Proposed Legislation Likely to Create Problems for California Employers

06.10.2021
Employment Law Reporter, Ervin Cohen & Jessup LLP

In the COVID era, the California Legislature has made every effort to keep California workers safe, often to a degree which makes life difficult for employers. Despite the progress made through nationwide vaccinations and all-time low case rates, the Legislature has seized on the opportunity presented by the continuing pandemic to propose ever-expanding employee protections. If passed, these bills would create new liability and further obstacles for California employers.

Assembly Bill 616 – Forced Unionization Process for Agricultural Employees

Agricultural employees currently have the right to form and join labor organizations and engage in collective bargaining with respect to wages, terms of employment and other employment conditions, by means of a secret ballot. This bill would create an alternative election process permitting the selection of labor representatives through a ballot card election by submitting a petition to the Agricultural Labor Relations Board signed by a majority of employees in the bargaining unit. The board would have the authority to conduct an investigation into this alternative election process and certify the results. The bill would require an employer who appeals or petitions for a writ of review of any order of the board involving monetary awards to employees to post an appeal bond in the amount in the entire economic value of the order.

Status: As of May 19, 2021, this bill has passed the Assembly and was referred to the Committee on Labor, Public Employment and Retirement.

Assembly Bill 1003 – Criminal Liability for Employer’s Errors

This proposed bill would categorize the non-payment of wages as “grand theft” (as defined by the Penal Code) if the non-payment exceeds $950 for one employee or $2,350 in the aggregate for 2 or more employees, in any consecutive 12-month period. The statute defines “wages” to include gratuities, benefits or other compensation. In addition, the term “employee” is defined to include independent contractors for purposes of this legislation.

Status: On May 27, 2021, a third reading of the Assembly Bill was held and the bill passed. AB 1003 is currently pending before the Senate.

Assembly Bill 1041 – Further Expansion of the California Family Rights Act and Paid Family Leave

This proposed bill would expand persons for whom an employee can take leave to provide care to include any other individual related by blood or whose close association with the employee is the equivalent of a family relationship. This new standard would apply both to the California Family Rights Act and the Healthy Workplaces, Healthy Families Act of 2014.

Status: On May 27, 2021, a third reading of the Assembly Bill was held and the bill passed. It is currently pending before the Senate.

Assembly Bill 1074 – Right of First Refusal to Laid Off Employees

Under this proposed legislation, an employer would be required to offer its laid-off employees information about job positions that become available for which the laid-off employees are qualified. The employer would also be required to offer positions to those laid-off employees based on a preference system, as long as the lay-off or termination was due to any non-disciplinary reason related to the COVID-19 pandemic. If an employer fails to comply with this requirement, the aggrieved employee would be authorized to file a complaint with the Division of Labor Standards Enforcement for specified relief, including hiring and reinstatement rights and an award of backpay.

Status: On June 3, 2021, a third reading of the Assembly Bill was held and the bill passed. AB 1074 is now pending before the Senate.

Senate Bill 62 – Increased Costs and Liability for Employers in the Garment Manufacturing Industry

This proposed bill would eliminate piece rate as a method of payment, and create joint and several liability for contractors and the employer for any wage violations. Further, SB 62 imposes statutory damages of $200 per pay period per employee for violators. The bill also provides for certain evidentiary assumptions to be made in the employee’s favor in a Labor Commissioner hearing.

Status: On May 24, 2021, this bill was passed by the Senate and was ordered to be read in the Assembly.

We will continue to monitor the progress of these bills in the weeks and months ahead. In the meantime, if you don’t like what you see, let your representative hear about it!


This publication is published by the law firm of Ervin Cohen & Jessup LLP. The publication is intended to present an overview of current legal trends; no article should be construed as representing advice on specific, individual legal matters, but rather as general commentary on the subject discussed. Your questions and comments are always welcome. Articles may be reprinted with permission. Copyright 2021. All rights reserved. ECJ is a registered service mark of Ervin Cohen & Jessup LLP. For information concerning this or other publications of the firm, or to advise us of an address change, please send your request to info@ecjlaw.com.

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