California's New Laws Affect Work, Health, Public Safety

MAUREEN CAVANAUGH: Our top story on Midday Edition. When we ring in the New Year of 2015 later this week, a host of new laws go into effect in California. The DMV is already booked solid with appointments for the new AB 60 driver's license. And on college campuses, the 'Yes Means Yes' Law goes into effect. Joining me to discuss those and other new laws for 2015 is my guest, San Diego attorney and legal analyst, Dan Eaton. Welcome back, Dan. DAN EATON: Sure. Nice to see you, Maureen. MAUREEN CAVANAUGH: The new driver's license will start being issued on January 2nd; it's for people living in the state illegally. What are the reasons California is issuing this license? DAN EATON: Well, the thought is that if the undocumented immigrants cannot get licenses is that they're going to drive unlicensed and the problem with that is, of course, it means they haven't been properly trained and tested and it creates the possibility of fatal accidents. There was a study that the Legislature cited that attributed 1 in 5 fatal accidents to unlicensed drivers. So the thought was that by licensing undocumented immigrants will actually make our roadways safer. MAUREEN CAVANAUGH: And do people then, therefore, have to pass the same kinds of tests that you or I would have to pass the get the driver's license? DAN EATON: Absolutely. And that's very important to understand. This isn't the, you just show up and if you're over 18 you get a license. You do have to pass all of the same other requirements that people need to pass to get a license. It's just that the previous disability of being an undocumented immigrant that prevented you from getting a license is now going to be removed. MAUREEN CAVANAUGH: Now what will how will this new AB 60 driver's license and it's classified that because it's the result of an Assembly Bill DAN EATON: Right. MAUREEN CAVANAUGH 60. How will they be different from regular driver's licenses? DAN EATON: Well, for one thing, the mark is going to be different. It's it's it's going to have a D, a P on it. For example, instead of a "DL" or in my case, in my driver's license, I actually looked at it, "DD." It also will have an additional line on the back of the license. It says it is not to be used for federal purposes. We actually all have something on the back of our licenses, which came as a surprise to me, which says it's not an appropriate thing to use for employment purposes and so forth, but this will also say it is not useful for federal purposes. MAUREEN CAVANAUGH: How about for identity purposes? I know that, you know, I'm especially during the Christmas season, pulling out the driver's license all the time so that I can use a credit card or validate who I am, can it be used for those purposes? DAN EATON: Absolutely. It can be used for identity purposes. In fact, that's one of the things that undocumented immigrants will have to show to get this license that is to say that they are who they say they are. And with respect to identity, it's important to understand that while this law, allowing the licenses, was passed in 2013, another law was passed just this past year that says that if the license is used for identity purposes in employment, to show that the undocumented immigrant has proper driver's license that are required for the job, it cannot be used as a basis to discriminate against the particular person. So there are various protections that are actually going to come into place on January 2nd, as a practical matter, 2015 MAUREEN CAVANAUGH: Now, I read that that issuing these licenses is actually going to cost on the order of $140 million to the state. Are there any other impacts that the state is expecting from this new law? DAN EATON: Well, for one thing, there's going to be a backlog. Obviously, you referred to the administrative backlog right there when you talk about the cause. You have to understand that the DMV is allowed to charge an additional fee to those applying for these special licenses to compensate for the enormous expense that is going to go into making this special class of driver's licenses. MAUREEN CAVANAUGH: Do you know what how much that's going to be? DAN EATON: No, I don't, and I assume the DMV has said it, but I have not actually looked. But the wonderful thing is that the DMV actually has a wonderful website that is called AB 60. And if you type in if you do a Google search, it says AB 60 driver's licenses. It comes up with a whole host of very, very helpful information that I actually looked at to prepare for this segment. That will be very important for people, who are looking at these licenses, to review. And importantly, here, it can be translated into any one of a variety of languages automatically just by the touch of a button. MAUREEN CAVANAUGH: Let's move on to another law that goes into effect this year. It's in the wake of the renewed concern about sexual assaults on campus, it's SB 967. It's being commonly referred to as the 'Yes Means Yes' Law. It takes it goes into effect this year. It's