Bills Signed by Governor (9/25/16)

 

  • AB 2899 by Assemblymember Roger Hernández (D-West Covina) – Minimum wage violations: challenges

 

Under existing law, any employer or other person acting either individually or as an officer, agent, or employee of another person, who pays or causes to be paid to any employee a wage less than the minimum fixed by applicable state or local law or an order of the Industrial Welfare Commission, is subject to a civil penalty, restitution of wages, liquidated damages payable to the employee, and any applicable specified penalties, as provided. Existing law provides notice and hearing requirements under which a person against whom a citation has been issued can request a hearing to contest proposed assessment of a civil penalty, wages, liquidated damages, and any applicable penalties. Existing law further provides that after a hearing with the Labor Commissioner, a person contesting a citation may file a writ of mandate, within 45 days, with the appropriate superior court.

 

This bill would require a person seeking a writ of mandate contesting the Labor Commissioner’s ruling to post a bond with the Labor Commissioner, as specified, in an amount equal to the unpaid wages assessed under the citation, excluding penalties. The bill would require that the bond be issued in favor of the unpaid employees and ensure that the person seeking the writ makes prescribed payments pursuant to the proceedings. The bill would provide that the proceeds of the bond, sufficient to cover the amount owed, would be forfeited to the employee if the employer fails to pay the amounts owed within 10 days from the conclusion of the proceedings, as specified.

 

  • SB 1241 by Senator Bob Wieckowski (D-Fremont) – Employment contracts: adjudication: choice of law and forum

 

Existing law regulates the terms and conditions of labor contracts. Existing law prohibits an employer from requiring an employee or applicant for employment to agree, in writing, to any term or condition that is known by the employer to be illegal. Existing law creates the Division of Labor Standards Enforcement, which is under the direction of the Labor Commissioner, and generally commits to the commissioner the authority and responsibility for the enforcement of employment laws.

 

This bill, for contracts entered into, modified, or extended on or after January 1, 2017, would prohibit an employer from requiring an employee who primarily resides and works in California, as a condition of employment, to agree to a provision that would require the employee to adjudicate outside of California a claim arising in California or deprive the employee of the substantive protection of California law with respect to a controversy arising in California. The bill would make any provision of a contract that violates these prohibitions voidable, upon request of the employee, and would require a dispute over a voided provision to be adjudicated in California under California law. The bill would specify that injunctive relief is available and would authorize a court to award reasonable attorney’s fees. The bill would provide that adjudication includes litigation and arbitration for purposes of these provisions. The bill would except from these provisions a contract with an employee who was represented by legal counsel, as specified.

ADR Bills Signed by Governor (9/25/16)

 

  • SB 1007 by Senator Bob Wieckowski (D-Fremont) – Arbitration: transcription by certified shorthand reporter

 

Existing law establishes standards for arbitration, and requires a court to vacate an arbitration award if it makes certain findings.

 

This bill would provide that a party to an arbitration has the right to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing as the official record. The bill would require a party requesting a certified shorthand reporter to make his or her request in a demand, response, answer, or counterclaim related to the arbitration, or at a pre-hearing scheduling conference at which a deposition, proceeding, or hearing is being calendared. The bill would also require the party requesting the transcript to incur the expense of the certified shorthand reporter, except as specified in a consumer arbitration. The bill would authorize a party whose request has been refused by the arbitrator to petition the court for an order to compel the arbitrator to grant the party’s request to have a certified shorthand reporter transcribe any deposition, proceeding, or hearing, and for an order to stay any deposition, proceeding, or hearing pending the court’s determination of the petition.

 

  • SB 1065 by Senator William W. Monning (D-Carmel) – Dismissal or denial of petitions to compel arbitration: appeals: Elder and Dependent Adult Civil Protection Act

 

Existing law, the Elder and Dependent Adult Civil Protection Act, establishes various procedures for the reporting, investigation, and prosecution of elder and dependent adult abuse, and it sets forth specific provisions governing civil actions arising from the abuse of elderly or dependent adults. Existing law permits a party to a civil action who is over 70 years of age to petition the court for preference under certain circumstances. Under existing law, an aggrieved party may appeal certain orders and judgments, including an order dismissing or denying a petition to compel arbitration. Existing law specifies the time in which specified actions must occur during an appeal.

 

This bill would require the court of appeal, in an appeal of an order dismissing or denying a petition to compel arbitration involving a claim under the Elder and Dependent Adult Civil Protection Act in which a party has been granted a court preference, to issue its decision no later than 100 days after the notice of appeal is filed, except as specified. This bill would require the Judicial Council, no later than July 1, 2017, to adopt rules implementing this provision and shortening the time within which a party may file a notice of appeal in these cases.

Bill Signed by Governor (9/24/16)

 

  • AB 736 by Assemblymember Ken Cooley (D-Rancho Cordova) – State teachers' retirement: executive positions

 

 

The Teachers’ Retirement Law creates the State Teachers’ Retirement System and State Teachers’ Retirement Plan for the purpose of providing teachers and other specified employees with financially sound retirement plans. The law provides for the administration of the system and the plan by the Teachers’ Retirement Board and authorizes the board to appoint employees as necessary for those purposes. The law requires the board to fix the compensation of specified executive and managerial positions, including chief executive officer, chief investment officer, and general counsel.

 

This bill would provide the duty to fix the compensation of specified executive and managerial positions, described above, applies to a single position in the various job categories. The bill would additionally require the board to fix the compensation of a chief operating officer and a chief financial officer. The bill would impose specified limits on the annual percentage increase in salary paid to a person who served in either of those positions on January 1, 2016, and who does not separate from service in that position prior to the date on which the increase is applied.

