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New for 2016 – Employment Laws

SB358 -- Equal Pay Act Addresses the Gender Wage Inequality Gap (January 1, 2016)

SB 358 was passed in 2015 in a further effort to close the gap between differences in pay among genders. This new law requires employers to pay employees performing substantially similar work with equal pay. Substantially similar work means a composite of skill, effort, and responsibility, performed under similar working conditions – but it need not be the same exact job. Once the employee shows a disparity in pay for substantially similar work, the employer must provide evidence that the employee is being paid differently based on a bona fide factor(s) such as a seniority system, a merit system, a system that measures earnings by quantity or quality of production, or another bona fide factor such as training, education or experience or some other non-gender based factor. This new law also prohibits an employer from discriminating, retaliating, or disciplining an employee for disclosing, discussing his/her wages with other employees and/or discriminating or retaliating against an employee for inquiring about their own, or co-workers’ wages for the purpose of enforcing their rights under the Equal Pay Act. Notably, an employer or person is not obliged to make any disclosures concerning employees' wages.

SB 501 -- Wage Garnishment Limitations (effective July 1, 2016)

Under the Wage Garnishment Law, a judgment creditor can seek garnishment of a person’s wages to satisfy a court judgment against them. The amount garnished is based on a person’s/employee’s/debtor’s wages. So for example, the more an employee/debtor earns the greater the garnishment. SB 501 amends this law reducing the maximum amount of disposable earnings that can be garnished to the lesser of either 25% of the individual’s disposable earnings for that week or 50% of the amount by which the individual’s disposable earnings for that week exceed 40 times the state minimum hourly wage.

SB 667 -- Extends the Time Period in Which to Reapply for Disability (July 1, 2016)

Under existing law, a disabled individual may file a disability claim with the Employment Development Department for disability insurance. Seven days after filing a disability claim, the employee is eligible to receive disability benefits equal to one-seventh of his or her weekly benefit amount for each full day during which he or she is unemployed due to a disability. The seven day period is called the “waiting period.” During this period, no disability benefits are payable. Under current law, a disability claimant must wait another seven days each time he or she files a disability claim, regarding the same or related condition, if the disability claims are separated by more than 14 days. SB 667 waives the seven day waiting period if the employee has already met the waiting period and files another disability claim related to the same or related disability within 60 days.

AB 987 -- Requesting an Accommodation for a Disability or Religious Belief is Protected (January 1, 2016)

Until recently, an employee who requested a disability or religious accommodation and was retaliated against did not have viable claim for retaliation under the California Fair Employment Housing Act (FEHA). Such a request was not deemed to be “protected activity” under the FEHA. AB 987 now clarifies that a request for reasonable accommodation on the basis of religion or disability is a protected activity even if the employee’s request is not accommodated.

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In the midst of the nationwide focus on immigration, three bills signed by Governor Brown in 2015 have added to and changed current laws affecting immigrants in employment in California under SB 600, AB 622 and AB 623.

SB 600 -- Prohibition of Discrimination Based on Immigration Status (January 1, 2016)

Existing law under the Unruh Civil Rights Act (Unruh), Civil Code § 51, provides that all persons are entitled to accommodations and services in business establishments regardless of their sex, color, race, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.

Effective January 1, 2016, Senate Bill 600 extends the protections of the Unruh to expressly prohibit discrimination on the basis of citizenship, primary language, and immigration status. This law would affect only how businesses serves customers, not how they employ persons. What this means is that employers are still required to employ only individuals who may legally work in the U.S.A.

AB 622 -- Verification of Employment May be an Unlawful Employment Practice (January 1, 2016)

AB 622 expands the definition of an unlawful employment practice to include the prohibition of arbitrary verifications under the E-Verify system. The E-Verify system is administered by the US Citizenship and Immigration Services, the US Department of Homeland Security, and the US Social Security Administration and allows participating employers to verify that applicants hired or employees are authorized to work in the U.S.A. Until recently, an employer could verify an applicant or employee’s authorization to work in the U.S.A. without legal repercussions. Assembly Bill 622 changes this law prohibiting an employer, person, or entity from using the Federal E-Verify system at a time or in a manner not required or authorized to check the employment authorization status of an existing employee or applicant that has not been given an offer of employment, except as required by federal law or as a condition of receiving federal funds. This new law also requires that employers provide affected employees with any notification received.

SB 623 -- Workers’ Compensation is Available Despite Citizenship/Immigration Status (January 1, 2016)

Uninsured Employers Benefit Trust Fund (UEBTF) provides workers’ compensation benefits to injured workers who have been injured on the job and who work for an illegally uninsured employer with additional benefits available for some injuries under the Subsequent Insurance Benefit Trust Fund (SIBTF). Until recently, not all employees injured on the job were eligible for workers’ compensation benefits or additional benefits. Instead, eligibility was based upon immigration status. SB 623 now amends current law so that no injured worker may be refused benefits from the UEBTF or the SIBTF based on their immigration status.

Sharon Hightower is a partner in the San Jose office. She can be reached at 408.286.0880 or .