Below is a list of key employment-related bills that were recently signed into law. These new laws go into effect on January 1, 2019, unless otherwise noted. Follow the links for full copies of the bills. Let us know if you have any specific questions about how the new laws affect your organization.
AB 1565 (Contractor Liability). This new law took effect immediately as urgency legislation. It clarifies a law enacted last year imposing liability on a direct contractor for unpaid wages a subcontractor owes its workers. The new law provides that a direct contractor may withhold payments to a subcontractor for “disputed sums.” In order to withhold payment, the direct contractor must specify in its contract with the subcontractor the specific information the direct contractor will require that the subcontractor provide, such as payroll records and records related to hours worked.
AB 1976 (Lactation Accommodation). This new law makes changes to existing lactation accommodation law. Existing law requires employers to make reasonable efforts to provide a location other than a toilet stall to be used for lactation. The new law specifies that the location should be something other than a bathroom and further specifies that an employer would be in compliance by providing a temporary location if (1) the employer is unable to provide a permanent location because of operational, financial, or space limitations; (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. The new law also provides that an agricultural employer may comply by allowing an employee to use a private, enclosed and shaded space, including an air-conditioned cab of a truck or tractor. If an employer can prove that it is an undue hardship to comply with these requirements, the employer may be able to provide the use of a room or other location (including a bathroom) other than a toilet stall for the employee to use for lactation purposes.
AB 2282 (Salary History). Last year, there was a new law that prohibited an employer from relying on salary history of an applicant as a factor in determining whether to offer employment or what salary to offer and required an employer to provide a pay scale to an applicant upon request. This new law clarified some ambiguities in that law. Specifically, the Labor Code was amended to clarify that (1) an employer can ask about an applicant’s salary expectations for the position being applied for; (2) applicants are entitled to a pay scale upon request after completing an initial interview; and (3) “pay scale” is defined as consisting of a salary or hourly wage range. The law also provides that an employer can make compensation decisions based on an employee’s current salary, as long as it is justified by factors such as a seniority or merit system.
AB 2770 (Privileged Communications Regarding Complaints of Sexual Harassment). This new law protects certain communications as privileged making them immune from defamation lawsuits as they relate to complaints of sexual harassment. This new law provides that employees who, based on credible evidence, and without malice, make a complaint of sexual harassment will not be liable for injury to the alleged harasser’s reputation. Communications between the employer and victims and witnesses will be protected. Current and former employers may state whether they would rehire an employee and whether that decision not to rehire is based on the employer’s determination that the former employee engaged in sexual harassment.
AB 3109 (Disclosure of Sexual Harassment). This law provides that a provision in a contract or settlement agreement is 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.
SB 224 (Sexual Harassment in Professional Relationships). Currently, Civil Code Section 51.9 provides that an individual may be liable for sexual harassment that occurs in the course of a business, service or professional relationship where the client or customer cannot easily end the relationship. This includes professionals such as doctors, attorneys, real estate agents, and accountants. The amendment expands the list of professionals to include elected officials, lobbyists, investors, directors and producers. It also expands liability to anyone who holds himself or herself out as being able to help the client or customer establish a business, service or professional relationship, whether with that individual or with a third party.
SB 820 (Settlement of Sexual Harassment Claims). This new law prohibits provisions in settlement agreements entered into on or after January 1, 2019 that prevent disclosure of factual information pertaining to claims of sexual assault, sexual harassment, or harassment or discrimination based on sex or retaliation that are filed in a civil or administrative action. The new law does not prohibit a provision in the settlement agreement that precludes the disclosure of the amount paid in settlement of a claim. Additionally, at the claimant’s request, the settlement agreement may include a provision that shields the identity of the claimant and all facts that could lead to the discovery of the claimant’s identity.
SB 826 (Females on Board of Directors). This bill requires that by the end of 2019, publicly-held domestic or foreign corporations whose principal executive offices are located in California must have at least one female on its board of directors. By the end of 2021, these corporations must comply with the following requirements: (1) If its number of directors is six or more, the corporation shall have a minimum of three female directors. (2) If its number of directors is five, the corporation shall have a minimum of two female directors. (3) If its number of directors is four or fewer, the corporation shall have a minimum of one female director. The new law requires the Secretary of State to publish various reports on its website documenting the number of corporations in compliance with these provisions, and other statistical information.
