Calif. Workplace Bills Face Final Votes as Legislative Session Nears End
A bill to codify the California's Supreme Court decision in Dynamex remains the major workplace bill that everyone, including employment lawyers, is watching.
September 04, 2019 at 06:43 PM
5 minute read
A key employment bill has died in the California Legislature and another is on life support as lawmakers rush to finish work before the session ends Sept. 13.
Senate Bill 171, which would have required large employers to give the state data about their workers' pay rates as well as those workers' races, genders and ethnicities, died without debate in an Assembly fiscal committee Friday. Assembly Bill 170, which would make companies liable for the harassing acts of contracted supervisors, stalled on the Senate floor Tuesday, two votes short of passage.
The two bills are among a handful of measures being closely watched by employment lawyers in the final days of a session marked by organized labor seeking to push its agenda with a new governor and big Democratic majorities in both houses. Chief among their efforts is Assembly Bill 5, legislation to codify the California Supreme Court's worker classification ruling in Dynamex. That bill was still awaiting a vote on the Senate floor as of Wednesday afternoon.
"The outcome of AB 5 is significant for everybody," said Fisher & Phillips partner Jason Geller. "It potentially has a very broad applicability and the proposed exemptions are also quite broad."
The two bills that failed in recent days are similar to previous pieces of legislation vetoed by former Gov. Jerry Brown.
Sen. Hannah-Beth Jackson, D-Santa Barbara, said she was disappointed that her SB 171 died in the Assembly Appropriations Committee "but our larger fight for equal pay and for holding employers accountable for their pay practices is far from over. Women and their families are counting on us to fix the pay gap once and for all."
A spokesman for Assemblywoman Lorena Gonzalez, D-San Diego, said Wednesday that she will try to revive AB 170 before the session ends. Gonzalez introduced the bill in response to the experience of a former dishwasher, hired by a staffing agency, who said she was fired after reporting sexual harassment by an agency supervisor. Sandra Pezqueda sued the agency and the Rancho Palos Verdes resort where she washed dishes. She reached a settlement with the agency, but the resort has denied any liability.
Here's an update on other workplace bills still awaiting final votes.
AB 5. Uber, Lyft and DoorDash have threatened to fund a $90 million ballot initiative campaign if lawmakers don't exempt their workers from the bill's provisions. The three gig companies spent almost $475,000 combined on Capitol lobbying in the second quarter. Uber and Lyft have floated an alternative framework that would guarantee drivers a minimum level of earnings, paid sick and family leave, injury compensation and industry bargaining rights—as long as they are not classified as employees.
So far, legislative Democrats have showed no interest in exempting gig workers from the bill. And over the Labor Day weekend, Gov. Gavin Newsom offered his support for AB 5 in an op-ed in the Sacramento Bee. Still, Newsom's office has been negotiating with gig companies and labor on a potentially new classification that would allow workers to unionize but still not be deemed employees. That debate is likely to last well past the end of session.
Recent amendments to the bill have focused on exempting certain groups of workers, including lawyers, podiatrists and editorial cartoonists.
AB 9. The bill would extend the deadline for filing workplace harassment and discrimination claims with the state from one year to three years. Brown vetoed similar legislation last year on the grounds that a one-year deadline prompted quick resolution of complaints. But bill author Assemblywoman Eloise Gómez Reyes argues that harassment victims often don't know about their rights until after the deadline has passed.
AB 25. An amendment to the California Consumer Privacy Act, or CCPA, this bill would allow employers to continue collecting personal information about their workers and job applicants—at least until 2021.
"We do a lot of privacy work, just counseling companies on compliance with the CCPA," said Geller. "And whether employment is exempt is a big issue."
Labor organizations and privacy advocates opposed a blanket exemption for employers under the privacy law, which requires companies to disclose what personal data they collect and what they do with it. The one-year sunset clause is meant to give labor groups, privacy advocates and business associations time to negotiate compromise language.
AB 51. This bill, sponsored by the Consumer Attorneys of California and the California Labor Federation, would bar mandatory preemployment arbitration agreements. AB 51 has made the California Chamber of Commerce's dreaded "job-killer" list, but advocates hope they have a chance with Newsom to curb mandated arbitration, something they did not have with Brown.
If the bill passes and is signed by the governor, it will likely face a lawsuit from business groups that argue the state legislation is preempted by federal law.
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