by Jaimee K. Wellerstein, Esq.
As we ring in the new year, California employers should prepare for a number of new laws. Many of the new laws stem from the ever-growing #MeToo movement and bolster harassment protection for employees, while others resolve prior ambiguities in recently-passed laws.
SEXUAL HARASSMENT PREVENTION
- Sexual Harassment Training (SB 1343): California employers with at least 5 employees must provide at least one (1) hour of sexual harassment prevention training and education to all supervisory employees and non-supervisory employees in California by January 1, 2020, and once every two years thereafter. Temporary and seasonal employees must be trained within 30 days of hire or 100 hours worked, whichever is earlier. The Department of Fair Employment and Housing (DFEH) must develop training materials for employers to use (or employers can use their own training program).
Employers with at least 5 employees must provide sexual harassment training to supervisors and non-supervisory employees by January 1, 2020!
Contact your attorneys at Bradley & Gmelich LLP to schedule your sexual harassment training now!
Disclosure of Sexual Harassment (AB 3109): Any provision of an agreement or contract precluding a party from testifying about sexual harassment or criminal conduct in an administrative, legislative, or judicial proceeding will be void and unenforceable.
- Settlement of Sexual Harassment Claims (SB 820): In cases involving sexual harassment allegations, settlement agreements entered into after January 1, 2019 may not prevent disclosure of factual information pertaining to a claim of sexual assault, harassment, gender discrimination, or related retaliation. However, the settlement amount and claimant’s identity may be precluded from disclosure.
- Sexual Harassment/FEHA Amendments (SB 1300): Provides amendments to the Fair Employment and Housing Act (FEHA), such as prohibiting employers from requiring employees to release a FEHA claim in exchange for a bonus, raise, or as a condition of employment or continued employment to:
- agree not to sue or bring a claim against the employer under FEHA; or
- sign a non-disparagement agreement preventing the employee from disclosing information about unlawful acts in the workplace, including but not limited to sexual harassment.
These prohibitions do not apply to negotiated settlements or severance agreements.
- Sexual Assault Statute of Limitations (AB 1619): The statute of limitations for filing a civil action for sexual assault has been increased to 10 years after the alleged assault, or three years after the plaintiff reasonably discovered an injury as a result of the assault, whichever is later.
- Gender Composition of Boards of Directors (SB 826): Corporations with principal executive offices in California are now required to have at least one female director on their boards by the end of 2019. The ratio of male to female directors also increases, depending on the headcount of the board of directors, through the end of 2021.
LEAVES OF ABSENCE AND BENEFITS
- Paid Family Leave (SB 1123): Employees will be allowed to receive wage-replacement benefits from the Paid Family Leave program if taking time off for activities related to the covered activity duty status of their spouse, domestic partner, parent, or child being called to active duty, beginning January 1, 2021.
- Lactation Accommodation (AB 1976): Employers must provide an area other than a bathroom for employees to express breast milk. The location should generally be permanent, but there are exceptions. The new law provides an undue hardship exemption for employers under limited circumstances.
- Salary History (AB 2282): Last year, the law was changed to ban inquiries about salary history and requiring employers to provide pay scales to applicants when requested. This year, the Labor Code has been amended to clarify that (1) employers may inquire about an applicant’s salary expectations for the position being applied for; (2) only new applicants are entitled to receive a pay scale upon request, and only after completing an initial interview; and (3) the pay scale provided need only include salary or hourly wage ranges.
- Criminal History Inquiries (SB 1412): Clarifying last year’s “Ban the Box” legislature, SB 1412 amends Labor Code Section 432.7 by confirming that employers are not prohibited from seeking or receiving an applicant’s criminal conviction history, including those convictions that have been judicially sealed or expunged, if the employer is required by state, federal, or local law to conduct criminal background checks for employment purposes. However, SB 1412 limits the ability of an employer to gather such criminal conviction history only to those “particular convictions” that are either required by state or federal law to be reviewed or that would preclude the applicant from holding the position sought by state or federal law.
WAGE & HOUR
- Minimum Wage (SB 3): A law that actually went into effect in 2016, SB 3 mandates that on January 1, 2019 the California minimum wage increases to $11 per hour for employers with 25 or fewer employees, and $12 per hour for employers with 26 or more employees. Local minimum wages may be increasing, as well. For example, in the City of Los Angeles and unincorporated areas of Los Angeles County the minimum wage will increase on July 1, 2019 to $14.25 for employers of 26 or more employees, and $13.25 for employers of 25 or fewer employees. On January 1, 2019, the minimum wage in the City of San Diego increased to $12 per hour for all employers, and the minimum wage in the City of Oakland increased to $13.80 per hour. Many other cities are increasing, as well. California employers should check on each jurisdiction in which they have employees to verify determine whether a higher minimum wage than the state minimum applies.
As of January 1, 2019, the California minimum wage increased to $11 per hour for
employers with 25 or fewer employees, and $12 per hour for employers
with 26 or more employees!
- Payroll Records Copies (SB 1252): If requested by an employee, the employer must provide copies of payroll records. Previously, employers only needed to make the records available to employees.
- PAGA Review for Unionized Construction Employers (AB 1654): Workers covered by a valid collective bargaining agreement in the construction industry will not be covered by the Private Attorneys General Act (PAGA) when certain conditions are met.
Is your company ready to come into compliance for 2019? Your attorneys at Bradley & Gmelich can help. Contact us for help with employment policies and manuals, employment law audits, sexual harassment training, wage and hour training, or any other pressing employment law issue.
Jaimee K. Wellerstein is a partner at Bradley & Gmelich LLP and an experienced litigator with a broad spectrum of experience upon which to draw. As the head of the firm’s employment team, she concentrates her practice in representing employers in all aspects of employment law, including defense of wage and hour class actions, discrimination, retaliation, harassment, and wrongful discharge lawsuits. She also provides employment counseling and training in all of these areas. Ms. Wellerstein routinely represents employers in federal and state courts and in arbitration proceedings throughout the state, as well as at administrative proceedings before the Equal Employment Opportunity Commission, the California Department of Labor Standards Enforcement, the United States Department of Labor, and other federal and state agencies.
As a civil litigator, Ms. Wellerstein has represented clients from Fortune 500 companies to governmental agencies to small businesses throughout each stage of litigation. In addition to her employment law experience, she has honed her expertise in cases involving general tort litigation, premises and products liability, security guard litigation, public entity work, and contract disputes.