By Anthony J. Oncidi and Nayirie Kuyumjian

The California Chamber of Commerce has just identified a new raft of recently introduced “job killer” bills that have been proposed in the California Legislature.

This year’s list of 27 proposed laws includes measures that would impose additional penalties for an employer’s failure to pay wages; increase the personal income tax for the highest earners in California; ban settlement agreements for claims arising under the Fair Employment and Housing Act (FEHA) and the California Labor Code; and prohibit arbitration of claims arising under FEHA and the California Labor Code.

As in years past, these bills are being pushed by the special interest groups that have the greatest sway in Sacramento: Labor unions and plaintiffs’ lawyers.  CalChamber President and CEO Allan Zaremberg said, “Each bill on this year’s job killer list poses a threat to certainty for employers and investors in our state.”

• Assembly Bill 2613 (Reyes; D-Grand Terrace) New Wage Statement Penalties — would revise the California Labor Code to impose additional penalties (above what is already imposed under the Private Attorneys General Act) payable to each affected employee per pay period on an employer or other individual acting as an agent or employee of another who fails to pay or causes a failure to pay specific wages of employees. In short, the bill could impose individual liability on managers and employees for the non-payment of wages.
• Assembly Bill 2069 (Bonta; D-Oakland) Medical Marijuana in Employment — creates a new protected category under FEHA for the use of medical marijuana.
• Assembly Bill 2351 (Eggman; D-Stockton) Targeted Tax on High Earners — increases the personal income tax rate from 13.3% (already the highest rate in the country) to 14.3% for the highest earners in the State (the top 1% already pay half of all income taxes in the State of California).  This increase in income taxes could lead to a further loss of high-income taxpayers.
• ACA 22  (McCarty; D-Sacramento) “Middle Class Fiscal Relief Act” – more than doubles California’s 8.84% corporate tax rate (already one of the highest rates in the nation) to 18.84%.
• Assembly Bill 2765  (Low; D-Campbell) Portable Benefits For The “Gig Economy” — seeks to add “digital marketplace” companies to be covered under FEHA and thereby expand the reach of the anti-discrimination statute to workers in the “gig economy” (i.e., contractors typically hired for on-demand single projects). The bill also includes “familial status” as a new protected classification under FEHA for workers in the digital marketplace. In addition, the bill adds uncertainty to the classification of independent contractors by providing that marketplace contractors will be treated as independent contractors for purposes of the bill, but leaving open how those contractors would be classified for other state/federal laws.
• Assembly Bill 3080 (Gonzalez Fletcher; D-San Diego) Ban on Settlement Agreements and Arbitration Agreements — bans settlement agreements related to claims arising under FEHA and the California Labor Code and prohibits arbitration agreements as a condition of employment for any claims arising under FEHA or the California Labor Code, including class action waivers. (If enacted, this law will certainly be attacked on federal preemption grounds under the Federal Arbitration Act.)
• Senate Bill 1284  (Jackson; D-Santa Barbara) Disclosure of Company Pay Data — requires California employers to submit pay data to the state Department of Industrial Relations. A number of factors are associated with pay criteria, which would not be reflected in the data submitted to the Department, thus subjecting employers to a potential of increased litigation, including baseless allegations related to discrimination or unequal pay.
• Senate Bill 1300  (Jackson; D-Santa Barbara) Removes Legal Standing and Prohibits Release of Claims — removes the requirement that a plaintiff must prove standing in alleging claims related to failure to prevent harassment or discrimination. Thus, a plaintiff would not be required to demonstrate that he or she suffered from sexual harassment or discrimination prior to bringing a lawsuit. In addition, the bill prohibits a general waiver or release of claims in exchange for a bonus, raise, or condition of continued employment and also prohibits the inclusion of non-disparagement provisions in settlement or employment agreements.

We will continue to track the progress of these and any other “job killer” bills as they move through the Legislature. For more information on how these proposed bills may impact you, contact your Proskauer relationship attorney.