Below are the bills that FWC positioned on this session.
Labor and Employment
AB 3080 (Gonzalez Fletcher): Employment discrimination: arbitration (FWC OPPOSE)
This bill would prohibit an employer from using an arbitration agreement as a condition of employment. Categorized as a “Job Killer” by the Chamber, FWC along with a broad business community worked hard to defeat the bill from its inception.
- This bill has been highly publicized due to the celebrity support from those including Jane Fonda, and Gretchen Carlson.
- Of the 29 identified “Job Killers” this is the only one that made its way to Governor Brown’s desk.
Status: Signed by Governor; Chapter 735, Statutes of 2018.
Prior to SB 1121 morphing into the AB 375 clean-up vehicle, the Chamber coalition, including FWC, lobbied intensely in opposition to the bill’s original intent (as noted above). Senator Dodd has already indicated he will bring the bill back in 2019.
Status: Signed by Governor; Chapter 55, Statutes of 2018.
SB 1121 (Dodd), California Consumer Privacy Act of 2018 (FWC initially opposed)
Provides ‘technical’ clean-up fixes to AB 375, and was gutted and amended within the last couple months of session. Originally, this bill was directly aimed at the Equifax data breach scenario, and allowed individuals whose personal information may have been breached to sue a business without proof of injury. Understanding that there were many technical errors in AB 375 given the haste in which it was drafted, Senator Dodd made his bill available for clean-up purposes. It does the following:
Delays enforcement until 6 months after the AG publishes regulations or July 1, 2020 — whichever is sooner. Clarifies that an individual’s private right of action is restricted to data breaches only. Clarifies that penalties are “not more than $2,500 for each violation or $7,500 for each intentional violation.”
Status: Dead; Author pulled the bill from its committee on hearing on 4/24 due to the Ag opposition coalition’s efforts.
AB 375 (Chau) codifies the California Consumer Privacy Act (CCPA)
Allows Californians to know what personal information is being collected about them, sold, or disclosed – and to whom.
Individuals can direct companies to not sell their personal information. Individuals can direct companies to delete their personal information. Companies cannot discriminate against individuals who exercise these rights. Individuals can exercise a private right of action. Further requires the California Attorney General to promulgate regulations.
AB 2828 (Friedman) Waste discharge requirements: produced water: oil and gas operations (FWC OPPOSE)
Would have authorized a regional board to approve a waste discharge requirement for the use or reuse of produced water from an oil and gas operation for agriculture purposes or for groundwater recharge, if (after a public hearing), it finds that the California Council on Science and Technology has reviewed the best available independent scientific evidence and has found the use will not pose a significant risk to the public from any contaminants in the produced water.
The AG community came out in full force to defeat this bill after some amendments that made the bill more problematic.
Status: Signed by Governor; Chapter 362, Statutes of 2018.
SB 993 (Hertzberg) Sales and use taxes: service tax: qualified business (FWC OPPOSE)
Imposed a 3% tax on services purchased by businesses in California, with some exceptions, adding another layer of taxes onto California companies, raising costs, and potentially putting them at a competitive disadvantage. Senator Hertzberg did amend the bill by providing a “sweetener” to ease concerns that the bill was just another tax grab. The sweetener essentially reduced the sales tax on goods by a proportionate amount to the revenue raised by the tax. Nonetheless, the business community staunchly opposed the bill.
The bill was only heard in committee in May as a Special Order of Business, in the form of an informational hearing. We can expect further hearings on this issue intended to provide a broad overview of our existing tax structure as well as to discuss the concerns with implementing and administering a tax on services.
Status: Dead; the Bill was held in Appropriations Committee.
SB 973 (Dodd) Alcoholic beverages: annual license fees: surcharge: distilled spirits manufacturers: free or discounted rides (FWC SUPPORT)
Doubles the funding for the Designated Driver Program (DDP), and helps to reduce the number of impaired drivers on the roadways.
Status: Signed by Governor; Chapter 689, Statutes of 2018.
SB 1503 (Committee on Governmental Organization) Alcoholic beverages: licensees
Authorizes ABC to place “reasonable conditions” upon retail licensees when any physical change or alteration is made to the licensed premises. Moreover, this bill also clarifies that a condition may be modified or removed when there is a substantial change in a condition that led to its original imposition. This is intended to allow ABC to revisit and reevaluate a condition that is considered outdated, vague, or otherwise unenforceable.