 

Existing law prohibits, among others, a chief of staff, deputy chief executive officer, or an equivalent senior management position, for a period of 2 years after leaving that position, from appearing before or communicating with the board for the purpose of influencing actions or proceedings, for compensation, as specified.

 

This bill would remove that restriction from the positions listed above and instead apply the restriction to the chief operating officer and individuals who held career executive assignment positions that reported directly to either the chief executive officer or the chief operating officer.

 

 

  • AB 1687 by Assemblymember Ian C. Calderon (D-Whittier) – Customer records: age information: commercial online entertainment employment service providers

 

 

Existing law requires a business that owns, licenses, or maintains personal information about a California resident to implement and maintain reasonable security procedures and practices appropriate to the nature of the information, to protect the personal information from unauthorized access, destruction, use, modification, or disclosure. Existing law provides specified civil penalties for a violation of these provisions.

 

This bill would prohibit a commercial online entertainment employment service provider that enters into a contractual agreement to provide specified employment services to an individual paid subscriber from publishing information about the subscriber’s age in an online profile of the subscriber and would require the provider, within 5 days, to remove from public view in an online profile of the subscriber certain information regarding the subscriber’s age on any companion Internet Web site under the provider’s control if requested by the subscriber. The bill would define terms for purposes of these provisions. Under the bill, a provider that permits the public to upload or modify content on its own Internet Web site or any Internet Web site under its control without prior review by that provider would not be in violation of these provisions unless the subscriber first requested the provider to remove age information.

  • AB 1875 by Assemblymember Rocky Chávez (R-Oceanside) – State teachers' retirement: option beneficiaries: trusts

 

 

Existing law, the Teachers’ Retirement Law, establishes the State Teachers’ Retirement System (STRS) and creates the Defined Benefit Program of the State Teachers’ Retirement Plan, which provides a defined benefit to members of the program, based on final compensation, credited service, and age at retirement, subject to certain variations. STRS is governed by the Teachers’ Retirement Board. Existing law establishes the Cash Balance Benefit Program, administered by the Teachers’ Retirement Board, as a separate benefit program within the State Teachers’ Retirement Plan in order to provide a retirement plan for persons employed to perform creditable service for less than 50% of full-time service. Existing law permits members of STRS to select option beneficiaries and participants in the Cash Balance Benefit Program to select annuity beneficiaries for the purpose of receiving a retirement allowance or an annuity, respectively, upon the member’s or the participant’s death. Existing law specifically prohibits a trust from being an option beneficiary under STRS.

 

This bill would permit irrevocable trusts, with specified characteristics, that are established for individuals who are disabled to be an option beneficiary or annuity beneficiary, as described above, for the defined benefit program and the Cash Balance Benefit Program. The bill would require the trust to be for the sole benefit of a single beneficiary and that any other beneficiaries be limited to successor beneficiaries. The bill would require, with respect to the trust’s interest in the member’s or in the participant’s benefits, that the beneficiary of the trust be considered the designated beneficiary for the purpose of determining eligibility for, and the amount and determination of, benefits.

 

 

The bill would require a member or participant to provide specified documentation if a trust is to be designated an option beneficiary, including a certification that the trust meets relevant requirements, to be signed by the member or participant and acting trustees. The bill would require trustees acting at the time of the death of the member or participant to provide a similar, signed certification and additionally certify that the trust has not been revoked, modified, or amended, in a manner that would cause the certification to be incorrect. The bill would allow a member or participant to change a beneficiary designation without penalty for the purpose of designating a trust as a beneficiary if certain requirements are met. The bill would require, if the trust becomes invalid or terminates, that the benefit or annuity be paid to the beneficiary, if eligible, with associated rights and responsibilities also accruing to that person. The bill would provide that the board is not required to determine the powers of a trustee or the validity of a trust in the context, that such a determination shall not be inferred and, provided the board acts in good faith, as specified, would immunize the board, system, and plan from liability. The bill would make conforming changes and, with respect to the Cash Balance Benefit Program, revise the circumstances under which a participant may change an option beneficiary after retirement changes.

  • AB 2844, Bloom. Public contracts: discrimination

 

Existing law governs the procurement process for contracts of specified public entities. Existing law, the Unruh Civil Rights Act, states that all persons within this state are free and equal and, no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status, are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments. Existing law, the California Fair Employment and Housing Act, protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.

 

This bill would, with certain exceptions, require a person that submits a bid or proposal to, or otherwise proposes to enter into or renew a contract with, a state agency with respect to any contract in the amount of $100,000 or more to certify, under penalty of perjury, at the time the bid or proposal is submitted or the contract is renewed that they are in compliance with the Unruh Civil Rights Act and the California Fair Employment and Housing Act, and that any policy that they have adopted against any sovereign nation or peoples recognized by the government of the United States, including, but not limited to, the nation and people of Israel, is not used to discriminate in violation of the Unruh Civil Rights Act or the California Fair Employment and Housing Act. By requiring a person to certify under penalty of perjury, this bill would expand the definition of a crime, thereby imposing a state-mandated local program.

 

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

 

Bills Signed by Governor (9/23/16)

 

  • AB 2036 by Assemblymember Patty Lopez (D-San Fernando) – Online child care job posting services: background check service providers: enforcement

 

Existing law prohibits a person, firm, partnership, association, or corporation from operating, establishing, managing, conducting, or maintaining a child day care facility without a current valid license.

