By Jaimee K. Wellerstein, Esq.
By Annette M. Barber, Esq.
As we ring in a new year and a new decade, California employers will be faced with a number of important new laws. Following are some key employment laws that will take effect this coming year:
Sexual Harassment Training (SB 530): Last year, California employers were faced with SB 1343 which requires employers with at least 5 employees to provide at least one (1) hour of sexual harassment prevention training to all non-supervisory employees and two (2) hours for supervisory employees in California by January 1, 2020. SB 530 extends the deadline for mandatory sexual harassment training to January 1, 2021, and requires new supervisors to be provided trained within six (6) months of the assumption of a supervisory position.
Note that temporary services employers (including private patrol operators) must train all newly hired employees as of January 1, 2020, within 30 days of hire or 100 hours worked, whichever is earlier. Temporary services employers have until January 1, 2021 to train all current employees.
Prohibition of Mandatory Arbitration Agreements (AB 51): As of January 1, 2020, employers are prohibited from entering into, modifying or extending mandatory arbitration agreements as a condition of employment. Any such agreements must be voluntary and employers cannot retaliate or discriminate against employees or applicants because they refused to execute the agreement. It is strongly recommended that all current arbitration agreements be carefully reviewed by counsel.
Sanctions for Failure of Employer to Timely Pay Arbitration Costs (SB 707): Employers must pay all arbitration fees and costs on time. If they are not paid within thirty (30) days after the due date, the employer is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration. As a result, the employee may choose to either withdraw their claim from arbitration and proceed in court, or compel arbitration. In all cases in which the employee proceeds in court based on the employer’s failure to timely pay arbitration fees and costs, the statute of limitations period with regard to all claims brought are tolled as of the date of the first filing of a claim in any court, arbitration forum, or other dispute resolution forum. The breaching party (the employer) can also be responsible for attorney’s fees and costs, and possibly evidentiary and terminating sanctions.
Expansion of Lactation Accommodation Requirements (SB 142): This bill expands existing law relating to lactation accommodation and adds a number of new requirements for the space itself, including access to running water, refrigeration to store milk, and electricity or charging stations for electric or battery operated breast pumps. The bill also provides for additional break time to express milk, policy requirements and penalties under the Labor Code for violations.
Settlement Agreements (AB 749): AB 749 voids “no rehire” provisions in settlement agreements entered into on or after January 1, 2020. The law does include some significant exceptions, including where the employer made a good faith determination that the individual engaged in sexual harassment or assault. Further, the law does not require an employer to rehire an individual “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.”
Independent Contractors (AB 5): AB 5 codifies the California Supreme Court’s ruling in Dynamex Operations West, Inc. (2018) 4 Cal. 5th 903, which changed the test used to determine whether California workers are employees or independent contractors. AB 5 codifies the “ABC” test established in Dynamex, and specifically exempts certain occupations, industries and contractual relationships. The “ABC” test presumes that all workers are employees, and places the burden on the hiring business to establish the following factors in order to classify a worker as an independent contractor:
- (A) the worker is free from the control and direction of the hirer in connection with the performance of the work;
- (B) the worker performs work that is outside the usual course of the hiring entity’s business; and
- (C) the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity. If the hiring business fails to establish any of these factors, the worker will be classified as an employee. Extreme care and caution should be used with regard to classification of all independent contractors.
Prohibited Discrimination Based on Race Based Hairstyles (SB 188): Known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, this law expands the definition of “race” under the California Fair Employment and Housing Act (FEHA) to include traits historically associated with race, such as hair texture and protective hairstyles. “Protective hairstyles” include, but are not limited to, “braids, locks, and twists.” The CROWN Act acknowledges the disparate impact workplace dress code and grooming policies potentially could have on black individuals. Policies that prohibit natural hair, including afros, braids, twists, and locks, are more likely to deter black applicants and burden or punish black employees than any other group. Employers should review their dress codes, grooming policies, and general hiring and employment practices to ensure compliance.
Statute of Limitations for FEHA Claims Extended to Three Years (AB 9): Under existing law, the California Fair Employment and Housing Act (FEHA) requires that an employee alleging discrimination, harassment, or retaliation must first file a verified complaint with the Department of Fair Employment and Housing (DFEH) before filing a civil action in court. Currently, the employee has a one (1) year statute of limitations to file their DFEH complaint. AB 9, known as the Stop Harassment and Reporting Extension (SHARE) Act, extends the deadline to file a claim with the DFEH to three (3) years. Employers should note that AB 9 does not revive claims that have already lapsed under the current one-year statute of limitations rule. Employers should remember to Document! Document! Document! (And save those documents!)