FWC met with ABC before the bill was introduced to ensure FWC had no issues with the bill.
Status: Signed by Governor; Chapter 493, Statutes of 2018.
AB 2452 (Aguiar-Curry) Alcoholic beverages: tied-house restrictions (FWC SUPPORT)
Eliminates the prohibition on the presence of pictures or illustrations of the retailer’s premises in the advertisements for instructional events.
Status: Signed by Governor; Chapter 705, Statutes of 2018.
SB 1430 (Glazer) Winegrowers: tasting rooms (FWC SUPPORT)
Revises current prohibitions to allow a winegrower or brandy manufacturer to sell wine or brandy to consumers, or to engage in winetasting activities, at up to 2 licensed branch premises.
FWC met with the author’s office early on, to address some potential concerns with the bill. FWC ultimately took a support position. Expanding the prohibition to allow for an additional offsite tasting room would benefit winemakers looking to increase the exposure of their product, without having to rely on customers visiting their production site.
Status: Signed by Governor; Chapter 718, Statutes of 2018.
AB 2887 (Aguiar-Curry) Migrant farm labor centers (FWC SUPPORT)
Increases local flexibility in the operation of state-owned farmworker housing centers by solidifying the partnership between the state and county directors. Further, it requires HCD to allow each annual operating contract the flexibility to decide the best opening and closing date for that year’s season. It also grants HCD the ability to approve a farmworker housing center’s proposal to reserve housing units for lower-income farmworkers based on local need.
Status: Signed by Governor; Chapter 999, Statutes of 2018.
AB 2524 (Wood) California Retail Food Code (FWC NEUTRAL)
Expands the definition of a food facility to include a catering operation and a host facility, and allows a catering operation to serve food at specified host facilities, breweries, wineries, or other locations approved by the local enforcement agency.
FWC opposed the bill as introduced. FWC met with the author’s office and sponsors of the bill several times and ultimately moved to a neutral position after receiving clarity over certain provisions. As chaptered, the bill gives wineries, breweries and other commercial spaces a third option for offering their customers food to purchase. Further, no extra requirements will be imposed on a winery.
Status: Signed by Governor; Chapter 868, Statutes of 2018.
AB 2751 (Stone) Agricultural labor relations (FWC OPPOSE)
Requires that the Agricultural Labor Relations Board, within one year of a finding of liability, process all decisions concerning monetary awards owed to agricultural employees, unless the ALRB certifies that there is good cause for a delay. This bill also creates new mediation and conciliation timeline requirements for appealing or disputing a final decision of the ALRB.
As a late session gut and amend, the AG coalition strongly opposed, given the bill is biased in that it is narrowly focus on awards solely against employers when there can be awards against unions under the ALRA. Further, it ignores the complexity of situations where ongoing court challenges of ALRB decisions or related matters are active.
Status: Vetoed by Governor Brown.
AB 1913 (Kalra) Foreign labor contractors (FWC OPPOSE)
Would have expanded the provisions of California’s impending foreign labor contracting regulations to also include agricultural workers under the H-2A visa program. FWC, along with a large AG coalition, lobbied against this bill from its inception. This program is already regulated at the federal level. Further, CA has a farm labor contractor licensing program managed by the Labor Commissioner’s Office, so the bill was duplicative and unnecessary.
Status: Failed passage on the Assembly Floor on 5/31; dead.
AB 2069 (Bonta) Medicinal cannabis: employment discrimination (FWC OPPOSE)
Would have undermined employers’ ability to provide a safe and drug-free workplace by creating a new protected classification of employees who use marijuana for medical purposes. As written, the bill would have exposed employers to costly and unnecessary litigation under the Fair Employment and Housing Act (FEHA).
Status: Held in Assembly Appropriations Committee; dead.
AB 2613 (Reyes) Failure to pay wages: penalties (FWC OPPOSE)
AB 2613 imposed an additional layer of penalties for wage and hour violations in addition to the existing penalties already in the Private Attorneys General Act (PAGA). Further, the bill imposed personal liability on individuals working for a business for even unintentional wage and hour violations.
