Happy New Legislative Year! Although we are beginning the third month of 2019 with a relatively new legislature in the Capitol, a new legislative session is just beginning. The last day to introduce bills for this legislative session passed on February 22, 2019, with a last minute flurry of bill submissions. Below are brief summaries of some of the bills that were introduced to the legislature prior to the EIA’s Legislative Committee meeting on February 21, 2019.
On the liability front, legislators are proposing a number of bills that will expand employee protections available under statutes such as the California Labor Code and the California Fair Employment and Housing Act. These include:
- AB 9: Will extend from one year to three years the timeframe in which a person has to file a complaint with the California Department of Fair Employment and Housing after an alleged unlawful practice occurs to them.
- AB 171: This bill prohibits employers from discriminating or retaliating against an employee because of his or her status as a victim of sexual harassment. A rebuttable presumption of retaliation would be established if the employer takes specific action against the victim employee within 90 days following the date the victim provides notice to the employer or the employer has actual knowledge of the status. As currently written, it is unclear if the victim has to establish that they were an actual victim of sexual harassment to be protected or if they only need to allege that they were sexually harassed. AB 628 also seeks to provide protection to victims of sexual harassment, but would extend the protections to family members of victims of sexual harassment who take time off from work to provide assistance to the victim.
- AB 403: Currently, persons who believe they have been discriminated against or discharged in violation of any law under the jurisdiction of the Labor Commissioner are required to file a complaint with the Division of Labor Standards Enforcement within 6 months of the alleged discriminatory act/discharge. This bill will extend that limitation period to three years.
- AB 749: On many occasions when an employer is resolving an employment claim/lawsuit with a former employee, the employer will include a term in the settlement agreement that prohibits the former employee from reapplying for a job with the employer at any point in the future. Such a term is also used on occasion if the employee is required to resign as a part of the settlement. This is typically done to eliminate a potential claim for retaliation by the former employee. This bill would prohibit an employment settlement from containing a provision that prohibits, prevents, or otherwise restricts the settling party from working for the employer again.
- SB 188: This bill will add to the definition of race under the California Fair Employment and Housing Act. Specifically, the definition would be amended to include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles such as braids, locks, and twists.
- Legislators are also trying to clarify the definition of what constitutes an independent contractor. For example, if passed, AB 5 will codify the ABC test that is applied by some courts to determine if a person is an employee or an independent contractor. Under the test, to establish an independent contractor relationship, the employer must show the worker was free from its control, performing work outside the usual course of its business, and customarily engaged in independent work. Meanwhile, AB 71 proposes to do away with the ABC test and instead create a specific multifactor test that would be used to determine if a person is an independent contractor.
Due to a concern over the mental health of students, AB 8 requires, on or before December 31, 2022, for a school, office of education, and charter school to have at least one mental health professional generally accessible on campus during school hours for every 600 pupils. If a school has fewer than 600 students, then the district will have to have a mental health professional to serve multiple schools.
After having trouble passing this bill last year, the legislature has again brought forward a bill that would increase the time limit for a person to commence an action to recover damages as a result of a claim of childhood sexual assault. AB 218 increases the time to commence an action to 22 years from the date the plaintiff attains the age of majority or within 5 years of the date the plaintiff discovers or reasonably should have discovered that a psychological injury was caused by sexual assault, whichever is later.
SB 138 requires the governing board of a school district or charter school to identify the most appropriate methods of informing parents and students about type 1 diabetes and to implement notification by January 1, 2021.
AB 543 requires each educational institution to create a poster that notifies pupils about the institution’s written policy on sexual harassment and to prominently display the poster in specified private and public areas on campus. AB 624 would require schools and postsecondary educational institutions to include the telephone numbers for the National Domestic Violence Hotline, National Sexual Assault Hotline, and a sexual or reproductive health hotline on the back of student identification cards.
There are also two bills that have been introduced related to school buses. AB 934 would require each school bus to be equipped with an internal video recording system as well as an external video system tied to the stop signal arm that swings out when a bus is stopped. School officials would have to monitor the video systems and notify local law enforcement if a vehicle does not stop when the signal arm is out and the lights of the bus are flashing. SB 371 would authorize school districts to install an automated school bus video enforcement system for the purpose of enforcing the prohibition against drivers not stopping when a school bus has initiated its flashing red light and signal arm.
Thus far, the legislature has introduced at least two bills that address the use of deadly force by peace officers. AB 392 would redefine the circumstances under which a peace officer can use deadly force to those occasions when the killing is in self-defense of the officer or another, is consistent with the legal standard for self-defense, or when the killing is necessary to prevent the escape of a fleeing felon whose immediate apprehension is necessary to prevent death or serious injury. The bill also would bar the officer’s ability to use self-defense as an argument to avoid criminal prosecution if the officer acted in a criminally negligent manner that caused the death, including if the officer’s criminally negligent actions created the need to use deadly force.
SB 230 would require law enforcement agencies to maintain a policy that provides guidelines on the use of force, utilizing de-escalation techniques, and other alternatives to force when feasible. Also required would be specific guidelines for the use of deadly force and factors for evaluating and reviewing use of force incidents. The use of force policy would also need to be accessible to the public.
AB 346 would add peace officers employed by a school district, county office of education, or community college to the list of public employees entitled to a leave of absence without loss of salary, in lieu of temporary disability benefits (aka Labor Code Section 4850 benefits), while disabled due to a work-related injury. Similarly, SB 416 would broaden the eligibility qualifications for peace officers for presumptive injuries.
Building off of the passage of AB 1749 last year, the legislature has introduced AB 932 which would extend workers’ compensation coverage to a firefighter who is injured out of state while engaging in fire-suppression or rescue operations, or protecting or preserving life or property. This bill would also make January 1, 2010, the date of injury for firefighters injured during the Las Vegas shooting. This would seemingly require entities to then accept each such claim filed by a firefighter.
If you have any questions regarding the above-described bills, please feel free to contact the EIA’s Chief Claims Officer, Mike Pott, or the EIA’s Director of Workers’ Compensation, Jen Hamelin, at 916-850-7300.
Keep up with all the bills being followed by the EIA's Legislative Committee on the Bills of Interest page.