2014 Legislative Update

Posted on Tuesday, January 07, 2014 at 12:00AM

By Michael P.Stone, Esq.

2013 was a big year for the rights of workers in California.  Led by Governor Jerry Brown and a Democratic supermajority in the state Legislature, California this year passed groundbreaking laws that led the country on workers' rights.  But 2014 is going to be even better -- that's when the laws start going into effect.  Take a look at a few of California's laws from this past year below.

Senate Bill 496 (Expansion of Whistleblower Retaliation Protections)

The governor signed SB 496 into law.  SB 496 adds provisions to two whistleblower laws.

Current Labor Code section 1102.5(a), (b) prohibits actions to prevent employees from reporting violations of law to a government agency, and prohibits retaliation against employees who have made such external reports.  In addition, case law holds that an employee whose duties include disclosure of legal compliance information is not a “whistleblower.”  SB 496 expands the protections of Labor Code section 1102.5(a), (b) to internal whistleblowers.  It also legislatively overturns case law exempting employees who have legal compliance duties.

The existing California Whistleblower Protection Act prohibits retaliation against a state employee for making a protected disclosure relating to an improper governmental activity.  An employee who claims violation of the Act may seek remedies with the State Personnel Board or in a civil action.  SB 496 makes the procedure for seeking remedies easier.  It provides that when an employee brings a complaint to the State Personnel Board regarding an alleged violation of the California Whistleblower Protection Act which is consolidated with another matter (such as a disciplinary appeal, for example), the State Personnel Board must render a decision within six months.  SB 496 also clarifies that a civil action under the California Whistleblower Protection Act is exempt from the administrative claims presentation requirements of the Government Claims Act.

Senate Bill 292 (Sexual Desire Not Necessary to Prove Sexual Harassment)

The California Department of Fair Employment and Housing (DFEH) defines sexual harassment to include: unwanted sexual advances; offering employment benefits in exchange for sexual favors; actual or threatened retaliation; leering; making sexual gestures; or displaying sexually suggestive objects, pictures, cartoons, or posters; making or using derogatory comments, epithets, slurs, or jokes; sexual comments including graphic comments about an individual’s body; sexually degrading words used to describe an individual; or suggestive or obscene letters, notes, or invitations; physical touching or assault, as well as impeding or blocking movements; requests for sexual favors, unwelcome sexual advances or physical or verbal conduct of a sexual nature.

SB 292, amends the current sexual harassment law to encompass all types of sexual harassment, same-sex as well as opposite-sex. Sexual harassment is now defined as an activity that violates another person sexually, regardless of the sexual desire or orientation of the harasser.  (Cal. Gov. Code § 12940, amended at section (a)(3)(C).)  Before SB 292, the harasser’s conduct needed to be motivated by sexual desire.  SB 292 further expanded the definition of “harassment because of sex” to include threats of sexual violence and specify that an act is sexual harassment regardless of the sexual orientation, sexual desire, or intent of the harasser.

Assembly Bill 537 (Meyers-Milias-Brown Act: Impasse Procedures)

AB 537 deletes language in the Government Code that requires a Memorandum of Understanding to be presented for approval to the governing body after agreed upon by the representatives and ratified by the employee organization.  AB 537 also adds language to the MMBA that would require the governing body to either accept or reject any tentative agreement within thirty days of it being first considered at a public meeting.

AB 537 also adds a new section to the Government Code which requires arbitrators to decide questions of arbitrability, as opposed to a Superior Court making a determination whether to compel a matter to arbitration.  The proposed law specifies that arbitrators will determine if an arbitration claim is untimely and will also evaluate all procedural defenses, including procedural prerequisites for arbitration.

Assembly Bill 373 (Amendment to Public Employees' Long-Term Care Act)

The Public Employees’ Long-Term Care Act currently requires the Board of Administration of the Public Employees’ Retirement System to contract with carriers offering long-term care insurance plans for eligible employees (and their spouses, parents, siblings, and spouses’ parents).

AB 373 provides that domestic partners and adult children are now eligible to enroll in long-term care plans offered under the Public Employees’ Long-Term Care Act.  AB 373 specifies that eligibility to enroll in these plans is subject to limitations of federal law.  The bill would authorize the board to expand eligibility for these plans to all classes of persons who meet relevant requirements under the act and federal law.

Senate Bill 220 (California Public Employees' Pension Reform Act of 2013)

The governor signed SB 220 into law.  The Public Employees' Retirement Law (PERL) establishes the Public Employees' Retirement System (PERS) for the purpose of providing pension benefits to specified public employees.  Existing law requires that these systems be administered by the Board of Administration of PERS.

SB 220 requires the Board of Administration of PERS to administer retirement systems in conformance with PEPRA as if the provisions of the act were contained in the provisions governing those systems.  SB 200 provides that if the board determines that there is a conflict between the provisions of PEPRA and respective provisions of those systems, the provisions of PEPRA control.  The bill would make various changes in PERL to conform with the requirements of PEPRA.  SB 220 prescribes requirements for the calculation of the retirement allowance of members with service in different retirement systems, at least one of which is subject to PEPRA, with different minimum retirement ages, when the member retires before 52 years of age, as specified.

Happy New Year!
Stay safe!

PORAC Legal Defense Administrator Ed Fishman Testimony: Law Enforcement Use of Body Cameras.