Hey Compliance Warriors!
Looks like California employers will be busy in 2019 as they face quite a few law changes. Heres an overview of what’s coming. Read on…
Article via: lexology.com
“Why it matters
With the dozens of new laws enacted by the California legislature and signed into law by outgoing governor Jerry Brown, employers in the Golden State will have little time to rest over the holidays as they prepare for new requirements. The new laws include an expansion on sexual harassment training requirements, a prohibition on nondisclosure agreements related to claims of sexual harassment, changes to the existing rules for lactation accommodations, and the mandatory inclusion of women on corporate boards of directors. Although it seems hard to believe, Gov. Brown did veto some of the bills passed by lawmakers, including a potential game-changer that would have banned arbitration for claims arising under the Labor Code and the Fair Employment and Housing Act (FEHA). California employers need to get up to speed on the changes because the bulk of the new laws take effect in coming months.
Detailed discussion
Below are some of the most important and widely applicable new California laws.
Prohibition of Confidentiality Provision in Certain Settlement Agreements
- Senate Bill 820. Covering both private and public employers, the Stand Together Against Non-Disclosures (STAND) Act prohibits the inclusion of a provision in a settlement agreement that prevents the disclosure of factual information relating to claims of sexual assault, harassment, discrimination or related retaliation in the workplace. Any such provision entered into on or after January 1, 2019, is void as a matter of law and against public policy. The law does carve out an exception for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, as long as the anonymity is requested by the claimant and a government agency or public official is not a party to the agreement.
- Waiving a Party’s Right to Testify in a Criminal Proceeding is Prohibited
- Assembly Bill 3109. Pursuant to the new law, any contract or settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in a legal proceeding regarding criminal conduct or sexual harassment on the part of the other contracting party, or the other party’s agents or employees, is void and unenforceable. The law applies to testimony whether required or requested by court order, subpoena, or administrative or legislative request.
Most California Employers Will Be Required to Provide Sexual Harassment Training
- Senate Bill 1343. This law requires an employer who employs five or more employees—including temporary or seasonal workers—to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter. The California Department of Fair Employment and Housing was tasked with making available one-hour and two-hour online training courses that employers could use.
California Civil Code Amended to Expand Employment Relationships Subject to Sexual Harassment Claims
- Senate Bill 224. An amendment to the Civil Code, the law adds new types of employment relationships that are subject to a claim for sexual harassment where one party holds him or herself out as being able to help another establish a business or professional relationship either directly or with a third party. Eliminating the element that the plaintiff must prove there was an inability to easily terminate the relationship, the changes added an investor, elected official, lobbyist, director and producer among the listed persons who may be liable.
Employers Can No Longer Reward Employee Release of FEHA Claims
- Senate Bill 1300. SB 1300 established that it is an unlawful practice for an employer to require an employee to release a FEHA claim in exchange for a bonus, raise or continued employment. The law also expanded liability for employers beyond just sexual harassment to encompass any kind of unlawful harassment by nonemployees where the employer knew or should have known of the harassment and failed to take appropriate remedial action. Lawmakers included several statements of intent that will make summary judgment an uphill battle for employers, such as that hostile work environment cases are “rarely” appropriate for disposition on summary judgment and that a single incident of harassing conduct can be sufficient to create a triable issue of fact regarding a hostile work environment claim.
Women to Be Required on Corporate Boards of Directors
- Senate Bill 826. By the end of 2019, publicly held domestic or foreign corporations with principal executive offices in California must have a minimum of one female director on the board. A corporation may increase its number of directors to comply with this mandate. Additional requirements for the inclusion of women on corporate boards of directors are set for the end of 2021, when a minimum of three female directors must be present on boards with six or more directors; two female directors must have a seat if the board has five directors; and if the board has four or fewer directors, one female director is sufficient to satisfy the law.
Amendments to Existing Lactation Accommodations
- Senate Bill 1976. SB 1976 requires employers to make “reasonable efforts” to provide a room “other than a bathroom” to accommodate employees expressing breast milk. While the law encourages employers to make the location permanent, it permits the use of a temporary space if the employer can’t find a permanent solution due to operational, financial or space limitations. A limited exception was included for employers who can establish the law creates an undue hardship taking into account the size, nature or structure of the employer’s business.
Expansion of Paid Family Leave
- Senate Bill 1123. An effort to broaden paid family leave benefits for employees who take leaves of absences for specified purposes and receive partial wage replacement, this amendment adds new reasons for leave: being called to active duty or a spouse, domestic partner, parent or child being called to active duty. SB 1123 takes effect beginning January 1, 2021.
Narrowing Allowance of Criminal History Inquiries
- Senate Bill 1412. Under prior law, employers were permitted to inquire about an applicant’s or employee’s criminal history where federal or state law required such an inquiry. SB 1412 narrows this exception, allowing employers to delve into criminal history only when an employer is required by law to ask about a “particular conviction” or in a situation where an employer is prohibited by law from hiring someone with a “particular conviction.” The law defines “particular conviction” as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”
Clarification of the Fair Pay Act
- Assembly Bill 2282. In 2017, the legislature enacted the Fair Pay Act, which prohibited employers as of January 1, 2018, from asking job applicants for “salary history information.” However, the law left several questions unanswered. AB 2282 attempted to clarify the situation, making clear that an “applicant” is an individual who seeks employment and not a current employee and defining “pay scale” as a salary or hourly wage range that does not include bonuses or equity ranges. Employers may also ask about an applicant’s salary expectations without running afoul of the Fair Pay Act.
Gov. Brown elected to veto several of the bills sent to his desk from the legislature.
- Assembly Bill 3080. This measure would have prohibited an employer from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of FEHA or other specific statutes governing employment. Any agreement entered into, modified or extended on or after January 1, 2019, would also have been forbidden from requiring, as a condition of employment, that a job applicant, employee or independent contractor not disclose instances of sexual harassment the individual suffered, witnessed or discovered in the workplace.
- Assembly Bill 1867. Employers with 50 or more workers would have been required to maintain records of sexual harassment complaints for at least five years after the last day of employment of either the complainant or the alleged harasser named in the complaint, whichever was later, under the bill.
- Assembly Bill 1870. Had it been enacted, this bill would have amended FEHA to extend a complainant’s time to file an administrative charge with the Department of Fair Employment and Housing from one year to three years for complaints alleging employment discrimination, including sexual harassment.”
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Until Next Time, Be Audit-Secure!
Lisa Smith
