California Governor Jerry Brown recently signed a slew of employment-related bills into law, many of which will take effect on January 1, 2019. These laws will have an immediate impact on the workplace and will require employers in the Golden State to revamp existing practices and procedures.
What is readily apparent is that the #MeToo movement provided the impetus for much of the new legislation. Many of the new laws are aimed at curtailing acts of harassment and discrimination in the workplace. Of significance, employers will no longer be able to enter into confidentiality agreements related to claims of sexual assault, sexual harassment, gender discrimination, and related retaliation and “failure to prevent” claims. However, as detailed in the following, the labor and employment laws set to go into effect in 2019 run the gamut and will affect employers in all industries, including but not limited to those in education, entertainment, construction, and government.
Reacting to the #MeToo Movement with Anti-Harassment Laws
Laws to encourage reporting and disclosure of claims related to sexual harassment:
- Protection for Employers Against Defamation Suits – AB 2770 provides employers with protection from potential defamation suits resulting from communications with prospective employers regarding sexual harassment complaints against former employees. Subject to limited exceptions, a qualified privilege now exists with respect to an employer’s communications with a prospective employer regarding whether the employer would re-hire an employee alleged to have engaged in sexual harassment, so long as those communications are made without malice.
- No More Confidentiality Clauses – SB 820 prohibits confidentiality clauses in settlement agreements preventing disclosure of information relating to claims of sexual harassment, sexual assault, sex discrimination, and related retaliation and “failure to prevent” claims filed in a court of law or with an administrative agency. However, the law does not prevent a claimant from limiting the disclosure of (1) his or her identity, or (2) facts that could lead to the discovery of his or her identity. Additionally, courts will no longer be able to restrict the disclosure of such facts in relevant civil proceedings.
- No Waiving the Right to Testify – AB 3109 makes it unlawful for any settlement or contract term entered into after January 1, 2019 to require a party to waive the right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. The law applies where a party’s testimony is required or requested pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.
- Longer Statute of Limitations for Sexual Assault Cases – AB 1619 extends the time a plaintiff has to file suit for sexual assault from three to ten years. The statute of limitations is further extended if the alleged conduct occurred on or after the victim’s eighteenth birthday.
Laws that will increase California employers’ potential liability for harassment-related lawsuits:
- Redefining Sexual Harassment – SB 1300, the strongest, and largest, sexual harassment bill passed this year will amend California’s Fair Employment and Housing Act (FEHA) in a number of ways, including (1) to expand employers’ potential liability by adopting or rejecting specific judicial decisions regarding sexual harassment; (2) to expand an employer’s potential liability under FEHA for acts of nonemployees to all harassment (removing the “sexual” limitation); (3) to prohibit an employer from requiring an employee to sign a release, as a condition of employment, raise, or bonus (but not as part of a bona fide dispute), of (a) FEHA claims or rights, or (b) a document prohibiting disclosure of information about unlawful acts in the workplace; (4) to prohibit a prevailing defendant from being awarded attorneys fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so; and (5) to authorize (but not require) an employer to provide bystander intervention training to its employees.
- More Potential Defendants for Harassment Suits – SB 224 includes additional examples of potential defendants who may be found liable for harassment under California Civil Code section 51.9. A defendant may be liable where he or she “holds himself out as being able to help the plaintiff establish a business, services, or professional relationship with the defendant or a third party.” The law, however, explicitly includes investors, elected officials, lobbyists, directors, and producers as potential defendants in a harassment suit. The Department of Fair Employment and Housing (DFEH) is now authorized to investigate such claims.
Clarifying Hiring Practices
- Equal Pay Changes – AB 2282 clarifies the ban on salary history inquiries and the requirement to provide pay scales to applicants. The law will allow employers to inquire into an applicant’s salary expectations for the prospective position. In addition, external applicants will be entitled to a pay scale upon request, but only after completing an initial interview.