 

Existing law requires the Community Care Licensing Division of the State Department of Social Services to regulate child care licensees. Existing law requires the department to establish a registry of child care providers who are not required to be licensed, but who have undergone criminal background checks. These license-exempt providers are known as registered trustline child care providers. Existing law also requires a licensed child day care facility to make available to the public licensing reports and other licensing documents that pertain to a facility visit or a substantiated complaint investigation, among other licensing issues.

 

Existing law establishes in the State Treasury the Child Health and Safety Fund. Existing law authorizes the department to allocate these funds, upon appropriation by the Legislature, for purposes that include, among other things, technical assistance, orientation, training, and education of child day care facility providers.

 

This bill would require an online child care job posting service providing online information about nonlicensed potential child care providers to include a specified statement regarding the trustline registry on its Internet Web site in California. The bill would also require an online child care job posting service providing online information about licensed potential child care providers to include a statement regarding a parent’s right to specified complaint information on its Internet Web site in California. If an online child care job posting service provides access to a background check, the bill would require the service to include, on its Internet Web site in California, a written description of the background check provided by the background check service provider. The bill would make a background check service provider responsible for providing the online child care job posting service with certain information. The bill would authorize an online child care job posting service or background check service provider to be liable for a civil penalty for failing to comply with these requirements and would authorize the Attorney General, a city attorney, or a county counsel to bring such an action if certain requirements are met. The bill would also authorize an individual damaged by willful violation of these provisions to bring a civil cause of action for damages, as provided.

 

  • SB 24 by Senator Jerry Hill (D-San Mateo) – California Public Employees' Pension Reform Act of 2013: joint powers authority: employees

 

The California Public Employees’ Pension Reform Act of 2013 (PEPRA) requires a public retirement system, as defined, to modify its plan or plans to comply with the act and, among other provisions, establishes new retirement formulas that may not be exceeded by a public employer offering a defined benefit pension plan for employees first hired on or after January 1, 2013. Existing law, the Joint Exercise of Powers Act, generally authorizes 2 or more public agencies, by agreement, to jointly exercise any common power, which may include hiring employees and establishing retirement systems. PEPRA authorizes a joint powers authority formed by the Cities of Brea and Fullerton on or after January 1, 2013, to provide its employees the defined benefit plan or formula that those employees received from their respective employers prior to the exercise of a common power, to which the employee is associated, by the joint powers authority to any employee of specified cities who is not a new member and subsequently is employed by the joint powers authority within 180 days of the city providing for the exercise of a common power, to which the employee was associated, by the joint powers authority.

 

This bill would authorize a joint powers authority formed by the Belmont Fire Protection District, the Estero Municipal Improvement District, and the City of San Mateo on or after January 1, 2013, to provide employees who are not new members under PEPRA with the defined benefit plan or formula that was received by those employees from their respective employers on December 31, 2012, if they are employed by the joint powers authority within 180 days of the agency providing for the exercise of a common power, to which the employee was associated, by the joint powers authority. The bill would prohibit the formation of a joint powers authority on or after January 1, 2013, in a manner that would exempt a new employee or a new member from the requirements of PEPRA.

 

This bill would make legislative findings and declarations as to the necessity of a special statute for the Belmont Fire Protection District, the Estero Municipal Improvement District, and the City of San Mateo.

 

Bill Vetoed by Governor (9/23/16)

 

  • AB 1853 by Assemblymember Jim Cooper (D-Elk Grove) – County employees' retirement: districts: retirement system governance. A veto message can be found here

 

Dang v. Maruichi American Corporation (CA2/2 B269005, filed 9/1/16, pub. ord. 9/22/16) Wrongful Termination of Supervisor/No NLRA Preemption

 

Plaintiff and appellant Khanh Dang sued his former employer, defendant and respondent Maruichi American Corporation (Maruichi), for wrongful termination in violation of public policy, claiming that Maruichi discharged him for engaging in concerted activity relating to unionizing efforts.  The trial court granted summary judgment in Maruichi’s favor.  The court found it lacked jurisdiction because Dang’s claim was preempted by the National Labor Relations Act (NLRA; 29 U.S.C. § 151 et seq.) under San Diego Unions v. Garmon (1959) 359 U.S. 236 (Garmon). 

 

On appeal, Dang argues that, as a supervisor, he is not covered under the NLRA, and that the NLRA does not reach his claim.  Based on the evidence presented on the motion for summary judgment, we find there is no basis to conclude Dang’s claim is arguably subject to the NLRA.  Accordingly, we reverse.

 

http://www.courts.ca.gov/opinions/documents/B269005.PDF

 

Bills Signed by Governor (9/21/16)

 

  • AB 1840 by Assemblymember Mike A. Gipson (D-Carson) – State agencies: interns and student assistants: hiring preference

 

Existing law requires state agencies, when hiring for internships and student assistant positions, to give preference, as defined, to persons who are, or have been, dependent children in foster care. Existing law requires the preference to be granted to applicants up to 26 years of age.

 

This bill would require state agencies, when hiring for internships and student assistant positions, also to give preference to homeless youth and formerly incarcerated youth, as defined. This bill would also require any application for an internship and student assistant position with a state agency to allow the applicant to identify that the applicant is eligible for these preferences, but would prohibit the application from requiring the applicant to identify the specific category that entitles him or her for eligibility.

