End of Summer Brings Wave of New Laws Affecting California Employers
New Amendment to Labor Code Section 218.5 Restricts Employers' Ability to Collect Attorneys' Fees in Wage Cases
SB 462 amends Labor Code section 218.5 to constrict an employer's ability to recover attorneys' fees after prevailing in a wage-and-hour lawsuit. The former version of section 218.5 provided, on its face, that the "prevailing party" (either an employee or employer) in an action for the nonpayment of wages "shall be awarded" reasonable costs and attorneys' fees. As amended, the statute provides that "if the prevailing party in the court action is not an employee, attorney's fees and costs shall be awarded pursuant to this section only if the court finds that the employee brought the court action in bad faith." The amendment was the California legislature's response to the Supreme Court's ruling last year in Kirby v. Immoos Fire Protection, Inc., (2012) 53 Cal. 4th 1244, in which the Court's opinion left open the possibility that employers could recover attorneys' fees in certain types of wage-related actions.
New Leave Time Available to Emergency Rescue Personnel
AB 11 amends Labor Code section 230.4 to now require an employer with 50 or more employees to permit an employee who performs emergency duty as a volunteer firefighter, reserve peace officer, or as emergency rescue personnel to take temporary leaves of absence, not to exceed an aggregate of 14 days per calendar year, for the purpose of engaging in fire, law enforcement, or emergency rescue training. The prior legislation applied only to volunteer firefighters and did not cover "emergency rescue training." Employers with over 50 employees should amend their leave of absence policies to reflect these changes. The new law becomes effective on January 1, 2014.
California's Fair Employment and Housing Act ("FEHA") Is Amended; "Sexual Desire" is Not Required to Demonstrate Sexual Harassment Claim
SB 292 amends California's Fair Employment and Housing Act ("FEHA") to specify, for purposes of the definition of sexual harassment, that sexually harassing conduct need not be motivated by sexual desire. The intent of the new law is to overrule what the bill's author suggests is the outlier holding in Kelley v. Conco Companies (2011) 196 Cal. App. 4th 191, that a plaintiff in a same-sex harassment case must prove that the harasser harbored a sexual desire for the plaintiff. In light of this new legislation, employers should consider updating their sexual harassment policies and training materials. The new law becomes effective on January 1, 2014.
If you have any questions about the matters discussed in this issue of Compliance Matters, you may contact any member of the Firm. We are reachable at 818-508-3700 or www.brgslaw.com.
Richard S. Rosenberg
Founding Partner
In August, California Governor Jerry Brown signed into law several pieces of legislation that will affect California's anti-discrimination laws, rules regarding leaves of absence, and the ability of employers to recover attorneys' fees in wage-and-hour disputes.
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