Legislative Updates: Employment Law and Workers’ Compensation

Governor Edmund G. Brown Jr. has signed five bills related to California Workers' Compensation system:

AB 1168 establishes a fee schedule for vocational experts' services.

AB 378 establishes guidelines for dispensing compound drugs, the circumstances under which those drugs would be covered and the reimbursement amount, and removes the incentives for physicians to refer patients to pharmacies in which the physician or physician's family has a financial interest

AB 397 addresses contractors that do not have workers' compensation coverage but are entitled to exemptions by certifying they are still exempt or have gotten coverage at the time of their license renewal.

AB 335 requires the workers' compensation administrative director to work with the Commission on Health and Safety and Workers' Compensation (CHSWC) to develop regulations regarding notices to injured workers, to develop and make accessible a booklet written in plain language about the workers' comp claims process and is designed to streamline and simply other notices to employees.

AB 1426 eliminates the court administrator position.

Governor Brown also vetoed three bills related to the California Workers' Compensation system:

AB 211 Would have established a flat $6,000 supplemental job displacement voucher to cover retraining and skills enhancement for injured workers without clarifying the time frame when the injured worker can start receiving the voucher.

AB 584 would have required UR physicians to be licensed in California.

AB 947 would have broadened definition of the types of injuries that qualify for an extended time frame to receive TD benefits from 104 weeks to 240 weeks.

Governor Brown Jr. also signed into law additional bills that affect general employment law issues:

SB 459 enacts Labor Code section 226.8 which establishes significant penalties for knowingly and voluntarily misclassifying an employee as an Independent Contractor. The newly enacted law also creates joint and several liability for any person who for a fee or other remuneration knowingly advises an employer to misclassify an employee as an Independent Contractor (specifically excepting employees of the employer or attorneys). The law also requires that the employer disclose to the public on the employers web site any determination by a Court or Administrative Law tribunal of a finding of “ willful misclassification”.

SB 299 and AB 592 provide for enhanced protection for pregnancy leave including continuation of health care benefits during the leave period and makes unlawful any effort to interfere with, deny the exercise of any right granted by the law. If the employee fails to return from pregnancy disability leave, the employer may recoup from the employee the premiums the employer paid to continue the employee's coverage during the leave, unless the reason the employee did not return is because of a continuing disability or because the employee took a separate protected leave (e.g. maternity leave) under the FMLA/CFRA..

AB 469 requires employers to provide each employee, at the time of hire, with a notice that specifies (1) the pay rate and the basis, whether hourly, salary, commission or otherwise, as well as any overtime rate, (2) allowances, if any, claimed as part of the minimum wage, including meals or lodging, (3) the regular payday, (4) the name of the employer, including any “doing business as” names used by the employer; (5) the physical address and telephone number of the employer’s main office or principal place of business, and a mailing address if different, and (6) the name, address and telephone number of the employer’s workers’ compensation carrier. The employer must notify each employee in writing of any changes to the information set forth in the notice within 7 days of the changes, unless such changes are elsewhere reflected on a timely wage statement or other writing required by law to be provided.

AB 887 redefines gender to also mean a person’s gender identity and gender expression and defines gender expression as meaning a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth. Gender is defined as above for regulations that cross-reference the definition of gender. Regulations that include a person’s sex now include the above definition of gender.

AB 1236 known as The Employment Acceleration Act of 2011, prohibits the state, or a city, county, city and county, or special district, from requiring an employer to use an electronic employment verification system even as a condition of receiving a government contract, as a condition of applying for or maintaining a business license, or as a penalty for violating licensing or other similar laws. This does not apply where required by Federal Law, or as a condition of receiving federal funds, including the I-9 Employment Eligibility Verification form or other federal employment eligibility systems.

Assembly Bill 469 in part requires employers to provide each employee, at the time of hiring, with a notice that specifies the rate and the basis, whether hourly, salary, commission, or otherwise, of the employee's wages and to notify each employee in writing of any changes to the information set forth in the notice within 7 calendar days of the changes unless such changes are reflected on a timely wage statement or another writing, as specified. Included within the required disclosure is the name address and telephone number of the employer's workers compensation carrier.

AB 22 limits California employers' ability to use credit reports for employment purposes. Under the new law, employers (with the exception of certain financial institutions) are prohibited from obtaining or relying on credit reports for applicants and employees, unless the report is sought in relation to (1) a position in the California Department of Justice; (2) a managerial position (defined as a position that qualifies for the executive exemption from overtime); (3) a sworn peace officer or other law enforcement position; (4) a position for which credit information is required by law to be disclosed or obtained; (5) a position that involves regular access (other than in connection with routine solicitation of credit card applications in a retail establishment) to people's bank or credit card account information, social security number, and date of birth; (6) a position in which the employee would be a named signatory on the employer's bank or credit card account, authorized to transfer money on behalf of the employer, or authorized to enter into financial contracts on behalf of the employer; (7) a position that involves regular access to cash totaling $10,000 or more of the employer, a customer, or client during the workday; and (8) a position that involves access to confidential or proprietary information (defined as a legal "trade secret" under Civil Code 3426.1(d)).

If you would like more information regarding the new or vetoed statutes feel free to contact any PKNW attorney.