 

  • AB 2025 by Assemblymember Lorena Gonzalez (D-San Diego) – Barbering and cosmetology: labor law education requirements

 

Existing law, the Barbering and Cosmetology Act, establishes the State Board of Barbering and Cosmetology for the licensure and regulation of barbers, cosmetologists, estheticians, manicurists, electrologists, and apprentices. Existing law requires the board to carry out a list of duties, including making rules and regulations, conducting and administering license examinations, issuing licenses to qualified applicants, and disciplining persons who violate the act.

 

This bill would require that the board offer and make available all written materials provided to licensees and applicants in English, Korean, Spanish, and Vietnamese.

 

Existing law requires the board to establish a Health and Safety Advisory Committee to provide the board with advice and recommendations on health and safety issues before the board.

 

This bill would specify that the health and safety issues are those that impact licensees, including how to ensure licensees are aware of basic labor laws, as specified.

 

Existing law requires every application for admission to examination and licensure to be verified by the oath of the applicant.

 

This bill would additionally require every application for admission to examination and licensure and every electronic application to renew a license to include a signed acknowledgment that the applicant understands his or her rights as a licensee as outlined in informational materials on basic labor laws that the applicant is provided by the board with the application or renewal application.

 

Existing law requires the licensure of any person, firm, or corporation operating an establishment engaged in a practice regulated by the board. Existing law requires a separate license for each location where the establishment operates. Existing law requires applicants to submit an application, accompanied by a prescribed fee. Existing law prohibits the board from issuing a license to any applicant who has committed specified acts or crimes which are grounds for denial of licensure in effect at the time the new application is submitted.

 

This bill would require, as part of a complete application for a license to operate an establishment, and an electronic application to renew a license to operate an establishment, a signed acknowledgment that the applicant understands the informational materials on basic labor laws the applicant is provided by the board with the application or renewal application and that establishments are responsible for compliance with any applicable labor laws of the state.

 

Existing law requires the board to keep a registration record of each licensee containing the name, address, license number, date issued, and any facts that the applicant may have stated in the application for examination for licensure.

 

This bill would require the board to collect, through optional questions on a written application for a license and in an electronic application to renew a license, the language preference of the applicant.

Existing law requires the board to admit to a licensing examination an applicant who meets certain qualifications, including having completed one or more courses, as specified, offered by a school approved by the board. Existing law requires the board to develop or adopt a health and safety course on hazardous substances that is required to be taught in schools approved by the board. Existing law requires course development to include pilot testing of the course and training classes to prepare instructors to effectively use the course.

 

This bill would require the health and safety course that the board is required to develop or adopt to additionally cover basic labor laws, as specified.

 

This bill’s provisions would become operative on July 1, 2017.

 

  • AB 2105 by Assemblymember Freddie Rodriguez (D-Pomona) – Workforce development: allied health professions

 

Existing law establishes the California Workforce Development Board as the body responsible for assisting the Governor in the development, oversight, and continuous improvement of California’s workforce investment system and the alignment of the education and workforce investment systems to the needs of the 21st century economy and workforce. Existing law requires the board, among other things, to prepare and submit to the appropriate policy committees of the Legislature a report on the board’s findings and recommendations regarding expanding job training and employment for allied health professions.

 

This bill would require the Department of Consumer Affairs, by January 1, 2020, to engage in a stakeholder process to update policies and remove barriers to facilitate the development of earn and learn training programs in the allied health professions, including barriers identified in the report described above, as specified.

 

  • AB 2375 by the Committee on Public Employees, Retirement, and Social Security – Public Employees' Retirement System: omnibus bill

 

(1) Existing law requires all state and local retirement systems to secure, not less than triennially, the services of an enrolled actuary, who is required to perform a valuation of the system. Existing law requires all state and local public retirement systems to submit audited financial statements to the Controller at the earliest practicable opportunity within 6 months of the close of each fiscal year. Existing law requires the Controller to review these reports and to publish an annual report on the financial condition of all state and local public retirement systems, as specified. Existing law requires the Controller to establish an advisory committee, including enrolled actuaries, to assist state and local systems with their reporting duties. Existing law requires the Legislature and local legislative bodies, when considering changes in retirement benefits or other postemployment benefits, to secure the services of an actuary to provide a statement of the actuarial impact upon future annual costs, except as specified. Existing law establishes the California Actuarial Advisory Panel, which consists of a specified membership that includes enrolled actuaries. Existing law requires the panel to provide impartial and independent information on pensions, other postemployment benefits, and best practices to public agencies.

 

This bill would delete references to enrolled actuaries for purposes of the provisions described above. The bill would substitute for this designation, for purposes of establishing the advisory committee and the actuarial advisory panel, as described above, actuaries who have attained the designation of Associate or Fellow of the Society of Actuaries. The bill would substitute for the enrolled actuaries designation, for purposes of the triennial valuation and the reporting requirements described above, actuaries who satisfy the qualification standards for actuaries issuing statements of actuarial opinion in the United States with regard to pensions or other postemployment benefits.

 

(2) Existing law, the Public Employees’ Retirement Law, creates the Public Employees’ Retirement System (PERS) for the purpose of providing pension benefits to state employees and employees of contracting agencies and prescribes the rights and duties of members of the system and their beneficiaries. Existing law vests management and control of PERS in its board of administration. PERS provides a defined benefit to members of the program, based on final compensation, credited service, and age at retirement, subject to certain variations.

 

Existing law prescribes various definitions of final compensation based on employment classification, bargaining unit, date of hire, and date of retirement, among other things.

This bill would revise these definitions to remove redundant language and make technical and style changes.

