Good New, Bad News
Current legislation pending in California always includes a mix of good news and bad news for employers. Currently there are four (4) Bills pending (among numerous others) which I found interesting and wanted to share with employers. On the positive side, Assembly Bill 281 and Assembly Bill 1429 both address issues in the Private Attorneys General Act of 2004 (PAGA). PAGA gives private attorneys the right to sue on behalf of the State of California and is currently being used by attorneys for employees to batter businesses based on technical errors in record keeping, bookkeeping, timekeeping, etc. Both the Bills mentioned here would help alleviate some of that burden. The first Bill, AB 281, would allow employers a longer period of time to “cure” any alleged violations, and requires the employee’s attorney to notify the employer about the problem. This Bill would extend the time to cure from thirty-three (33) days to sixty-five (65) calendar days. Time to cure should be taken seriously, and if notified of a violation, employers are encouraged to act immediately to alleviate the situation. This helps diffuse attorneys’ fees which are often the biggest portion of the awards in these cases. The second piece of legislation, AB 1429, would go even further and “cap” the civil penalties recoverable under the provisions of PAGA to $10,000 per claimant. It would also exclude the recovery of filing fees by successful parties. This Bill would also require Superior Court to review any penalties sought as a part of the Settlement Agreement under these provisions. While $10,000 per claimant is still a significant amount of money, it is far less than could be obtained currently and it is unclear whether this would include attorneys’ fees or not, but I would assume the answer is no, unfortunately.
Now for the bad news. Assembly Bill 5 would create the “Opportunity to Work Act”. This Bill would require employers with ten (10) or more employees to offer additional hours of work to an existing non-exempt employee before hiring any additional employees or subcontractors (with certain exceptions). The employer would also be required to post a notice of these employees’ rights and maintain documentation. The Bill also authorizes employees to file a complaint for violations of the provisions with the Division of Labor Standards Enforcement or to bring a civil action for remedies under the Act. In essence, this reserves the option to cut employee’s hours to avoid certain mandated benefits. Although early in the process, this Bill is pending before the Assembly and has passed several committees.Lastly, Assembly Bill 1209 affects large employers with 500 or more employees. Effective
Lastly, Assembly Bill 1209 affects large employers with 500 or more employees. Effective July 1, 2019 these affected employers will be required biennially to file a Statement of Information with the California Secretary of State. This information will contain specific details on gender wage differentials. The information will, of course, be used to prosecute employers who are engaging in discrimination in wages paid based on gender. This Bill has passed the Assembly and is now pending before the Senate where it has been amended several times but is still progressing.