Happy New Year. As with any year in California, that means new employment laws are here to ring in 2019!
The biggest changes taking effect in 2019 for most employers will be the changes to California's harassment and discrimination laws, but there are a handful of other changes as well. Here's a brief summary:
New Training Requirement
California dramatically expanded sexual harassment training requirements with SB 1343. Prior to January 1, 2019, the law required employers with 50 or more employees to provide supervisors with sexual harassment training. Starting January 1, 2019, employers with FIVE or more employees are required to provide sexual harassment training to their employees. Supervisory employees must undergo 2 hours of training to supervisory. Non-supervisory employees must undergo one hour of training by January 1, 2020 and once every two years thereafter.
The Relationships That Can Serve as the Basis for a Harassment Claim Have Expanded
With SB 224, the legislature expressly added several professional relationships that can form the basis of a sex harassment claim. This bill amends section 51.9 of the Civil Code to explicitly include lobbyists, elected officials, directors, producers, and investors. The upshot is that a person who dangles a professional relationship as "bait" to start a pattern of sexual harassment can be subject to liability under this expansion to Section 51.9 of the Civil Code.
Existence of Sex Harassment Claims Are Now Subject to Public Disclosure
The existence of a sex harassment claim is now subject to public disclosure on account of two new laws. The passage of AB 3109 voids any provision in a contract or settlement agreement that prevents a party to the contract from testifying about criminal conduct or sexual harassment. Similarly, SB 820 prohibits settlement agreements entered into after January 1, 2019 from containing terms that bar a claimant from disclosing facts related to claims of sexual assault, sexual harassment, gender discrimination or related retaliation when those claims have been filed in court or before an administrative agency. Employers may still keep the amount of a settlement confidential.
Greater Liability for Employers and Sex Harassment Claims are Now Harder to Defend
The Fair Employment and Housing Act received a series of small updates via SB 1300. The new changes to FEHA include:
- A provision making it unlawful to require an employee to release a FEHA claim in exchange for a bonus, raise, or continued employment;
- Employers are now liable for any kind of harassment by third parties when the employer knew or should have known of the harassment and failed to take action; and
- The addition of legislative statement that harassment claims are rarely appropriate for resolution on summary judgment thereby making it harder for employers to prevail on harassment claims.
Statute of Limitations Increased for Civil Claims Based on Sexual Assault
Finally, AB 1619 significantly enlarged the statute of limitations for civil claims for actual or attempted sexual assault to 10 years after the alleged assault or 3 years after the plaintiff discovered or reasonably discovered injury as a result of the assault, whichever is later.
New Laws Relating to Hiring & Personnel Practices
Clarification Regarding Employer Inquiries about Criminal History during Hiring Process
Labor Code section 432.7 which prohibits employers from inquiring about criminal history was amended by SB 1412. This amendment clarifies that an employer may inquire about criminal history only where the employer is banned from hiring persons with "particular convictions". The amendment clarifies that "Particular conviction" means, to paraphrase the amendment, a conviction of a class of crimes that excludes a person from certain jobs (i.e. schools are prohibited by law from hiring persons convicted of certain crimes).
Employer's Obligation to Provide Payroll Records on Request
Labor Code Sections 226 and 1198.5 already require that employers provide payroll and personnel files within 21 days of a request from an employee or former employee. The new SB 1252 clarifies this requirement: if an employee requests a copy of the records, the employer must actually provide copies, rather than making employees make the copies themselves.
Changes to Lactation Accommodation Requirements
L abor Code 1030 already requires employers to make reasonable efforts to provide a location (other than a toilet stall) to be used for lactation. The brand new SB 1976 specifies, in remarkable detail, that a compliant lactation space should be a permanent space (but not a restroom), but may be a temporary location if the employer is unable to provide a permanent space and the temporary location is both private and free from intrusion while being used for lactation purposes and not used for other purposes while being used for lactation. The new law also permits employers some leeway in coming up with a temporary location (for example, agricultural employers are specifically permitted to use an air-conditioned truck cab as a lactation space.)
Industry, Entity Specific and Miscellaneous New Laws
S B 826 requires public corporations with executive offices in California to have at least one female board member by the end of 2019 and increasing numbers thereafter based on board size...AB 1654 exempts unionized workers, construction workers from PAGA claims provided that the applicable collective bargaining agreement meets certain wage thresholds and provides a grievance procedure...Already in effect as of September 19, 2018 is AB 1565 which makes contractors performing work in the state liable for unpaid wages by subcontractors...Taken together, AB 2034 and SB 970 requires public transit and hotel works to receive training relating to the identification and prevention of human trafficking...Under AB 2605, unionized oil and petroleum industry workers are exempt from the ruling in Augustus v. ABM and can be permitted to remain "on-call" during rest breaks...And finally, for all you employers who contract with motor carrier companies that hire port drayage workers, bad news: under SB 1402 you can be held liable (for wages and damages, including attorneys fees and penalties) if your port-drayage motor carrier goes rogue and fails to pay wages...So be extra sure to keep your port drayage motor carriers on a short leash in 2019.