- Criminal History Inquiries – SB 1412 amends in pertinent part Labor Code section 432.7, which limits an employer’s ability to conduct criminal history inquiries. Current law makes an exception for employers who are required by law to inquire into an applicant’s or an employee’s criminal history. The new law narrows this exception to apply only where state or federal law require an employer to inquire into a “particular conviction” or where an employer cannot by law hire someone with a “particular conviction.”
Changing Employer Obligations in the Workplace
- Gender Composition on Boards – SB 826 mandates that public companies based in the state have at least one female member (people who self-identify as women, regardless of their designated sex at birth) on their boards of directors by the end of 2019. By the end of 2021, corporations with five or more directors will be required to include at least two female members. Corporations failing to comply with these requirements will face penalties ($100,000 fine for the first violation and a $300,000 fine for further violations).
- Expansion of Anti-Harassment Training Requirements – SB 1343 extends California’s requirement that employers with 50 or more employees provide supervisory personnel with anti-harassment training to employers with five or more employees, including seasonal and temporary employees. Further, the law now requires such employers to ensure that all non-supervisory employees complete at least one hour of sexual harassment training. The law also changes obligations for employers of seasonal/temporary and migrant/agricultural workers, discussed in further detail in the following.
Altering Employee Compensation and Benefits Practices
- Payroll Records Requests – SB 1252 clarifies existing laws regarding an employee’s right to inspect or copy their own payroll records and requires that an employer must provide the copies of the records in addition to inspecting them.
- Lactation Accommodations – Pursuant to AB 1976, employers may not designate a bathroom as a designated lactation room. The designated location must be private and in close proximity to the employee’s work area. Temporary lactation rooms are permitted as long as the following conditions are met: (1) the employer is unable to provide a permanent lactation location; (2) the temporary location is private and free from intrusion while an employee expresses milk; and (3) the temporary location is used only for lactation purposes while an employee expresses milk. However, the employer may be excused from the new law if it imposes an undue hardship and so long as reasonable efforts are made to provide a room that is not a toilet stall.
- Paid Family Leave Extended for Family Members of Armed Forces Members – Effective on and after January 1, 2021, SB 1123 extends leave benefits to any employee who takes time off to attend to situations related to the covered active duty status of the employee’s spouse, registered domestic partner, child, or parent (but not a sibling) who is a member of the U.S. Armed Forces (as opposed to only the member of the U.S. Armed Forces himself or herself).
- Work Permits Issued by Schools – A minor must obtain a work permit by his or her public or charter school before he or she may start working for pay and may do so based on proffered requirements and conditions, such as grades or attendance. SB 1428 prohibits a public or charter school from denying a work permit for a minor to work on the basis of the student’s grades or attendance in the limited circumstance when the minor would work for any government-administered employment and training program that would occur during the student’s summer vacation.
- Radio or Television Broadcasting Exhibition – Existing law requires written consent of the Labor Commissioner for a minor under 16 years of age to take part in certain types of employment in the entertainment industry. AB 2388 makes an exemption to the written consent requirement for minors who appear in a radio or television broadcasting or “digital” exhibitions if (1) the minor does not receive compensation, (2) the exhibition is limited to a single appearance lasting no more than one hour, and (3) no admission fee is charged.
Addressing Issues in Public Sector Employment
- Parental Leave for School and Community College Employees – AB 2012 provides that an individual employed in a position requiring certification qualifications, a person employed in academia, or a classified employee will receive no less than 50% of his or her regular salary for the 12-workweek period of parental leave.
- Dismissal or Suspension – In a disciplinary hearing for an employee’s dismissal or suspension, SB 2128 allows evidence of specified allegations, including but not limited to allegations relating to behavior or communication of a sexual nature with a pupil, that occurred more than four years in the past.
- Peace Officers and Personnel Files – AB 2327 provides that peace officers seeking new employment elsewhere must give written permission for the hiring law enforcement agency to view his or her general personnel file and any separate disciplinary file from the existing law enforcement agency.
- Eligibility Decisions for County Employees – AB 3224 requires certain eligibility decisions for specific public benefit programs (including CalWORKS, Medi-Cal, and CalFresh) to be made only by a county merit or civil service employee.