Status: Dead; Author did not have the votes to take the bill up for a floor vote.
PAGA: Private Attorneys General Act
PAGA, a statute enacted by the California legislature in 2003, authorizes private litigants to bring an action against employers for violations of the California Labor Code. Aggrieved employees receive 25% any civil penalties recovered, while the state receives the remaining 75%. However, PAGA has resulted in an inundation of litigation against California employers, usually often over minor violations of the law where the employee(S) suffered no harm. Despite complaints from employers, organized labor has been strongly opposed to making any changes to PAGA, even to address frivolous lawsuits.
With the hopes of improving PAGA and providing relief to employers, there have been many attempts over the past several years to reform PAGA, but so far, nothing substantial has made it through the legislative process. Five PAGA reform bills were introduced in the legislature in 2017, and none of them made it out of their first policy committee. Several efforts were made in 2018, but unfortunately they suffered a similar fate. FWC supported these major PAGA reform measures.
AB 281 (Salas) Labor Code Private Attorneys General Act of 2004: right to cure (FWC SUPPORT)
Introduced in 2017, the bill was pulled from hearing in Assembly Labor Committee in early 2018, as the author did not have enough votes. The bill would have reformed PAGA to allow an employer the right to cure a violation before a financially devastating representative action is filed. Additionally, the bill would have extended the period of time in which the employer may cure the violation from 33 to 65 calendar days.
AB 2016 (Fong) Labor Code Private Attorneys General Act of 2004: civil actions (FWC SUPPORT)
Would have provided transparency to the PAGA process by ensuring employers are provided with a detailed account of the alleged violation, including the number of aggrieved employees involved prior to the filing of lawsuit. Additionally, the bill would have extended the time from 33 to 65 days for an employer to cure violations and avoid the expense of a lawsuit, allowing them to save time, money, and jobs.
Status: Dead. The bill failed passage in the first policy committee.
AB 2907 (Flora) Labor Code Private Attorneys General Act of 2004 (FWC SUPPORT) Existing law authorizes an employer to cure a violation of certain requirements regarding itemized wage statements brought under these provisions, within a 33-day period after being notified of the violation, by providing a fully compliant itemized wage statement to each aggrieved employee, as specified. This bill would have authorized an employer to cure any violation brought under the act regarding itemized wage statements by using the cure procedure described above.
Status: Dead. The bill failed passage in the first policy committee.
As no PAGA legislation has been successful thus far, there has been discussion regarding placing a PAGA reform initiative on the 2020 ballot. A ballot initiative may be the best and only path to take if any real reform is to be made in the area.
Opportunity to Work & Predictive Scheduling
One of the more controversial bills introduced in the California Legislature in 2017, AB 5 by Assemblywoman Lorena Gonzalez Fletcher, sought to enact a statewide version of “Opportunity to Work,” which requires employers to provide additional hours of work to part-time employees. AB 5 would have applied to employers with 10 or more employees in the state, and would have required employers to offer additional hours of work to an existing employee before hiring any additional employees. FWC took an oppose position early on, given the troublesome nature of the bill in relation to winery labor and seasonal requirements. The bill carried over from 2017 and was heard in the Assembly Appropriations Committee in January 2018, but was held under submission in the Suspense File. The business community thought the Assemblywoman would reintroduce a similar bill at a later point in session, but this never came to fruition.
In 2019, there is the potential for similar statewide legislation to remerge, which may include “predictive scheduling.” While California does provide some labor protections for employees that work on-call shifts, it has yet to adopt a state-wide predictive scheduling law. FWC will continue to monitor and engage in this issue area.
AB 2166 (Caballero) California Farm Bill: agricultural technology (FWC SUPPORT) Would have developed a statewide food and agriculture innovation ecosystem and create a multi-agency panel to review and address conflicts on agriculture from state regulations.
Status: Dead; held in Assembly Appropriations Committee.
AB 2377 (Irwin) Agriculture: Cannella Environmental Farming Act of 1995: technical assistance grant program (FWC SUPPORT)
Requires the Department of Food and Agriculture to establish a technical assistance grant program to provide funds to technical assistance providers to give assistance to the following:
Healthy Soils Program Alternative manure management practices programs, State Water Efficiency and Enhancement Program applicants.
