This year has been off to a frenetic start. CELA’s Legislative Committee has been continuing to shape and craft policy proposals for this year while monitoring the torrent of action coming from Washington, D.C. At the state level, we are focusing on preserving baseline worker protections in California, expanding parental leave, combatting hate and bias in the workplace, and attacking forced arbitration. We are also working closely with immigrant rights advocates to help protect California’s immigrant workforce and establish a rapid response support system for immigrants threatened with deportation or detention. If any CELA attorneys would like to attend a free training to help with removal defense, please email me at mariko@cela.org.
CELA’s Legislative Committee welcomes the participation and input from all CELA members. If you have a legislative proposal that you would like us to consider or you would like to get involved in our legislative and political activities, please email mariko@cela.org.
At the federal level, we are joining coalition partners, including the National Employment Lawyers Association (NELA) to oppose certain cabinet nominees, like Senator Jeff Sessions for Attorney General and Andrew Puzder for Secretary of Labor. Senator Jeff Sessions has a record of racial insensitivity, bias against immigrants, disregard for the rule of law, and hostility to the protection of civil rights, making him unfit to serve as the Attorney General of the United States. Andrew Puzder has been a longtime opponent of the minimum wage and the Obama Administration’s overtime pay reforms while his companies, Carl’s Jr. and Hardee’s, have faced and settled repeated lawsuits from workers, including claims of wage theft, discrimination, failure to provide breaks and dangerous workplace environments.
We are also monitoring newly introduced federal legislation that would threaten our civil justice system. On February 2, the House Committee on the Judiciary is scheduled to mark up H.R. 720: The Lawsuit Abuse Reduction Act (LARA), H.R. 725: The Innocent Party Protection Act, and H.R. 732: Stop Settlement Slush Funds Act (see below for more information). These bills would make it more difficult for Americans to enforce their legal rights, and would place unreasonable burdens on the federal judiciary. Efforts are also underway to use the Congressional Review Act (CRA) to repeal the regulations implementing the Fair Pay and Safe Workplaces Executive Order. The Fair Pay regulations were designed to improve federal contractor compliance with labor laws by, among other things, creating paycheck transparency protections so that workers can verify the accuracy of what they are paid, and limiting the use of pre-dispute arbitration clauses in employment agreements on covered Federal contracts.
At the state level, Governor Jerry Brown unveiled a $179 billion state spending plan, which followed his usual budgetary theme
of caution and restraint. For California’s courts, the proposal includes additional money for court employees’ health and retirement, $55 million to backfill a continuing decline in fines and penalties, funds for new case management systems in nine small counties, and $5 million for previously approved increases to judges’ salaries and benefits. This spending plan will not help the courts recover from the devastating cuts that were made during the recession.
“Given the uncertainties in the state’s budget in the coming fiscal year, Gov. Brown’s proposed budget for the judicial branch is prudent,” Chief Justice Tani Cantil-Sakauye said in a prepared statement. “We will continue to press for additional trial court revenue and any other necessary changes to address the vital needs of those seeking justice in the court system.”
The budget did include a $4.6 million Labor Enforcement and Compliance Fund, increasing to $11.4 million by 2020‐21, to implement a strategic enforcement effort to combat labor law violations. According to the budget proposal, “These resources will enable the Department to more effectively combat wage theft and other labor law violations in those industries with the greatest needs for rigorous enforcement, such as the janitorial, garment manufacturing, construction, agricultural, food processing, and restaurant industries.”
Federal Legislation
H.R. 720: The Lawsuit Abuse Reduction Act (LARA).
LARA would make major, substantive changes to Rule 11 of the Federal Rules of Civil Procedure. Rule 11 provides judges with authority to sanction attorneys for filing frivolous claims (and defenses). LARA would reinstate a rule to make Rule 11 sanctions mandatory, even though the rule was previously rescinded because of many problems and nearly universal criticism. Among those problems were: the rule had a chilling effect on the filing of meritorious civil rights, employment, environmental, and consumer cases; the rule was overused in civil rights cases as sanctions were sought and imposed against civil rights plaintiffs more than against any other litigants in civil court; and the rule burdened the already strained federal court system with satellite litigation over compliance with the rule.
H.R. 725: The Innocent Party Protection Act.
This bill would upend long-established law in the area of federal court jurisdiction, specifically addressing the supposed overuse of “fraudulent joinder” to defeat complete diversity jurisdiction in a case. For plaintiffs, who are supposed to be able to choose their forums, this legislation would result in additional time, expense, and inconvenience for the plaintiff and witnesses. Moreover, there is no evidence that federal courts are not already properly handling allegations of so-called “fraudulent joinder” after removal under current laws.
H.R. 732: Stop Settlement Slush Funds Act.
Under existing laws, settlement terms that result from federal enforcement actions can sometimes include payments to third parties to advance programs that assist with recovery, benefits, and relief for communities harmed by lawbreakers, to the extent such payments further the objectives of the enforcement action. This bill would cut off any payments to third parties other than individualized restitution and other forms of direct payment for “actual harm.” That restriction would handcuff federal enforcement officials by limiting their ability to negotiate appropriate relief for real harms caused to the public by illegal conduct that is the subject of federal enforcement actions.
State Legislation
AB 5 (Gonzalez D) Employers: Opportunity to Work Act.
Summary: Would create the Opportunity to Work Act. The bill would require an employer with 10 or more employees to offer additional hours of work to an existing nonexempt employee before hiring an additional employee or subcontractor, except as specified, would require an employer to post a notice of employee rights, as specified, and would require the employer to maintain certain documentation. The bill would authorize an employee to file a complaint for violation of these provisions with the division and to, in the alternative, bring a civil action for remedies under the act.
AB 39 (Bocanegra D) Hate Crimes.
Summary: Would declare the intent of the Legislature to enact legislation to establish a “Hate Crime Registry” for purposes of creating a repository of information on hate crimes committed in California.
AB 46 (Cooper D) Employers: Wage Discrimination.
Summary: This bill would define “employer” for purposes of the Fair Pay Act to include public and private employers.
SB 31 (Lara D) State agencies: disclosure of religious affiliation information.
Summary: Existing law prohibits a state agency from including a question regarding an applicant‘s race, sex, marital status, or religion in any application form for employment. This bill would prohibit a state agency from providing or disclosing to the federal government information regarding a person’s religious affiliation when the information is sought for compiling a database of individuals based solely on religious affiliation.
SB 33 (Dodd D) Forced arbitration: fraud, identity theft, and wrongful use of personal identifying information.
Summary: Would prohibit a person from requiring a waiver of a legal right that arises as a result of fraud, identity theft, and any other act related to the wrongful use of personal identifying information as a condition of entering into a contract for the provision of goods or services. The bill would require any waiver of these rights to be knowing and voluntary, express and in writing, and not a condition of entering into the contract or a condition of providing or receiving goods or services.
SB 62 (Jackson D) Family leave.
Summary: Would make various changes to the definitions of the Moore-Brown-Roberti Family Rights Act by expanding the persons for whom and purposes for which leave is required to be provided under the act. The bill would redefine the term “child” to include a biological, adopted, or foster son or daughter, a stepchild, a legal ward, a son or daughter of a domestic partner, or a person to whom the employee stands in loco parentis, and would remove the restriction on age or dependent status. The bill would expand the definition of leave with regard to caring for persons with a serious health condition to also include leave to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition.
SB 63 (Jackson D) Parental leave.
Summary: Would prohibit an employer with 20-49 employees from refusing to allow an employee with more than 12 months of service with the employer, and who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.
For a list of bills that were recently signed into law and bills we are tracking in the new legislative session, please visit www.cela.org/legislation.
Lobby Day
On March 14th CELA members will take to the halls of the state capitol, meeting with members of the legislature to discuss CELA’s top priorities, including family leave, gender pay equity, wage theft, and forced arbitration! This will be an exciting opportunity for CELA members to meet and network with legislators and their staffs.
New to CELA, a political novice, or both? No problem! We will have a comprehensive pre-lobby day webinar to get you up to speed on the legislative process and the workers’ rights legislation we will be discussing in our meetings.
Full Day Lobby Day Schedule
(or meet us at lunch for a half-day)
7:30-8:30 Registration and Breakfast at the Holiday Inn Sacramento
8:40-9:30 Lobby Day Orientation Program
10:00-12:00 Lobbying Meetings with Legislators and Staff
12:00-2:00 Lunch at the Capitol
2:00-4:30 Lobbying Meetings with Legislators and Staff
4:30-6:30 Cocktail Reception with Friends and Allies at Mayahuel
We have reserved a limited number of guest rooms at the Holiday Inn Sacramento Downtown – Arena for $139/night. The deadline to make reservations is Tuesday, February 14.
For more information and to register for lobby day, please click here.
If you or your firm is interested in being a Lobby Day sponsor or if you have any questions about Lobby Day, please contact Mariko at mariko@cela.org or (916) 340-5084.
