The legislature’s Labor and Public Employees Committee heard public testimony over the last week on a number of bills that are incredibly problematic for employers.
For example, HB 6536 requires businesses to reimburse employees for all necessary expenditures related to working from home.
Examples included in the bill include computers, phones, ink, toner, and data plans. If the employee uses a data plan for their own personal use in addition to work, they would only be required to be reimbursed for 50% of the cost of that plan.
Failure to reimburse an employee for a necessary expenditure could result in a $1,000 fine.
The bill begs so many questions it is difficult to know where to begin with objections.
For example, who determines whether an item is necessary expenditure or not? A computer may very well be necessary to perform a job, but does it have to be the top of the line model? Is an expensive ergonomic chair a necessary expenditure?
Given the number of tablets, computers, and smart televisions in the average household, why is a business on the hook for 50% of an existing data plan? Are we really going to impose a fine on a business that refuses to reimburse an employee for a $3.99 ream of paper?
To say the concept needs additional thought is an understatement.
HB 6474 requires employers perform an individualized assessment when deciding whether to reject a job applicant due to their criminal background.
While CBIA is generally supportive of individualized assessments, HB 6474 lacks significant, critical details.
Under the bill, an employer could only reject an applicant due to their criminal background if: (1) there was a substantial nexus between the criminal act and the job the person is seeking; (2) there is substantial evidence the person has not been rehabilitated; and (3) insufficient time has elapsed since the criminal act.
Failure to prove all three of these elements could result in an applicant bringing a claim for discrimination against an employer.
And there will be claims. The bill provides no guidance on how to establish a nexus between the job and the criminal act, how to prove someone has been rehabilitated, or what amount of time needs to have elapsed since the criminal act in question.
Without this critical information, no employer could possibly defend their usage of a criminal background check without incurring significant legal risk.
Paid Sick Leave Expansion
HB 6537 massively expands the state’s sick leave law. Currently, businesses with 50 or more employees need to provide up to 40 hours each year of paid sick leave to all service workers.
The bill requires that all businesses provide all employees with up to 40 hours annual paid sick leave.
It also reduces the number of hours needed to be worked by employees to accumulate paid sick leave, and vastly expands the number of family members one is allowed to use sick leave to care for.
Employers also must provide up to two weeks of paid sick leave for COVID-19 purposes. This can be used retroactively or up to four weeks after the public health emergency is over.
Also on the docket was a bill invalidating many noncompete agreements.
Finally there’s HB 6475, which should frighten businesses of all sizes.
This bill allows unions and nonprofit organizations to bring public enforcement civil action against employers. In essence, it is an outsourcing of the state Attorney General’s powers to a third party.
California is the only state with a Private Attorneys General Act, and it quickly has become abused by plaintiff’s attorneys.
The number of PAGA claims increased 1,000% since it passed in 2004, and is expected to exceed 2,000% by 2022.The reason: penalty stacking.
Like HB 6475, in addition to whatever claims for damages are being sought in the action, the law allows for an additional $500 penalty for every two weeks of the violation.
If a variety of even unrelated claims are being brought on behalf of a number of employees, the additional penalties quickly exceed the damages from the underlying claim.
Under HB 6475, the third party bringing the claim and the state are also allowed to take at least half of the awarded civil penalties.
HB 6475 provides a financial incentive for unions and nonprofits to seek to undermine contractual relationships between employers and employees and further their own personal and political goals.
CBIA strongly supports HB 6596, which removes blanket prohibitions within the general statutes that prevent individuals from obtaining a professional license if they have a criminal history, regardless of whether their history is in any way related to the license they are seeking to obtain.
If the past criminal history is relevant to the professional license being obtained, that individual would still not be eligible for the license.
This is a sensible policy that will help remove barriers preventing individuals with criminal backgrounds from obtaining meaningful employment.
An individual that has been successfully rehabilitated should be free to seek a professional license. This effort demonstrates a commitment to putting past mistakes behind them.
CBIA also supports the proposal because it does not discourage conversations about one’s criminal history at the risk of a claim for discriminatory hiring practices, making it different than HB 6474.
An employer and an applicant with a criminal history can still have an open conversation about the history at the appropriate time under law.
Further, it creates opportunities for individuals with a criminal history. If an individual is not prevented from obtaining a professional license solely due to that history, they have the option to start their own business in their chosen profession.