Now that the California legislative session for 2019 has come to a close, it’s time to review the new laws that impact the workplace, update policies accordingly, and train relevant managers and staff. Below we highlight four new laws that will impact all workplaces in California:
1. AB 8 – Extends Time To File A Complaint With the Department of Fair Employment and Housing (DFEH) from One to Three Years
The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation in employment based on protected classifications such as race, national origin, sex, sexual orientation, religion, age over 40, disability, and medical condition, among others. Under the old law, an employee who believed he or she had been aggrieved by an unlawful practice under FEHA had one year from the date of such unlawful practice to file a complaint with the DFEH. Assembly Bill 9 (AB-9), signed by Governor Newsom this month, extends the time period to file a complaint from one year to three years for complaints alleging employment discrimination. This new law specifies that it does not revive lapsed claims, but does not specify what happens to existing claims for which the previous one year statute of limitations has not yet lapsed. We advise seeking legal counsel to assess the impact of this law on any pending DFEH complaints.
2. AB 749 – A “No-Rehire or Future Employment” Clause is Now Prohibited in Settlement Agreements Resolving Employment DisputesThis new law prohibits an employer who settles an employment dispute from including in the settlement agreement a provision that prohibits, prevents, or otherwise restricts the current/former employee from working for the employer. This does not apply if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault, and clarifies that an employer does not have to continue to employ or rehire a person if a legitimate nondiscriminatory or non-retaliatory reason exists for terminating or refusing to rehire. This law applies to agreements entered into on or after January 1, 2020. We advise seeking legal counsel to review any settlement/severance agreements that may be impacted by this new law.
3. AB 51 – Ban on Mandatory Arbitration of Employment Claims This new law set to take effect on January 1, 2020, adds a new Section 432.6 to the Labor Code prohibiting employers from requiring an applicant or employee as a condition of employment, continued employment, or the receipt of any employment-related benefit to agree to mandatory arbitration of alleged violations of FEHA or the entire Labor Code. The new law also prohibits employers from implementing arbitration agreements using a voluntary opt-out procedure. There are significant questions about whether this new statute is invalid based on conflict with the Federal Arbitration Act (FAA). Legal challenges are likely, and the law may be scaled back or found entirely unenforceable. In the meantime, employers should review any arbitration agreements, including arbitration clauses within other employment agreements, with their legal counsel and decide how to proceed.
4. SB 142 – New Requirements for Employee Lactation Accommodations This new law requires employers provide a lactation room or location for expressing breastmilk that has specific requirements, including a surface to place a breast pump and personal items, a place to sit, and access to a sink and refrigerator suitable for storing milk in close proximity to the employee’s workspace. This law also requires that employers develop and implement a policy regarding lactation accommodation that includes a statement about the employee’s right to request lactation accommodation, how to make that request, and a statement about the employee’s right to file a complaint with the Labor Commissioner for violations. Further, the law makes a denial of reasonable break time or adequate space to express milk the same as a failure to provide a rest period in accordance with state law (and with the corresponding penalties). We have developed several California-compliant lactation accommodation policies and training programs, and are happy to talk with your team on developing one for your company.
This is bill-signing season in California, and in the last few weeks, the Legislature has approved two bills of note.
Sexual Harassment Training Deadline Extended
On January 1, 2019, a new law (SB 1343) went into effect that significantly expanded California's mandatory sexual harassment prevention training requirements. Under SB 1343, all California employers with 5 or more employees must provide two hours of sexual harassment training to all supervisory employees, and one hour of training to nonsupervisory employees. The training must take place within 6 months of hire or promotion to a supervisory position, and every two years thereafter.
SB 1343 required employers to provide this training by January 1, 2020, unless the employer already provided this training after January 1, 2019. This meant that for employers who provided training in 2018, they would have to again provide training in 2019 instead of waiting the two years.
Based on employers' concerns, Governor Newsom signed SB 778 on August 30, 2019 - an emergency clean-up bill that took immediate effect. SB 778 extends the sexual harassment prevention training deadline under SB 1343 from January 1, 2020 to January 1, 2021. Now, employers who trained their employees in 2018 can maintain their two-year cycle, and will not be required to provide training 2 years in a row. SB 778 further clarifies that employers who train their employees in 2019 are not required to provide refresher training until two years from the time to employee was trained.
The law also requires training for seasonal/temporary employees and migrant or seasonal agricultural workers.
What Does This Mean for Your Company?
The content of the training is also specified by law and employers should ensure their training meets these requirements.
Please reach out if you have questions about your training schedule or the content of your training. We can provide trainings at your workplace, or help you select a compliant program and set a schedule.
California Wades Further Into Worker Classification Debate
On September 18th, Governor Gavin Newsom signed Assembly Bill 5, which is aimed at requiring companies in the gig economy, including on-demand and ride-hailing companies such as Uber, Lyft, and DoorDash, to treat workers as employees rather than independent contractors. The legislation codifies a recent California Supreme Court decision, Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018).
Summer is here, a time when employers scramble to cover vacation schedules and employees burn through their PTO.
It’s also Pride Month. I thought I’d take this opportunity to discuss some important employment laws designed to ensure equal opportunity at work for LGBT people.
Nationwide, there are still 26 states that do not have laws banning discrimination against LGBT workers. And there are important cases pending before the Supreme Court that will determine whether sexual orientation discrimination is prohibited by federal law (Title VII).
But in California, it is unambiguous that sexual orientation and gender identity discrimination are unlawful.
In recent years, the California Department of Fair Employment and Housing has issued key regulations on protections for gender identity and expression. (Cal. Code Regs., tit. 2, §§ 11030 – 11031.)
Read more for key takeaways:
I am passionate about providing entrepreneurs and individuals effective and high-quality representation in all aspects of California labor and employment law.
The above updates may be considered an advertisement or solicitation. The content enclosed is not intended to provide legal advice or to create an attorney-client relationship. Copyright 2019
Attorney Advertising. This website is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.onship.