Prop 65 New Warning Requirements
OEHHA regulations, adopted in August 2016, went into effect on August 30, 2018. The amended regulations include new requirements for specific content language of warnings. The indicated purpose for the updated warnings is to offer “clear and reasonable” warnings combined with more thorough information to consumers. The new regulations are pertinent for all products manufactured after August 30, 2018, and apply to businesses with 10 or more employees. The new warnings are required for alcohol and BPA, and the signage must be provided by the manufacturer or distributor to the retailer.
Additionally, there is changes to how those warnings are communicated to consumers, including on product labeling, warnings on signs and shelf tags, as well as products made available on the Internet. It is crucial that businesses recognize the risks and intricacies related to the requirements in these new Prop 65 Clear and Reasonable Warnings regulations. A business found to be in violation of Prop 65 is subject to civil penalties of up to $2,500 per day for each violation.
Significant amongst the new state regulations is the requisite for a more detailed warning that includes explicitly pinpointing the chemical and its conceivable harm (cancer, birth defects, or reproductive harm). Additionally, the regulations require:
- _A pictograph supplementing the warning in the form of a black exclamation point in a yellow triangle with a black outline.
- _The warning must be printed in a minimum 6 point font with the following mandatory language:
WARNING: THIS PRODUCT AND EXPOSURE TO CHEMICALS INCLUDING [ONE OR MORE OF THE LISTED CHEMICALS] WHICH [IS/ARE] KNOWN TO THE STATE OF CALIFORNIA TO CAUSE [CANCER AND/OR BIRTH DEFECTS OR OTHER REPRODUCTIVE HARM]. FOR MORE INFORMATION, GO TO www.P65Warnings.ca.gov.
- _Manufacturers must ship their products with required warning labels affixed or the warnings must be supplied to the retailer.
- _In terms of internet sales, the warning label must be contained on the product display page with a hyperlink to www.P65Warnings.ca.gov.The warning must also be furnished on products sold through the internet.
- _For products sold in markets where warnings are provided in languages (other than English), the warning must correspondingly be provided in that other language.
- _The warning must be renewed annually (or within 90 days of when a different or additional listed chemical or risk of harm is included).
It is important to note that these new regulations do not determine when a warning is required. Rather, they provide guidance for businesses once they have decided to provide a warning for a given exposure to
a listed chemical. (Other regulations can help businesses determine when a warning may be required. See Articles 2, 7 and 8 of the Proposition 65 regulations)
California Code of Regulations
Cal/OSHA- Indoor heat Illness Regulations
In 2016, Governor Brown signed and approved Senate Bill 1167 which went into effect on January 1, 2017. The law directs Cal/OSHA to draft and propose heat illness and injury prevention standards for indoor workplaces by January 1, 2019. In early 2018, Cal/OSHA released a proposed standard entitled Heat Illness Prevention in Indoor Places of Employment, which imposed extremely onerous requirements on employers. This proposal would have required employers to conduct the following:
•Establish, implement and maintain an effective heat illness prevention plan for “indoor heat illness”
•Measure the wet bulb globe temperature (WBGT)
•Identify each individual employee’s work activity levels and clothing adjustment factors
•Conduct heat stress hazard assessment of all facilities
•Provide access to potable drinking water
•Provide for preventative cool-down rest periods of no less than 5 minutes
•Establish effective first-aid and emergency response procedures for responding to possible heat illness
•Provide engineering controls to reduce employee exposures to reduce heat stress including but not limited to: isolation of hot processes or work areas, shielding of radiant heat sources, insulating hot objects, and local exhaust ventilation
•Provide administrative controls including but not limit to: reduced activity levels, work-rest schedules and cooled rest areas
•Remind employees throughout the work shift to drink plenty of water
The Chamber, leading a broad business community coalition including FWC, has been working with Cal/OSHA throughout the year to scale back the proposed regulations to make them more amenable to employers. In June, Cal/OSHA issued a new discussion draft that is significantly different in its approach, and remarkably better than the initial version. The Chamber, on behalf of the coalition, submitted comments to this draft as well, which FWC signed onto, to tighten up some of the language in the requirements. The regulations are currently pending with CalOSHA.