 

(3) Existing law requires the board to provide the Legislature, the Governor, and the Chair of the California Actuarial Advisory Panel a specified report in connection with state employee retirement plans. Existing law requires the Chair of the California Actuarial Advisory Panel, within 30 days of receipt of the report, at a specified, publicly noticed hearing, to make a presentation on certain issues relating to investment returns and amortization.

 

This bill would require that the presentation described above to be made each legislative session and that the presentation be based on the report made by the board.

 

(4) Existing law authorizes the board to charge interest, at the actuarial interest rate, on the amount of any payment due and unpaid by a contracting agency until payment is received.

 

This bill would instead permit the board to charge interest on payments due and unpaid at the greater of the annual return on the system’s investments for the year prior to the year in which payments are not timely made or a simple annual rate of 10%.

 

(5) In addition to the above, existing law authorizes the board to assess a contracting agency that fails to make contributions when due interest at an annual rate of 10% and the costs of collection, including reasonable legal fees. In the case of repeated delinquencies, the board may assess the contracting agency a penalty of 10% of the delinquent amount.

 

This bill would recast these provision to authorize the board, if a contracting agency fails to fully pay any installment of contributions when due, to assess a penalty of 10% of the total amount due and unpaid, including accrued and unpaid interest. The bill would permit the penalty to be assessed once during each 30-day period that the outstanding amount remains unpaid. The bill would also specify that the contracting agency may be assessed the costs of collection, including reasonable legal fees and litigation costs, including, without limitation, legal fees and legal costs incurred in bankruptcy, when necessary to collect any amounts due.

 

(6) Existing law authorizes the board to terminate a local agency contract if the contracting agency fails for 30 days after demand by the board to pay any installment of required contributions or fails for three months after demand to file any information required for administration of the agency’s employees. Existing law permits the board to reduce benefits in certain instances when contributions are inadequate to fund them. Existing law authorizes the board to merge a plan that has been terminated into the terminated agency pool without benefit reduction or with a lesser reduction if certain conditions are met.

This bill would delete references to merging a plan and instead specify that the board may elect to not impose a reduction on a plan, or to impose a lesser reduction on a plan, that has been terminated if those acts will not impact the actuarial soundness of the terminated agency pool. The bill would make related changes by deleting administrative provisions relating to the sequence for transferring assets in relation to the reduction of benefits.

(7) Existing law authorizes certain members who are either academic employees of the California State University or certificated employees of school districts employed on a part-time basis to receive full-time service credit and the benefits related to that status if both the member and employer elect to make the appropriate additional contributions and other requirements are met. Existing law limits the application of these provisions to 5 years of part-time status.

 

This bill would extend the authorization described above to academic employees of community college districts. The bill would also make a correctional change in this regard.

 

(8) Existing law requires payment of interest on a preretirement or postretirement death allowance or a preretirement or postretirement lump-sum benefit if not paid within a specified time after the date of death of an annuitant. Existing law prescribes the method of calculating interest for this purpose.

This bill would instead require that interest be calculated at 7%, pursuant to the California Constitution.

 

(9) Existing law requires a surviving domestic partner be treated in the same manner as a surviving spouse for purposes of postretirement survivor’s allowances if certain conditions are met.

This bill would require that an individual who is the same gender as a member be treated in the same manner as a surviving spouse for purposes of postretirement survivor’s allowances if certain conditions are met.

 

(10) Existing law, the Public Employees’ Medical and Hospital Care Act (PEMHCA), which is administered by the Board of Administration of the Public Employees’ Retirement System, authorizes the board to contract for health benefit plans for employees and annuitants, as defined, which may include employees and annuitants of contracting agencies. Existing law grants eligible, uninsured family members of specified firefighters or peace officers whose deaths are the result of injury or disease arising out of their duties the status of annuitants for purposes of receiving benefits under PEMHCA. Existing law requires employers to notify the board within 10 business days of the death of the employee in this context if a spouse of family member may be eligible for enrollment in a health benefit plan in this regard.

This bill would revise the duty of employers to notify the board to also require that they provide updated contact information of the surviving spouse or family member if that person may be eligible for enrollment.

  • AB 2536 by Assemblymember Ed Chau (D-Arcadia) – Pupil discipline and safety: cyber sexual bullying.

 

(1) Existing law prohibits the suspension of a pupil from school or the recommendation of a pupil for expulsion from school unless the school district superintendent or the principal of the school in which the pupil is enrolled determines that the pupil has committed any of several specified acts, including, but not limited to, engaging in acts of bullying by means of an electronic act.

 

This bill would include engaging in an act of cyber sexual bullying, as defined, as an act of bullying by means of an electronic act for which a pupil may be suspended or expelled from school.

 

(2) Existing law requires the State Department of Education to display current information, and periodically update information, on curricula and other resources that specifically address bias-related discrimination, harassment, intimidation, and bullying based on certain actual or perceived characteristics on the California Healthy Kids Resource Center Internet Web site and other appropriate department Internet Web sites where information about discrimination, harassment, intimidation, and bullying is posted.

 

This bill would add cyber sexual bullying to this list of topics on which the department would be required to provide information. The bill would require the department to annually inform school districts of the information on the California Healthy Kids Resource Center Internet Web site and other appropriate department Internet Web sites where information about cyber sexual bullying is posted. The bill would encourage school districts to inform pupils regarding the available information and resources on the department’s Internet Web sites regarding the dangers and consequences of cyber sexual bullying to help reduce the instances of cyber sexual bullying.

 

(3) This bill would incorporate additional changes to Section 48900 of the Education Code proposed by AB 2212 that would become operative if this bill and AB 2212 are both enacted and this bill is enacted last.