- Bargaining Representatives – SB 1085 mandates that public employers grant employee representatives protected, reasonable leaves of absences to enable employees to serve as stewards or officers of the employee representative or any statewide or national employee organization.
Implementing Industry-Specific Changes
- PAGA Relief for Construction Employers – AB 1654 provides that unionized workers in the construction industry are not covered by PAGA, and therefore cannot bring PAGA claims, provided that the work is performed pursuant to a valid collective bargaining agreement in effect any time before January 1, 2025 and which meets several of the bill’s requirements.
- Contractor Liability for Unpaid Wages – AB 1565 clarifies law making certain direct contractors performing work in the state liable for unpaid wages by subcontractors. Generally, under California law, a direct contractor may be held liable for a subcontractor’s failure to pay wages to its workers. Under existing law, the direct contractor is entitled to certain information and documents relating to the subcontractor’s payment of wages “upon request,” otherwise direct contractors may withhold any “disputed” sums relating to failure to pay wages from the subcontractor. The new law, effective January 1, 2019, states that contracts must provide all items of information that will be requested of the subcontractor, such as payroll records and other information related to hours worked, before such withholding can take place.
- Contractor Liability for Failure to Provide Payroll Records – AB 3231 authorizes a joint labor-management committee to bring an action against an employer who fails to provide payroll records under the same provision for bringing an action against an employer for failure to pay prevailing wages in connection to a public work.
- Graffiti Abatement Work – SB 913 exempts from the requirement to pay a prevailing wage graffiti abatement work performed pursuant to a contract between the City of Los Angeles and a nonprofit community-based organization if the work is performed by specified individuals.
- Building and Construction Apprenticeship Programs – AB 2358 extends protections under the Fair Employment Housing Act and prohibits discrimination in building and construction trades apprenticeship programs with regard to acceptance into or participation in the program.
- Temporary and Agricultural Employees – Beginning January 1, 2020, SB 1343 requires that for seasonal and temporary employees, employers shall provide the required anti-harassment training within 30 calendar days after the date of hire, or within 100 hours worked — whichever occurs first. The law requires that temporary services agencies provide training to temporary employees employed by the agency. For migrant and seasonal agricultural workers, sexual harassment prevention training shall be required to meet the standards set forth in Labor Code section 1684, subdivision (a)(8).
- Talent Agencies – AB 2338 requires talent agencies to provide materials on sexual harassment training, retaliation, nutrition, and eating disorders to adult artists within 90 days of agreeing to representation, and requires minors and their parent or legal guardian to receive training in sexual harassment prevention. Failure to adhere to this new law subjects the talent agency to a civil penalty of $100 per violation by the Labor Commissioner.
- Rest Breaks in the Petroleum Industry – AB 2605 provides that unionized workers in safety-sensitive positions in the petroleum industry may be required to remain on call during rest breaks. However, for any rest or recovery period during which an employee was interrupted or forced to miss, the employer is required to provide another rest period to occur “reasonably promptly” thereafter, and if the rest period cannot be provided, to pay an additional hour of compensation at the employee’s regular rate of pay.
- Liability for Port Drayage Customers – SB 1402 provides that customers who use or engage the services of a port drayage motor carrier are jointly and severally liable with the motor carrier for nonpayment of wages, expenses, damages, and penalties, subject to the requirements of the bill.
- Human Trafficking Awareness Training – AB 2034 requires employers who operate an intercity passenger rail, light rail, or bus station to provide at least 20 minutes of training on human trafficking awareness to new and existing employees by January 1, 2021. Likewise, by January 1, 2020, SB 970 requires hotel and motel employers to provide at least 20 minutes of training on human trafficking awareness to employees within six months of hire and once every two years thereafter.
Employers should review their policies and procedures to determine compliance with these summarized laws in anticipation of the January 1, 2019 effective date for most of the aforementioned laws. Our team can assist you in reviewing existing practices and creating policies and training that are compliant with the new laws.
To learn more about how the new labor and employment laws might affect your business, please contact: