attorneys listed above.

The authors wish to thank Eric Riss, Law Clerk, who assisted with the drafting of this Alert.

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