 

Estate of Barton v. ADT Securities Services Pension (9th Cir. 13-56379 rehrg. den. 9/20/16) ERISA

 

The panel denied a petition for panel rehearing and, on behalf of the court, denied a petition for rehearing en banc in an ERISA case.

 

Dissenting from the denial of rehearing en banc, Judge N.R. Smith, joined by Judges O’Scannlain, Tallman, Gould, Bybee, Callahan, Bea and Ikuta, wrote that the panel’s opinion ignored Supreme Court and Ninth Circuit precedent in placing on the ERISA plan administrator the burden of proof regarding the plaintiff’s eligibility for pension benefits.

 

Perez v. U-Haul Co. of CA (CA2/7  B262029 9/16/16) PAGA/Arbitration

 

Plaintiffs Sergio Perez and Erick Veliz Ramos filed a representative action under the Private Attorneys General Act of 2004 (PAGA) (Lab. Code, §§ 2698 et seq.), alleging that U-Haul Company of California (U-Haul) violated several provisions of the Labor Code, including overtime and meal break requirements.  U-Haul filed a motion to compel plaintiffs to individually arbitrate whether they qualified as “aggrieved employee[s],” and therefore had standing to pursue a PAGA claim.  (See Labor Code, § 2699, subd. (a).)  U-Haul asserted that all other issues regarding the PAGA claim should be stayed pending resolution of the arbitration.  The trial court denied the motion, concluding that California law prohibits an employer from compelling an employee to split the litigation of a PAGA claim between multiple forums.  We affirm.  

 

United Educators of S.F. v. CA. Unemp. Ins. (2016) 247 Cal.App.4th 1235 (SC S235903/A142858 & A143428 rev. granted 9/15/16) Substitute Teachers/On-Call Employees/Unemployment Insurance Benefits

 

Petition for review after the Court of Appeal affirmed the judgment in an action for writ of administrative mandate. This case presents issues concerning the entitlement of substitute teachers and other on-call paraprofessional employees to unemployment insurance benefits when they are not called to work during a summer school term or session.  Votes: Cantil-Sakauye, C.J., Werdegar, Chin, Liu, Cuéllar and Kruger, JJ., granting review is hereby amended to read in its entirety: The petitions for review are granted. Corrigan, J., was absent and did not participate. Review granted/brief due.

 

Bill Signed by Governor (9/16/16)

 

  • AB 2093 by Assemblymember Marc Steinorth (R-Rancho Cucamonga) – Disability access

 

Existing law requires the State Architect to establish and publicize a program for the voluntary certification by the state of any person who meets specified criteria as a Certified Access Specialist (CASp).

 

Existing law requires a commercial property owner or lessor to state on every lease form or rental agreement executed on or after July 1, 2013, whether the property has been determined by a CASp to meet all applicable construction-related accessibility standards.

 

This bill would require the commercial property owner or lessor to state on every lease form or rental agreement executed on or after January 1, 2017, whether or not the premises have been inspected by a CASp specialist. The bill would require a commercial property owner or lessor to provide the lessee or tenant with a current disability access inspection certificate and inspection report or a copy of a CASp inspection report, as specified, if the premises have been issued an inspection report indicating that they meet applicable standards. If the premises have not been issued a disability access inspection certificate, the bill would require a statement on the lease form or rental agreement stating that, upon request of the lessee or tenant, the property owner may not prohibit a CASp inspection of the subject premises and that the parties must mutually agree on the arrangements for the time and manner of the inspection, the payment of the associated fee, and the cost of making repairs, as specified.

 

The bill would require a property owner or lessor of premises that have been subject to CASp inspection, and that remain unmodified or altered, as specified, since the date of the inspection and the lease or rental agreement with regard to construction-related accessibility standards, to provide a copy of the report that is to remain confidential except as necessary to make repairs and corrections, as specified.

 

The bill would establish a presumption that making repairs or modifications necessary to correct violations of construction-related accessibility standards that are noted in a CASp report is the responsibility of the commercial property owner or lessor unless otherwise agreed upon by the parties to the lease or rental agreement. The bill would grant a prospective lessee or tenant the opportunity to review any CASp report prior to execution of the lease or rental agreement, and if the report is not provided at least 48 hours prior to execution of a lease or rental agreement, the bill would grant a prospective lessee or tenant the right to rescind the lease or agreement, based upon information in the report, for 72 hours after execution.

This bill would declare that it is to take effect immediately as an urgency statute.

 

Bill Vetoed by Governor (9/16/16)

 

  • SB 1162 by Senator Tom Berryhill (R-Modesto) – Public employees' retirement: Mammoth Lakes Fire District. A veto message can be found here.

 

Herrera v. Command Security (9th Cir. 14-55525 9/14/16) Railway Labor Act/Equitable Tolling/Status Quo Claim

 

The panel reversed the district court’s summary judgment in favor of an employer in an action brought under the Railway Labor Act by a union representing employees at Los Angeles International Airport.

 

The employer sought to remove the union as its employees’ designated representative.

 

The panel held that equitable tolling principles applied to the union’s unlawful interference and coercion claim under 45 U.S.C. § 152, Third and Fourth. The panel held that this claim was not time-barred because the employer had notice of the union’s claims, and the union acted reasonably when it attempted to use the extensive remedies afforded by the Act. The panel also held that the employer violated § 152,Third and Fourth, when it solicited union removal petition signatures, bypassed the union to solicit employees directly, and refused to recognize and negotiate with the union. The panel remanded and directed the district court to grant summary judgment in favor of the union on this claim.

