Pending bills would impose requirements on state employers

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The California Legislature is back in session, and once again several bills would impact workplaces in the Central Valley, imposing new restrictions and regulations on the operation of businesses. Four of these bills are summarized below. As always, this column does not substitute for the advice of legal counsel.

AB 1938 (Burke) would amend the California Fair Employment and Housing Act to include a definition of “familial status.” “Familial status” exists where a parent, foster parent or other person has legal responsibility for a child who lives in their household.

The bill would not independently prevent discrimination on the basis of familial status but would prohibit employers from making non-job-related inquiries into an applicant’s or an employee’s familial status. If adopted, it seems likely that in the future familial status would be added to the list of protected categories under the California FEHA.

AB 1976 (Limón) and SB 937 (Wiener and Leyva) would both impose new accommodation requirements for lactating employees. Under current law, employers must provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child, and employers must also provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area for the employee to express milk in private.

AB 1976 would require that the private space be a location other than a restroom. SB 937 goes a quite bit further, requiring that the private space not be a restroom, but also requiring that it be safe and clean, and contain a table, chair, and an electrical outlet.

In addition, a sink and refrigerator must be maintained in close proximity to the employee’s workspace. Employers with fewer than five employees could apply for a hardship exemption from the Labor Commissioner.

The bill would also require employers to adopt and implement a policy, and to respond to an employee’s request for lactation accommodation within five days. Records of such requests would need to be maintained for three years.

The bill would also prohibit an employer from discharging or retaliating against an employee for exercising or attempting to exercise rights to lactation accommodation.
Finally, the bill would require that the state adopt new building code standards for the installation of lactation space for employees in newly constructed or remodeled nonresidential buildings.

AB 2455 (Kalra) is similar to a bill discussed in this column last year. California’s Department of Social Services currently maintains a registry of all home-care aides in the state. The registry exists for the purpose of allowing consumers to search for and locate a registered home-care aide. The public registry includes only the name of the aide, along with their registration status.

AB 2455 would also allow labor unions to have access to the names, home phone numbers and cellular phone numbers of registered aides, for the purpose of union organizing.
Registered aides would be able to “opt out” of having this information provided to labor unions.

Last year, Governor Brown vetoed a similar bill, AB 1513 (also authored by Ash Kalra, D-San Jose), noting that home care aides joined the registry with the understanding that their information would be provided to consumers and their families, not necessarily to labor unions.

The bill (like AB 1513 last year) would be subject to challenge on several legal grounds, including invasion of privacy. The bill also is arguably preempted by federal law, the National Labor Relations Act, which prescribes the methods by which labor unions can obtain information regarding employees.

These four bills are in their early stages, working their way through various committees. Other employment-related bills are also pending in the California legislature. Stay tuned to this column for further developments on these and other pending bills that could further impact employment and the human resources function in the Central Valley.

– Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at [email protected].

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