SB 1123 (Expanded Paid Family Leave). California has a paid family leave program that provides partial wage replacement to employees who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement. This new law expands paid family leave benefits beginning January 1, 2021 to employees who take time off to participate in a qualifying exigency related to active military duty service of the employee’s spouse, domestic partner, child or parent.
SB 1252 (Copy of Payroll Records). Existing law allows employees to inspect or copy their payroll records within 21 days of such a request. This new law clarifies that requirement to state that if an employee requests a copy of the records, the employer must now make and provide the copies rather than requiring the employee to make the copies themselves.
SB 1300 (FEHA Amendments Regarding Sexual Harassment). Existing law (Fair Employment and Housing Act (“FEHA”)) prohibits harassment on the basis of sex or other protected categories. This new law amends FEHA to expand the scope of prohibited harassment law in several ways, including: (1) to add a provision making it an unlawful practice for an employer to require an employee to release a FEHA claim in exchange for a bonus, raise, or continued employment; (2) to prohibit employers from obtaining an employee’s release of claims under FEHA or a nondisparagement or confidentiality agreement that purports to prevent an employee from disclosing information about unlawful acts unless certain conditions are met (a release is permissible as part of a “negotiated settlement”); (3) to make employers liable for any kind of unlawful harassment by non-employees (not just for sexual harassment as under existing law) where the employer knew or should have known of the harassment and failed to take appropriate remedial action; (4) authorizes employers to provide bystander intervention training. and (5) to add certain statements of legislative intent to make it harder for employers to prevail on harassment claims (i.e., harassment cases are rarely appropriate for disposition on summary judgment, and a single incident of harassment may suffice to support a finding of a hostile work environment).
SB 1343 (Sexual Harassment Training). Existing law requires employers with 50 or more employees to provide at least 2 hours of sexual harassment training to supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years. This new law requires an employer with 5 or more employees, including temporary or seasonal employees, to provide at least 2 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 2 years thereafter. The law also requires the Department of Fair Employment and Housing to develop online training courses and to post the courses on the department’s website.
SB 1412 (Criminal History Inquiries). Existing law generally prohibits an employer from considering an applicant’s judicially sealed or expunged convictions when conducting a criminal background check. However, there is currently an exception for employers who are required by state or federal law to inquire into an applicant’s criminal history. The exception is now amended to apply only where an employer is required by law to inquire into a “particular conviction” or where an employer cannot legally hire an applicant with a “particular conviction.” Specifically, the new law clarifies that employers may only consider “particular convictions” when considering criminal histories. The bill 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.”
AB 1654 (No PAGA Claims – Unionized Construction Workers). This new law provides that employees in the construction industry cannot bring a PAGA claim. Specifically, this new law provides that unionized workers who are covered by a collective bargaining agreement in effect before January 1, 2015 that (1) provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for the employee to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate; (2) prohibits all of the violations of the Labor Code that normally would be redressable under PAGA; (3) expressly waives PAGA rights; and (4) provides for a grievance and binding arbitration procedure to redress those violations and authorizes the arbitrator to award any and all remedies otherwise available under the Labor Code (except PAGA remedies).
AB 2605 (On-Call Rest Breaks – Petroleum Industry). This new law was enacted as urgency legislation and took effect immediately. The 2016 California Supreme Court ruling of Augustus v. ABM Security Services, Inc. provided that employees could not be required to carry radios or other forms of communication devices during rest breaks. This new law provides an exception to the rest break requirements by for unionized employees working in safety-sensitive positions in the petroleum industry. Specifically, this new law provides that such employees may be required to remain on call and carry instant communication devices during rest breaks. If the employee is required to interrupt a rest break to address an emergency, another rest break must be provided reasonably promptly after the circumstances that led to the interruption have passed. If that is not an option, the employee must receive an additional hour of pay at the employee’s regular rate of pay.
SB 970 (Human Trafficking – Hotel Industry). This new law amends FEHA to require hotel and motel employers, by January 1, 2020, to provide at least 20 minutes of classroom or interactive training regarding human trafficking awareness to employees who are likely to interact or come into contact with victims of human trafficking. This applies to employees who are employed as of July 1, 2019, including employees who work in a reception area, perform housekeeping duties, help customers in moving their possessions, or drive customers. The new law requires covered employers to provide such training to covered employees within 6 months of hire and once every two years thereafter.