Proposed Bills in Sacramento

Welcome back to our newsletter! Today, we’re excited to share with you some proposed employment-related bills introduced in this 2024 legislative cycle. Let’s dive right in.  

Preventing Discrimination

First up is AB 1815, which proposes to expand the Unruh Civil Rights Act and California Fair Employment and Housing Act (“FEHA”). These existing laws are aimed at preventing discrimination in business establishments and employment on a wide range of protected characteristics, including race. Currently, FEHA defines race to include traits “historically” associated with race, including, but not limited to, hair texture and certain hairstyles (including braids, locks, and twists). AB 1815 proposes to remove the term “historically” from this definition and add a similar definition under the Unruh Civil Rights Act. If this bill is passed, any traits associated with race would be protected under both laws. The traits would no longer need to be “historically” associated with race to receive protection. But the bill does not explain how the determination is made. 

Independent Contractors 

Next is AB 1928, which aims to repeal California’s existing framework for classifying workers as employees or independent contractors. Currently, the law presumes workers are employees unless they meet specific criteria outlined in the “ABC” test. Under this test, a worker is an employee unless the hiring entity establishes that: 

(A) the worker is free from the control and direction of the hiring entity;  

(B) the work is outside the usual course of the hiring entity’s business; and  

(C) the worker has his or her own independent trade relating to the work being done.

AB 1928 seeks to reinstate the test outlined in the California Supreme Court Case, S.G. Borello & Sons, Inc. v. Dept. of Industrial Relations. Unlike the ABC test, the Borello test utilizes more than three factors, and no single factor is dispositive. If this bill becomes law, it could make it easier for employers to hire workers as independent contractors.  

“Qualifying Act of Violence”

Another bill in the pipeline is AB 2499. California law currently protects employees from retaliation or discrimination if they need to take time off to serve on a jury. It also protects certain victims of crime or abuse who need to take time off to appear as a witness or obtain certain relief—such as a restraining order. And employers must provide reasonable accommodations for employees who are victims of domestic violence, sexual assault, or stalking. If an employer has 25 or more employees, it also needs to provide time off for victims of crime or abuse to seek medical attention for their injuries, to obtain certain services as a result of the crime or abuse, or to participate in safety planning and take other actions to increase safety from future crime or abuse. All the above protections are codified in Labor Code sections 230 and 230.1. But AB 2499 would remove these provisions from the Labor Code and recast a revised version under FEHA. This would remove the 25-employee requirement, replace the terms crime or abuse with “qualifying act of violence,” and it would expand the reasons for which an employee can take time off. Finally, it would extend reasonable accommodations to employees who are victims or family members of victims. 

Criminal History

SB 1345 aims to expand employee protections. Currently, FEHA prohibits employers with five or more employees from asking about an applicant’s conviction history on job applications before making a conditional employment offer. This bill would further protect applicants by making it illegal for employers to take adverse actions based solely or partly on an applicant’s criminal history, unless the employer can demonstrate (1) the applicant’s criminal history has a direct and adverse relationship with one or more specific job duties; and (2) a business necessity requires the adverse action. Additionally, SB 1345 would make it unlawful for employers to require, as a condition of employment, that applicants waive their privacy rights regarding criminal-history information or to provide authorization for its acquisition, unless the employer can demonstrate a business necessity. When requesting authorization to obtain an applicant’s criminal-history information, an employer would need to provide written notice to an applicant that does one of two things. If the employer claims a business necessity, the notice would need to outline specific information regarding that necessity. If the employer does not claim a business necessity, the notice must clearly explain that (1) the applicant can refuse the request, and (2) that the law prohibits the employer from taking adverse action based on the applicant’s refusal.  

Driver’s License Requirement

Finally, we have SB 1100. This bill aims to expand FEHA’s protections by making it illegal for employers to include a statement in a job advertisement, posting, application, or other material that an applicant must have a driver’s license unless (1) the employer reasonably expects driving to be one of the job duties; and (2) the employer reasonably believes that satisfying the duty using an alternative form of transportation would not be comparable in travel time or cost to the employer. The bill defines “alternative form of transportation” to include using a ride-hailing service, taxi, carpooling, bicycling, or walking.  

These are some interesting developments on the horizon that could affect California employment law next year. As of the date of this newsletter, these bills are still in committee. But we’ll be keeping a close eye on them as they make their way through the legislative process, so stay tuned for more updates!  

Best,

Keith W. Carlson and Nima A. Jalali