The legislative calendar for the year has effectively ended and the new laws for 2019 are in. We have outlined below the new laws most likely to affect our clients.
There was an increase in narrow, industry-specific employment laws this year which are not covered below. However, we provide a couple of examples of these industry-specific laws at the end of this newsletter and encourage you to check for anything specific to your industry. The Governor vetoed several employment-related bills. Although fairly rare, there is a chance that the Legislature will override the veto and gives us one or more additional new laws.
For a full copy of the new laws covered here, simply follow the links. Let us know if you have specific questions about the new laws or how they affect your organization.
Sexual Harassment Law Expansion
- Existing law (California Fair Employment and Housing Act “FEHA”) prohibits harassment on the basis of sex or other protected categories. Both individuals and employers are prohibited from engaging in harassment and employers have an affirmative duty to take all reasonable steps to prevent harassment in the workplace.
- The bill expands the scope of prohibited harassment law in several significant ways.
- The bill provides specific instruction to the courts on the Legislature’s intent when the courts apply the law. These instructions will certainly make defending harassment lawsuits more difficult because they expand the definition of what creates a hostile environment and narrow the potential defenses.
- This bill limits the court’s discretion in awarding attorneys’ fees and litigation costs to a prevailing defendant in FEHA cases. It prohibits the courts from awarding attorneys’ fees and litigation costs to a prevailing defendant unless the court finds that the plaintiff’s action was frivolous, unreasonable or groundless when filed or that the plaintiff continued to litigate the case after it clearly became so.
- The bill provides that employers may now be held liable for all forms of prohibited harassment carried out by nonemployees. Previously, the law only specified liability for sexual harassment by nonemployees.
- The bill authorizes employers to provide “bystander intervention training” that includes “practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors.”
- The bill prohibits employers from obtaining an employee’s release of claims or rights under FEHA or a non-disparagement or confidentiality agreement that purports to prevent an employee from disclosing information about unlawful acts unless certain conditions are met. A release agreement is permissible as part of a “negotiated settlement.” The term is specifically defined by the bill and includes the requirement that the employee be given notice and an opportunity to retain an attorney.
Sexual Harassment Training Expansion
- Existing law requires employers with 50 or more employees to conduct classroom or other effective, interactive training on the topic of sexual harassment and abusive conduct. The training is required for all supervisors and must be conducted within six months of the time an employee becomes a supervisor and once every two years thereafter. The law contains additional requirements related to the training content, training methods and the qualification of trainers.
- The bill expands the existing requirement for supervisor sexual harassment training by making it applicable to any employer who employs five or more employees, including temporary or seasonal employees.
- The bill also expands the training law to require at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter.
- The training for seasonal and temporary employees, or any employee that is hired to work for less than six months, must be conducted within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.
- The bill require the Department of Fair Employment and Housing to develop or obtain appropriate online training courses and to post the courses on the Department’s website.
- The bill also clarifies that the required training can be completed in multiple, shorter segments.
Privilege Protection for Complaints of Sexual Harassment
- Existing law makes communications privileged and therefore protected from civil defamation and libel actions where the communication concerns the job performance or qualifications of an applicant for employment and the communication is made without malice by a current or former employer to a prospective employer. Existing law also authorizes an employer to answer whether or not the employer would rehire an employee.
- This bill creates a new privilege that applies when an employee makes a complaint of sexual harassment to an employer or other interested person and the complaint is made without malice and based upon credible evidence.
- The bill specifies that an employer may answer, without malice, whether or not the employer’s decision not to rehire a former employee was based upon a determination that the former employee engaged in sexual harassment.
- This bill makes any contract or settlement agreement void and unenforceable if the agreement waives a person’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment when the person has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the Legislature.
- This bill prohibits a provision in a settlement agreement that prevents the disclosure of factual information relating to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. The bill creates an exception and permits the identity of the claimant and all facts that could lead to the discovery of his or her identity to remain secret if that provision is included in the agreement at the request of the claimant.
Salary History Information
- Existing law generally prohibits employers from relying on the salary history information of an applicant as a factor in determining whether to make an offer or what salary to offer, except in specified circumstances. The law also requires employers to provide the pay scale for a position upon an applicant’s reasonable request.
- This bill provides clarification by defining “pay scale,” “reasonable request” and “applicant” for purposes of salary history law. Pay scale means a salary or hourly wage range. Reasonable request means a request made after an applicant has completed an initial interview with the employer. Applicant means an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity. The bill also specifies that an employer is not prohibited from asking an applicant about his or her salary expectation for a position.
Criminal History Information
- Existing law prohibits employers from asking applicants about or obtaining information about an applicant’s criminal history related to convictions that were judicially dismissed or ordered sealed. There are exceptions to the restriction where the employer is required by state or federal law to obtain the information or is prohibited from employing a person with such convictions.
- This bill narrows the exceptions. The bill provides that where an employer is required by state or federal law to obtain the information or is otherwise restricted from employing a person with a specific type of conviction, the criminal history obtained by the employer must be limited to the “particular conviction” specified by the state or federal law. In other words, employers must only obtain and consider the very specific types of convictions that state or federal law requires them to consider.
- Existing law requires every employer to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child and requires an employer to make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area for the employee to express milk in private.
- This bill would change the “other than a toilet stall” requirement to “other than a bathroom.” In other words, a bathroom will no longer qualify as an appropriate space unless the employer can demonstrate that the bathroom is the only space available that would not create an undue hardship on the employer.
Family Leave Benefits Program Expanded
- Existing law, under the state disability insurance program, provides employees with wage replacement benefits when employees need to take time off to care for seriously ill family members or to bond with a minor child within one year of the child’s birth or placement.
- This bill expands the scope of the family temporary disability insurance program to include an employee’s time off to participate in a qualifying exigency related to active military duty service of the employee’s spouse, domestic partner, child or parent.
Additional Protections for Military Reservists
- Existing law provides members of the military and military reserves with numerous protections from employment discrimination.
- This bill expands the protections under state law for employees who are member of the federal reserve components of the Armed Forces of the United States.
Hotels and Motels
- Requires “employers” (defined as hotels and motels) to provide employees with at least 20 minutes of training and education on human trafficking awareness.
- Requires talent agencies to provide educational materials on sexual harassment prevention, retaliation, and reporting resources and nutrition and eating disorders to its artists in a language the artists understand and be able to prove compliance at license renewal.
Rest Breaks – Petroleum Facilities
- Exempts certain employees who hold a safety-sensitive position at a petroleum facility from the rest and recovery breaks otherwise required under the law. Provides that the exemption runs out on January 1, 2021.
Construction Law Wage/Hour Liability
- Clarifies existing law related to a “direct” contractor’s liability for violation of wage payment laws by subcontractors. Requires contractors to include specific information in a contract with a subcontractor if the contractor intends to withhold payments to the subcontractor when the subcontractor fails to provide the contractor with documents and information related to wage and hour compliance.
Construction Exemption from PAGA
- Provides that until January 1, 2025 the Private Attorney General Act (“PAGA”) will not apply to any employee in the construction industry who performs work under a valid collective bargaining agreement that meets certain conditions.
Feed Drivers Meal Period Exemption
- Authorizes certain drivers of a commercial feed manufacturer to commence a meal period after 6 hours of work, if the regular rate of pay of the driver is no less than one and one-half times the state minimum wage and the driver receives overtime compensation in accordance with specific provisions of existing law.