 

The panel held that the district court erred in concluding that it lacked subject matter jurisdiction over the union’s status quo claim under §§ 152, Seventh; 155; and 156. The union alleged that the employer unilaterally altered the parties’ collective bargaining agreement. The panel held that this claim was a major dispute, relating to employer interference and status quo violations, rather than a representation dispute within the exclusive jurisdiction of the National Mediation Board. The panel remanded the status quo claim for the district court to determine whether it was timely, and, if so, to grant summary judgment in favor of the union.

 

The panel also directed the district court to grant summary judgment in favor of the union on a failure to mediate claim under § 152, First.

 

Bills Signed by Governor 9/14/16

 

 

  • AB 326 by Assemblymember Jim L. Frazier Jr. (D-Oakley) – Public works: prevailing wage rates: wage and penalty assessments

 

Existing law requires the Labor Commissioner to issue a civil wage and penalty assessment to a contractor or subcontractor, or both, if the Labor Commissioner determines, after investigation, that the contractor or subcontractor, or both, violated the laws regulating public works contracts, including the payment of prevailing wages. Existing law also requires the awarding body, as defined, to withhold from payments due under a contract for public work an amount sufficient to satisfy the civil wage and penalty assessment issued by the Labor Commissioner, and to give notice of the withholding to the affected contractor or subcontractor.

 

Existing law permits the affected contractor or subcontractor to obtain review of a civil wage and penalty assessment or a notice of withholding, as specified. Existing law provides that, after 60 days following the service of a civil wage and penalty assessment or notice, the affected contractor, subcontractor, and surety on a bond issued to secure the payment of wages, as provided, become liable for liquidated damages in an amount equal to the amount of unpaid wages, as specified. Existing law provides that there is no liability for liquidated damages if a contractor, subcontractor, or surety deposits the full amount of the assessment or notice, including penalties, with the Department of Industrial Relations to hold in escrow pending administrative or judicial review. Existing law requires the department to release those funds, plus any interest earned, to the persons and entities found to be entitled to the funds at the conclusion of all administrative and judicial review.

 

This bill would require the department to release the funds deposited in escrow plus interest earned to those persons and entities within 30 days following either the conclusion of all administrative and judicial review or upon the department receiving written notice from the Labor Commissioner or his or her designee of a settlement or other final disposition of an assessment issued, as specified, or from the authorized representative of the awarding body of a settlement or other final disposition of a notice issued, as specified.

 

 

  • AB 2337 by Assemblymember Autumn R. Burke (D-Inglewood) – Employment protections: victims of domestic violence, sexual assault, or stalking

 

Existing law prohibits an employer from discharging or in any manner discriminating or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for specified purposes related to addressing the domestic violence, sexual assault, or stalking. Existing law provides that any employee who is discharged, threatened with discharge, demoted, suspended, or in any manner discriminated or retaliated against in the terms and conditions of employment by his or her employer because the employee has taken time off for those purposes is entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer, as well as appropriate equitable relief, and is allowed to file a complaint with the Division of Labor Standards Enforcement within the Department of Industrial Relations. Existing law establishes the Labor Commissioner as the head of the Division of Labor Standards Enforcement.

 

This bill would require employers to inform each employee of his or her rights established under those laws by providing specific information in writing to new employees upon hire and to other employees upon request. The bill would also require the Labor Commissioner, on or before July 1, 2017, to develop a form an employer may elect to use to comply with these provisions and to post it on the commissioner’s Internet Web site. Employers would not be required to comply with the notice of rights requirement until the commissioner posts the form.

 

 

  • SB 1353 by Senator Richard Pan (D-Sacramento) – State Teachers' Retirement System: funding

 

Existing law, the Teachers’ Retirement Law, establishes the State Teachers’ Retirement System and creates the Defined Benefit Program of the State Teachers’ Retirement Plan, which provides a defined benefit to members of the program, based on final compensation, credited service, and age at retirement, subject to certain variations. The Defined Benefit Program is funded by employer and employee contributions, investment returns, and state appropriations, which are deposited or credited to the Teachers’ Retirement Fund. Existing law prescribes methods for calculating the amounts of employer and employee contributions as well as state appropriations for support of the system. For the 2017–18 fiscal year, and each fiscal year thereafter, existing law requires the board to increase or decrease certain percentages relating to the state appropriation to reflect the contribution required to eliminate the unfunded actuarial obligation of the system. Existing law prohibits these requirements from being construed as applicable to any unfunded actuarial obligation resulting from any benefit increase or change in member or employer contribution rate under this part that occurs after July 1, 1990.

 

This bill would qualify this prohibition to clarify that specified state contributions made in this regard be allocated to reduce any unfunded actuarial obligation resulting from the benefits and contribution rates in effect as of July 1, 1990.

 

Bill Signed by Governor 9/13/16

 

  • AB 1627 by the Committee on Budget – State employment: memorandum of understanding: Bargaining Unit 7

(1) Existing law provides that a provision of a memorandum of understanding reached between the state employer and a recognized employee organization representing state civil service employees that requires the expenditure of funds does not become effective unless approved by the Legislature in the annual Budget Act.

 

This bill would approve provisions of a memorandum of understanding entered into between the state employer and State Bargaining Unit 7, the California Statewide Law Enforcement Association, that require the expenditure of funds and would provide that these provisions will become effective even if these provisions are approved by the Legislature in legislation other than the annual Budget Act.

 

This bill would provide that provisions of the memorandum of understanding approved by this bill that require the expenditure of funds will not take effect unless funds for those provisions are specifically appropriated by the Legislature and would authorize the state employer and the affected employee organization to meet and confer to renegotiate the affected provisions if funds for those provisions are not specifically appropriated by the Legislature. The bill would appropriate $38,611,000 in augmentation of certain items of the Budget Act of 2016, according to a specified schedule, for State Bargaining Unit 7 employee compensation for expenditure in the 2016–17 fiscal year. The bill would appropriate to the Controller from the General Fund, unallocated special funds, including federal funds and unallocated nongovernmental cost funds, and any other fund from which state employees are compensated, the amount necessary for the payment of compensation and employee benefits to state employees covered by the memorandum of understanding described above if the Budget Act is not enacted on or before July 1 in the 2017–18 or 2018–19 fiscal years, as specified.

 

(2) The Public Employees’ Medical and Hospital Care Act (PEMHCA), which is administered by the Board of Administration of the Public Employees’ Retirement System, prescribes methods for calculating the state employer contribution for postemployment health care benefits for eligible retired public employees and their families and for the vesting of these benefits. PEMHCA requires the employer contribution for an employee or annuitant who is in employment or retired from state service to be adjusted by the Legislature in the annual Budget Act, as specified. PEMHCA prescribes different ways of calculating the employer contributions for employees and annuitants depending on date of hire, years of service, and bargaining unit.

 

This bill, for state employees who are first employed and become members of the retirement system on or after January 1, 2017, and are represented by State Bargaining Unit 7, as specified, would limit the employer contribution for annuitants to 80% of the weighted average of the health benefit plan premiums for an active employee enrolled for self-alone, during the benefit year to which the formula is applied, for the 4 health benefit plans with the largest state civil service enrollment, as specified. The bill would similarly limit the employer contribution for an enrolled family member of an annuitant to 80% of the weighted average of the additional premiums required for enrollment of those family members during the benefit year to which the formula is applied and would provide the same limit on employer contributions for annuitants enrolled in Medicare health benefit plans.

 

(3) PEMHCA requires state employees to have a specified number of years of state service, depending on hiring date and other factors, before they may receive any portion of the employer contribution payable for annuitants for postretirement health benefits and increases the percentage they may receive based upon additional years of service.

 

This bill would prohibit state employees who are first employed and become members of the retirement system on or after January 1, 2017, and are represented by State Bargaining Unit 7, as specified, from receiving any portion of the employer contribution payable for annuitants unless the person is credited with at least 15 years of state service at the time of retirement. The bill would prescribe the percentage of the employer contribution payable for postretirement health benefits for these employees based on the number of completed years of credited state service at retirement, with 50% after 15 credited years of service and 100% after 25 or more years of service.

 

(4) PEMHCA generally requires that an employee or annuitant who is enrolled in, or whose family member is enrolled in, a Medicare health benefit plan be paid the amount of the Medicare Part B premiums, as specified, and prohibits this payment from exceeding the difference between the maximum employer contribution and the amount contributed by the employer toward the cost of premiums for the health benefit plan in which the employee or annuitant and his or her family members are enrolled. Existing law excepts from this requirement state employees who are first employed and become members of the retirement system on or after specified dates and are represented by specified state bargaining units.

 

This bill would also except from the requirement described above state employees who are first employed and become members of the retirement system on or after January 1, 2017, and are represented by State Bargaining Unit 7, as specified.

 

(5) PEMHCA establishes the Public Employees’ Contingency Reserve Fund for the purpose of funding health benefits and funding administrative expenses. PEMHCA establishes the Annuitants’ Health Care Coverage Fund, which is continuously appropriated, for the purpose prefunding health care coverage for annuitants, including administrative costs. PEMHCA defines “prefunding” for these purposes. Existing law requires the state and employees of State Bargaining Unit 9, 10, or 12 to prefund retiree health care with the goal of reaching a 50% cost sharing of normal costs by July 1, 2019, and prescribes schedules of contribution percentages in this regard.

 

This bill would require the state and employees of State Bargaining Unit 7 to prefund retiree health care with the goal of reaching a 50% cost sharing of normal costs by July 1, 2019, and would prescribe a schedule of contribution percentages in this regard, with the contributions to be deposited in the Annuitants’ Health Care Coverage Fund. By depositing new revenue in a continuously appropriated fund, this bill would make an appropriation.

 

(6) Existing law, the State Employees’ Dental Care Act, authorizes the state to enter into contracts, upon negotiations with employee organizations, with carriers for dental care plans for employees, annuitants, and eligible family members. Existing law permits these plans to include premiums to be paid by employees and annuitants and also authorizes the plans to be self-funded if an employer determines it to be cost effective. Existing law prohibits specified employees from receiving an employer contribution for these benefits for annuitants unless the person is credited with 10 or more years of state service or for other specified employees unless the person is credited with 15 or more years of state service.

 

This bill would prohibit state employees, as specified, who are first employed and become members of the retirement system on or after January 1, 2017, and are represented by State Bargaining Unit 7 from receiving an employer contribution for dental benefits, as described above, for annuitants unless the person is credited with 15 or more years of state service. The bill would prescribe the percentage of the employer contribution payable for these dental benefits for these employees based on the number of completed years of credited state service at retirement, with 50% after 15 credited years of service and 100% after 25 or more years of service.

 

(7) This bill would declare that it is to take effect immediately as a bill providing for appropriations related to the Budget Bill.

CALIFORNIA CASE LAW ALERT 

© 2016 by Phyllis W. Cheng. William Morris' 1875 Acanthus wallpaper in public domain.  Created with Wix.com.

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