Amendment to California Consumer Privacy Act (“CCPA”) (AB 25): AB 25 clarifies that “consumers” under the CCPA includes employers, but exempts employers as long as they are collecting the data of its employees and job applicants for purposes solely relating to employment. However, this exemption will expire on January 1, 2021, In the meantime, this law still requires businesses, including employers, to comply with the following effective January 1, 2020: 1) Covered employers must implement physical and electronic security measures to safeguard personnel information of employees and job applicants; and 2) Covered employers must provide a disclosure notice to employees and job applicants listing the categories of “personal information” collected about them and the purposes for which the information will be used. The disclosure may be provided to current employees through a handbook or memo, and to applicants at the time of application.
Recovery of Civil Penalties for Unpaid Wages (AB 673): Commencing January 1, 2020, employees will have the right to recover civil penalties for unpaid wages. These civil penalties were previously enforceable only through an action by the Labor Commissioner. Now, employees can recover $100 for each initial violation, and for a “subsequent violation, or any willful or intentional violation” of $200 for each failure to pay. AB 673 limits employee recovery to statutory penalties or civil penalties under the Private Attorney’s General Act (“PAGA”), but not both, for the same violation.
Unpaid Wages (SB 688): This law expands the enforcement abilities of the Labor Commissioner. Amending Labor Code section 1197.1, which currently permits the Labor Commissioner to cite employers for failing to pay at least the minimum wage, SB 688 expands the power to issue citations for violations of unpaid wages that were less than the wage set by contract in excess of minimum wage.
Sexual Violation and Harassment Prevention Training in the Janitorial Industry (AB 547): AB 1978 went into effect January 1, 2019 and increased protections by initiating a statewide program to formally address the threats faced by women cleaning offices alone at night. AB 547 sets up the training standards and janitors will have “peer-to-peer” training. Current and former janitors will be certified as trainers and this law requires the Director of the Department of Industrial Relations to convene an advisory committee to identify qualified organizations that janitorial employers must use for in-person training on sexual violence and harassment prevention for janitorial employees. Training will go into effect January 1, 2021.
Jaimee K. Wellerstein, Esq. is a Partner and the firm’s Employment Team Head. Representing employers in all aspects of employment law, Ms. Wellerstein collaborates with her clients to develop proactive business and legal strategies to try to avoid workplace conflict and employment disputes. She provides legal advice and counsel to numerous businesses, including conducting individualized training programs for both management and employees. Ms. Wellerstein performs internal audits of her clients’ employment practices to ensure compliance with the rapidly-changing world of employment laws, and guides investigations of employee allegations regarding harassment, discrimination, and employee misconduct.
When litigation cannot be avoided, Ms. Wellerstein aggressively defends her clients against employment law claims in the state and federal courts, as well as at administrative hearings, arbitrations, and mediations. Having defended numerous representative and individual lawsuits on behalf of her clients, Ms. Wellerstein is a skilled litigator and negotiator with a broad spectrum of experience upon which to draw.
A frequent speaker on numerous topics, including employment law and contract law, Ms. Wellerstein regularly conducts training seminars and programs for managers and employees in all areas of employment practices and policies.
Annette M. Barber, Esq. joined the firm as Special Counsel after 17 successful years of employment with a global security company of 100,000 U.S. employees. As corporate employment counsel for the security company, Ms. Barber was involved in managing employment litigation and providing advice and counsel for management. She was then promoted to Corporate Vice President directing HR Compliance nationwide for all 50 states, Puerto Rico and Guam.
As Special Counsel, Ms. Barber works with employers to provide guidance on all employment related issues and specializes in assisting employers with staying compliant with the myriad of employment laws. She provides employers with the tools necessary to be proactive with compliance, including creating policies and procedures, employee handbooks and all employment related documents. Ms. Barber also performs internal compliance audits to assist employers in identifying vulnerabilities and establishing procedures to prevent potential liability. Ms. Barber presents on various employment related topics and creates workplace trainings to meet an employer’s specific needs. She is an experienced workplace investigator of harassment and discrimination claims and represents employers in defending against charges brought by the Equal Employment Opportunity Commission and the California Department of Fair Employment and Housing.