Posted: October 4, 2018 |
Governor Brown recently signed several employment bills into law, with most of them taking effect January 1, 2019 (unless otherwise indicated).
Sexual Harassment or Assault-Related Claims and Training
Expansion of Relationships Subject to Claim of Sexual Harassment (SB 224) This new law expands the type of relationships defined under Civil Code §51.9 that can be subject to a claim of sexual harassment. Protections are expanded to relationships where the defendant holds him/herself out to be able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party, including investors, elected officials, lobbyists, directors, and producers. Before the passage of SB 224, a plaintiff seeking damages for sexual harassment under Civil Code §51.9 was required to prove s/he was unable to easily terminate the relationship. The bill has eliminated this element.
No Confidentiality of Settlements (SB 820) Parties in California are now prevented from entering into confidential settlements when resolving sexual assault, sexual harassment, gender discrimination, or related retaliation claims. The new law prohibits and makes void all provisions in settlement agreements entered into after January 1, 2019 that prevent disclosure of factual information related to these types of claims and suggests that a violation of the law may give rise to a cause of action for civil damages. Parties may agree to restrict disclosure of the amount of the settlement, however. Additionally, the identity of the claimant can be shielded within a settlement agreement, at the request of the claimant, so long as a government agency or public official is not a party to the settlement agreement.
Increased Sexual Harassment Prevention Training (SB 1343) This law greatly expands an employer's obligation to provide sexual harassment prevention training to employees. Employers with five or more employees must provide at least two hours of sexual harassment prevention training to all supervisory employees, and at least one hour of sexual harassment prevention training to all nonsupervisory employees. The training must be completed by January 1, 2020 and occur every two years thereafter. The DFEH will develop and post online training courses on its website.
Increase to Statute of Limitations for Sexual Assault (AB 1619) This statute allows the filing of a civil action for recovery of damages suffered as a result of sexual assault or attempted sexual assault against adults to be brought within the later 10 years from the date of the last act, attempted act, or assault with intent to commit an act of sexual assault by the defendant against the plaintiff or 3 years after the date the plaintiff discovers or an injury or illness resulting from the sexual assault or attempted sexual assault. The statute applies to lawsuits commenced on or after January 1, 2019, thus it opens potential liability for actions that previously would have been barred. The law is not limited to perpetrators of assault, and thus could impose liability against an employer who employed an individual alleged to have engaged in or attempted to engage in sexual assault.
No Waiver of Right to Testify (AB 3109) New California Civil Code §1670.11 makes any provision in a contract or settlement agreement entered into on or after January 1, 2019, void and unenforceable if it waives a party's right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. This new law also applies to the agents or employees of contracting parties, which means that an employee cannot have his/her right to testify waived by the employer. The law does not necessarily invalidate general confidentiality agreements if limited to having the testifying party do so pursuant to a court order, subpoena, or written request from an administrative agency or the legislature. If a contract or settlement agreement contains such a provision, the specific term that bars the testimony is void and unenforceable. However, the rest of the contract will remain enforceable.
Consideration of Criminal History (SB 1412) The California Labor Code prohibits employers from considering judicially expunged or sealed criminal convictions when making hiring decisions. The law currently provides exceptions if other state or federal laws require consideration of the expunged or sealed convictions. SB 1412 clarifies that employers who meet this exception may only consider expunged or sealed convictions that have a direct impact on the applicant's ability to perform the job.
Discrimination and Accommodation
Female Directors on Boards (SB 826) By the end of 2019, all publicly held domestic or foreign corporations whose principal office is located in California must have a minimum of one female director on its board. By the end of 2021, these corporations must comply with the following: (1) if the number of directors is six or more, the corporation must have a minimum of three female directors; (2) if the number of directors is five, the corporation must have a minimum of two female directors; and (3) if the number of directors is four or fewer, the corporation must have a minimum of one female director.
FEHA Amendments (SB 1300) New provisions have been added to the Fair Employment and Housing Act that make it unlawful for an employer to require an employee to sign a release of their employment discrimination claims in exchange for a bonus, raise, or continued employment. This is distinguished from situations in which the employee has already filed a claim. Under existing law, employers are liable for sexual harassment by non-employees, such as customers or vendors, if the employer knew or should have known about the harassment but took no remedial steps. The new law expands employers' liability beyond sexual harassment, to any other type of harassment, including harassment on age or disability.
Lactation Accommodation (SB 1976) This law requires employers to make reasonable efforts to provide employees with the use of a room or location that is not a bathroom, to express breast milk. The prior version of the law only identified a toilet stall as an unsuitable location for a lactation accommodation.
Wage and Hour
On-Call Rest Breaks/Petroleum Industry (AB 2605) This new law creates an exception to the general law regarding whether employees may be on-call during rest break. It governs only the petroleum industry, providing that employees in "safety-sensitive positions" may be required to carry communication equipment to be reached on a rest break. The law requires that any employee called in to address an emergency during a rest break must then be provided with another rest period, or the employer must pay a rest period premium.
Commercial Drivers (AB 2610) AB 2610 creates an exception to the general meal period timing and obligations for commercial drivers. This law excepts commercial drivers employed by a motor carrier transporting nutrients and byproducts from a licensed commercial feed manufacturer to a customer located in a remote rural location, such that those drivers may commence a meal period after 6 hours of work, so long as 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.
Human Trafficking Training (SB 970) Hotel and motel employers are required to provide a minimum of 20 minutes of human trafficking training, by January 1, 2020, to each employee who is likely to come in contact with victims of human trafficking. This includes, but is not limited to, reception, housekeeping, and bell-service employees, and drivers. The training requirement applies to employees hired as of July 1, 2019 and must be completed within six months of hire and every two years thereafter.
Expansion of Paid Family Leave (SB 1123) This law expands the scope of California's Paid Family Leave program, which provides wage replacement benefits to workers who take time off for specified reasons, to include wage replacement benefits for employees who take time off for reasons associated with being called to active duty or active duty of the individual's spouse, domestic partner, child, or parent on and after January 1, 2021.
Employers are encouraged to review their practices, policies, and employee handbooks to ensure they are compliant with the new laws. Our team of experienced attorneys are available to provide guidance on California's ever-growing legislation that continues to impact employers and their businesses.
Colleen M. McCarthy, Esq. is a Partner and chairs the Firm’s Employment Practices Group. She has dedicated her practice to representing and protecting employers, with a particular emphasis on risk mitigation through preventative counseling and sound practical advice. For 15 years, Ms. McCarthy has counseled employers about the complicated employment laws that impact their businesses to ensure that they are in compliance, and to reduce the chance of costly litigation. Ms. McCarthy may be reached by phone at (949) 608-6900 or email firstname.lastname@example.org