about affirmative consent by both parties to engage in sexual activity. What does the new law require, Dan? DAN EATON: It requires actually an affirmative conscious and ongoing consent by both parties to sexual activity in order for it to be valid. It is not enough that there be silence. It is not even enough that the parties had previously engaged in a dating relationship. There has to be an, "Is this okay?" "Yes. Yes." And it has to be ongoing. In other words, it can be revoked at any point in the process of the sexual activity. This is rare. In fact, California is the first to enact such a law. Now, there was a question about, "Well, doesn't this end up being 'he said, she said' at the end of the day?" Well, in a sense, yes, except that some excuses that used to be allowed will no longer be allowed. For example, Jameis Winston, the Florida State quarterback, was asked point blank during his recent disciplinary hearing whether how he could tell that the woman consented, "Well, she moaned." Well, how will it work under this new law? There has to be affirmative yes. It is not enough for nonverbal communication to indicate consent. MAUREEN CAVANAUGH: So it would make clear that sex with an incapacitated person, if that person was drunk or asleep, that would be automatically considered sexual assault? DAN EATON: Well, yes. And that's another thing. For purposes realized of disciplinary proceedings. Understand that this applies to university policies. Any university that receives California funds for student financial aid is required to enact a policy that has these procedures in place for the purposes of their disciplinary proceedings. It won't affect, understand, the burden under criminal law which requires proof beyond a reasonable doubt and has a range of evidentiary protections, but in this case, if the state can show that if the accuser or the people being the proceeding can show that there was an affirmative consent by a preponderance of the evidence that that will be enough to establish culpability on the part of the accused. MAUREEN CAVANAUGH: Now, Dan, this law has been ridiculed in the media even before it goes into effect. I understand that it is only for on campus disciplinary actions, but do you see problems with its implementation? DAN EATON: Well, yeah, I mean, the big problem is a lot of people are saying, "Well, what exactly does that mean? Exactly how do you determine whether is this affirmative consent? When you're talking about ongoing, does that mean literally " I mean, not to get too graphic here, but throughout the course of every act in the part of sex, is this creating a very strange, almost legalistic sex regime that takes a lot of the spontaneity out of sexual activity? The answer to that question, in a sense, is yes pardon the pun but nonetheless, it does put in place some protections that are the result of an outcry over some serious incidents of sexual assault on our nation’s campuses, and a feeling we have to do something to bring these to an end. MAUREEN CAVANAUGH: Another part of this law that has not received as much publicity is that it requires colleges and universities in California to adopt clear guidelines in assisting victims of sexual assault. Has the lack of guidelines like that been a problem? DAN EATON: Of course. That's the argument that the Legislature obviously accepted. The fact is that under this new law, colleges will have to reach out, do outreach to victim crisis centers and legal protection and legal assistance at various providers. If feasible, to provide protection not just to the accuser by the way, but also to the accused, to ensure that there is some degree of assistance, that you are going to have to reach out to community sponsored groups that deal with victim management and so on in order to make sure that there are a range of resources to make sure these are properly handled from, again, both the perspective of the victim and the accused. MAUREEN CAVANAUGH: I'm speaking with our legal analyst, Dan Eaton, and we're talking about some of the new laws that go into effect in the State of California in the New Year, 2015. On a less con controversial note, a new state law affects youth football players, but, I guess, within that world, this is pretty controversial for a lot of people. Can you tell us about that? DAN EATON: It really is. This deals with what made the legislator address this issue is that there are too many concussions. We all know about the attention about concussions in the NFL, but the problem is that what you have is you have young people before their skulls are fully developed engaging in full contact football and practices and so forth where it might not really be warranted. So this was an attempt to cut that down and to place some serious limits on how much that can be. For example, it says that you can only have full-contact practices 90 minutes on any one day and no more than twice a week even during season and it bars full contact practice in the off season altogether. MAUREEN CAVANAUGH: So why was this new law needed? DAN EATON: Well, because of the feeling that there are concussions by these young people and that these concussions have long lasting effects on their brain development. There was a feeling that we have to protect them so that some of the things we are hearing about in the NFL doesn't befall a far younger cohort. Now that law, too, honestly, is getting some ridicule saying, well, you know, which part of football don't you understand? Maybe there's a question of if they're not practicing like this, maybe they are not learning the safe way that is to say, with your shoulder and not with your head and so on. But nonetheless, the hope is that this is going to cut down on the kinds of serious concussions and brain injuries that could really affect a young person for the rest of his, as a practical matter, life. MAUREEN CAVANAUGH: Right. And on another less well known aspect of this particular law is also rather important and that is the additional steps that schools are required to ensure that athletes are safe to return to play. The concussion guidelines. DAN EATON: Yeah. Again, this is going to be familiar to people who watch the NFL on a lesser basis. But, basically, if an athlete is suspected of having a concussion, yanked from the game and has to be evaluated by a licensed healthcare professional. And even after the licensed healthcare professional evaluates the person there cannot be a return to the game until there is a full evaluation and a period of time of at least seven days where they are gradually able to return to the playing field if a concussion is found to have occurred. MAUREEN CAVANAUGH: And this will be the this will be part of youth football now? DAN EATON: Yeah, middle school and high school; that's right. MAUREEN CAVANAUGH: Now, a couple of new laws don't go into effect until July of this year, but they are big changes in 2015. A new state law authored by San Diego Assembly member, Lorena Gonzalez, requires businesses to offer paid sick leave to employees. How many paid sick days per year will the employees get, Dan? DAN EATON: Well, it'll be it'll be three days or 24 hours, but it's important to understand, Maureen, a lot of people are saying, "Well, this doesn't go into effect until July," but that's not quite accurate. The fact is that it actually goes into effect on January 1st. The accrual of vacation time doesn't start until July 1st. What does that mean? It means that the employer posting requirements and the employer information requirements go into effect on January 1st right away. The accrual of the vacation time doesn't have to start until July 1st and that is where there is some confusion. So but starting July 1st, people will earn one hour for every 30 hours of work and it's employers of any size by the way. MAUREEN CAVANAUGH: And it's any type of employee; isn't that right? DAN EATON: It is any type of employee. In fact, it applies to any employees who work at least 30 days in the state of California, so MAUREEN CAVANAUGH: Per year. DAN EATON: Per year. That's right. So even if you normally work, say, in Seattle or somewhere else, if you work 30 days in the State of California, again, beginning January 1st, 2015 and you worked for the employer for at least 90 days, you are entitle to this new statewide benefit. MAUREEN CAVANAUGH: Why is this law significant, Dan? DAN EATON: Well, it's sig the reason it was enacted was because there was concern that people couldn't afford to stay home so they were coming in sick with tremendous consequences to productivity and also to making their co workers sick and this was a tremendous problem. And it's important, Maureen, to understand that this paid sick leave is not limited to the illness of the employee, himself or herself. The employee, himself or herself, can use this paid sick leave as well to care for a loved one, which is quite unusual actually. MAUREEN CAVANAUGH: So this goes into effect this year. Another one that's coming up that I would imagine is going to affect just about everybody who buys groceries in this state is the end of the age old supermarket question: Paper or plastic? The state has banned the use of most plastic grocery bags, and I do believe that that does go into effect in July. What will supermarkets offer instead? DAN EATON: Except, Maureen, here's breaking news. As of about an hour and ten minutes ago, in fact, the statewide coalition that according to The Sacramento Bee which just issued, about an hour ago, a capital alert, those who were gathering signatures to suspend the operations [check audio] this lot said they have gathered over 800,000 signatures, well over 200,000 more than they needed to gather to put this on the ballot in 2016. And if that does go into if they do have enough signatures, the effected law will be suspended until the voters have their say in 2016. Now, when you say back to the substance of your question MAUREEN CAVANAUGH: Sure. DAN EATON: What are they going to do instead? They can provide paper bags for 10 cents, but they have to charge for them. And they also can have people bring their own bags. I bring my old bags, personally, to the supermarket all the time and you see a growing use of that, but that's what's going to happen. People are obviously not going to walk out with armfuls of things that are not in bags. MAUREEN CAVANAUGH: Now, I want to ask you more questions about that petition drive if I may, but first can you remind us why the state is doing this in the first place? DAN EATON: Yeah. The reason the state enacted this law is because of concern that look, these plastic bags take a decade or more to break down in landfills and they also create danger to wildlife, polluting our waterways including the ocean itself. That is why Governor Brown signed this law in early fall. There was a real environmental concern about these plastic bags. MAUREEN CAVANAUGH: And there have been city ordinances all up and down, really, California. I know there are several in San Diego County. The City of San Diego County have been considering enacting this law. They wanted to wait to see what the State did and the State actually initiated a statewide ban. DAN EATON: That's exactly right. And understand that those city laws are going to remain in effect regardless of what the statewide ban has to do, but the fact is that these plastic bag manufactures said, "Look, let's let the voters decide on this," and they had a very narrow 90 day period to gather all these signatures. So it was really an impressive feat that they got those signatures. Now, it'll take until the spring for the Secretary of State to validate whether there are sufficient signatures to put this measure on the ballot, but assuming that there are sufficient signatures, this will not go into effect on July 1st, 2015. MAUREEN CAVANAUGH: And it will not be on the ballot on the 2015 ballot. It will be on the 2016 ballot. DAN EATON: I don't even know that there is a 2015 ballot to be honest with you. (Laughter) MAUREEN CAVANAUGH: That's true. DAN EATON: Clearly. There we are. Right. So there will be and the voters will have their say in 2016. And Maureen, you can expect that ballot that battle to be as pitched as any that we have ever seen. I don't think people are going to realize the intensity of interest on both sides, there is, about plastic bags. MAUREEN CAVANAUGH: We're so used to having votes around here every couple of months that I just assumed. (Laughter) DAN EATON: What the heck, let's have a vote. Right. MAUREEN CAVANAUGH: Now, there are several I mean, there are hundreds of laws that are going into effect. DAN EATON: There are. About a thousand, actually. MAUREEN CAVANAUGH: And one of them concerns people whose identities have been compromised because there's been a database breach at a company. What can Californians expect now? DAN EATON: Well, most Californians won't be exactly be effected by this specifically, but what it mandates is that even people who maintain this kind of personal information, meaning your social security number, various identity aspects. If you are going to be required, if there is a data breach, to notify the person whose information is beached. And they're also going to be required to take reasonable security measures which are fairly expensive. And also, here's the key, where there is a breach, it also requires the source of the beach as it were to provide 12 months, at no cost, to the person whose data was breached, 12 months of identity theft protection. That's the important thing that this adds. So it expands the number of providers, service providers, who have to protect people's identity because this is a tremendous problem. Understand, there was one study cited by the Legislature that estimated up to $6 billion in credit card fraud, an 87% jump from 2010, and credit card fraud, of course, is mostly the result of identity theft. So this is a very, very serious problem. MAUREEN CAVANAUGH: The last question I'm going to leave to you, Dan, is there any particular law that you think we should be aware of or keep our eyes on? DAN EATON: Well, here's one, as an employment lawyer, I sort of focused on, and that is the unpaid intern thing which is very interesting. Previously, if you are an unpaid intern or a volunteer, you didn't have the protection of the State's very strong sexual harassment law. Well, now you do. Effective January 1st, the full range of protections to sexual harassment law which applies to any employer of one employee or more, by the way, will now apply to unpaid interns, but there are so many laws that are going into effect that, obviously, we don't have enough time, but dealing from all kinds of issues and that's what makes my job so interesting because the law keeps rolling. (Laughter) MAUREEN CAVANAUGH: I have been speaking with legal analyst, Dan Eaton, with the San Diego law firm of Seltzer, Caplan, McMahon, and Vitek. Thank you, Dan. Happy New Year. DAN EATON: Happy New Year to you, too, Maureen. MAUREEN CAVANAUGH: Coming up, naturalists are celebrating what could be the return of the gray wolf to California. It is 12:25, and you're listening to KPBS Midday Edition.