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California Employers Need to Brace Themselves for the Flurry of New Laws

Peter J. Woo, Stephen C. Mazarra, & Erica B. Row, Goldberg Segalla

Jan. 14, 2019

Former California Governor Jerry Brown recently signed a slew of employment-related bills into law, many of which will take effect on January 1, 2019. These laws will have an immediate impact on the workplace and will require employers in the Golden State to revamp existing practices and procedures.

 

What is readily apparent is that the #MeToo movement provided the impetus for much of the new legislation. Many of the new laws are aimed at curtailing acts of harassment and discrimination in the workplace. Of significance, employers will no longer be able to enter into confidentiality agreements related to claims of sexual assault, sexual harassment, gender discrimination, and related retaliation and “failure to prevent” claims. However, as detailed in the following, the labor and employment laws set to go into effect in 2019 run the gamut and will affect employers in all industries, including but not limited to those in education, entertainment, construction, and government.

 

Reacting to the #MeToo Movement with Anti-Harassment Laws

Laws to encourage reporting and disclosure of claims related to sexual harassment:

 

Protection for Employers Against Defamation Suits – AB 2770 provides employers with protection from potential defamation suits resulting from communications with prospective employers regarding sexual harassment complaints against former employees. Subject to limited exceptions, a qualified privilege now exists with respect to an employer’s communications with a prospective employer regarding whether the employer would re-hire an employee alleged to have engaged in sexual harassment, so long as those communications are made without malice.

 

No More Confidentiality Clauses – SB 820 prohibits confidentiality clauses in settlement agreements preventing disclosure of information relating to claims of sexual harassment, sexual assault, sex discrimination, and related retaliation and “failure to prevent” claims filed in a court of law or with an administrative agency. However, the law does not prevent a claimant from limiting the disclosure of (1) his or her identity, or (2) facts that could lead to the discovery of his or her identity. Additionally, courts will no longer be able to restrict the disclosure of such facts in relevant civil proceedings.

 

No Waiving the Right to Testify – AB 3109 makes it unlawful for any settlement or contract term entered into after January 1, 2019 to require a party to waive the right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. The law applies where a party’s testimony is required or requested pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.

 

Redefining Sexual Harassment – SB 1300, the strongest, and largest, sexual harassment bill passed this year will amend California’s Fair Employment and Housing Act (FEHA) in a number of ways, including (1) to expand employers’ potential liability by adopting or rejecting specific judicial decisions regarding sexual harassment; (2) to expand an employer’s potential liability under FEHA for acts of nonemployees to all harassment (removing the “sexual” limitation); (3) to prohibit an employer from requiring an employee to sign a release, as a condition of employment, raise, or bonus (but not as part of a bona fide dispute), of (a) FEHA claims or rights, or (b) a document prohibiting disclosure of information about unlawful acts in the workplace; (4) to prohibit a prevailing defendant from being awarded attorneys fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so; and (5) to authorize (but not require) an employer to provide bystander intervention training to its employees.

 

Clarifying Hiring Practices; Equal Pay Changes – AB 2282 clarifies the ban on salary history inquiries and the requirement to provide pay scales to applicants. The law will allow employers to inquire into an applicant’s salary expectations for the prospective position. In addition, external applicants will be entitled to a pay scale upon request, but only after completing an initial interview.

 

Criminal History Inquiries – SB 1412 amends in pertinent part Labor Code section 432.7, which limits an employer’s ability to conduct criminal history inquiries. Current law makes an exception for employers who are required by law to inquire into an applicant’s or an employee’s criminal history. The new law narrows this exception to apply only where state or federal law require an employer to inquire into a “particular conviction” or where an employer cannot by law hire someone with a “particular conviction.”

 

Changing Employer Obligations in the Workplace; Gender Composition on Boards – SB 826 mandates that public companies based in the state have at least one female member (people who self-identify as women, regardless of their designated sex at birth) on their boards of directors by the end of 2019. By the end of 2021, corporations with five or more directors will be required to include at least two female members. Corporations failing to comply with these requirements will face penalties ($100,000 fine for the first violation and a $300,000 fine for further violations).

 

Expansion of Anti-Harassment Training Requirements – SB 1343 extends California’s requirement that employers with 50 or more employees provide supervisory personnel with anti-harassment training to employers with five or more employees, including seasonal and temporary employees. Further, the law now requires such employers to ensure that all non-supervisory employees complete at least one hour of sexual harassment training. The law also changes obligations for employers of seasonal/temporary and migrant/agricultural workers.

 

Beginning January 1, 2020, SB 1343 requires that for seasonal and temporary employees, employers shall provide the required anti-harassment training within 30 calendar days after the date of hire, or within 100 hours worked — whichever occurs first. The law requires that temporary services agencies provide training to temporary employees employed by the agency. For migrant and seasonal agricultural workers, sexual harassment prevention training shall be required to meet the standards set forth in Labor Code section 1684, subdivision (a)(8).

 

Altering Employee Compensation and Benefits Practices Payroll Records Requests – SB 1252 clarifies existing laws regarding an employee’s right to inspect or copy their own payroll records and requires that an employer must provide the copies of the records in addition to inspecting them.

 

Lactation Accommodations – Pursuant to AB 1976, employers may not designate a bathroom as a designated lactation room. The designated location must be private and in close proximity to the employee’s work area. Temporary lactation rooms are permitted as long as the following conditions are met: (1) the employer is unable to provide a permanent lactation location; (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. However, the employer may be excused from the new law if it imposes an undue hardship and so long as reasonable efforts are made to provide a room that is not a toilet stall.

 

Paid Family Leave Extended for Family Members of Armed Forces Members - Effective on and after January 1, 2021, SB 1123 extends leave benefits to any employee who takes time off to attend to situations related to the covered active duty status of the employee’s spouse, registered domestic partner, child, or parent (but not a sibling) who is a member of the U.S. Armed Forces (as opposed to only the member of the U.S. Armed Forces himself or herself).

 

FELS can help you with compliance; for assistance, please email us at This email address is being protected from spambots. You need JavaScript enabled to view it. or call us at 800-753-9073.

 

Peter J. Woo, Stephen C. Mazzara, Erica B. Row are members of Goldberg Segalla's nationwide Employment and Labor practice, where Peter serves as National Vice-Chair. An AmLaw 200 firm with over 400 attorneys, Goldberg Segalla's 22-office footprint reaches from Los Angeles to London, with teams based in New York, Chicago, Philadelphia, Miami, St. Louis, and other major business and economic centers across the U.S.