Q: As I sing auld lang syne and close my calendar year at my business, I look back fondly at all the things 2018 brought me and my business. Those fond memories do not include the increase in minimum wage and restrictions on criminal history inquiries in employee applications. As I prepare to make more memories in 2019, are there any new laws relevant to me as an employer? Tell me I will look fondly upon them!
A: Fondly or not, you better look closely at all the new laws 2019 brings. While the Federal Government might be shutdown, the state legislature has been hard at work creating or clarifying employee protections. Riding the wave of the #metoo movement, California legislatures introduced a plethora of new sexual harassment-related bills this year. Below is a summary of some of the employment-related laws that took effect on January 1, 2019:
SB 224 – Sexual Harassment – Civil Code § 51.9, Government Code §§ 12930, 12948
The first of the #metoo movement bills, this amends California Civil Code Section 51.9 to expand the types of relationships subject to a claim for sexual harassment to include lobbyists, elected officials, directors, producers, and investors.
SB 820 – Settlement of Sexual Harassment Claims – Code of Civil Procedure § 1001
This new law prohibits provisions in settlement agreements entered into after January 1, 2019 that prevent disclosure of facts relating to sexual assault, sexual harassment, gender discrimination or related retaliation claims that have been filed in court or before an administrative agency. However, this new law does not prohibit restriction on disclosing settlement amount or the claimant’s identity.
SB 1300 – FEHA Amendments – Government Code §§ 12923, 12940, 12950.2, 12964.5, and 12965
This bill amends the Fair Employment and Housing Act as follows: (1) to make employers liable for any kind of unlawful harassment by non-employees (not just for sexual harassment) where employer knew or should have known of the harassment and failed to take appropriate remedial action; and (2) amending the legislative intent to indicate that harassment is rarely appropriate for resolution on summary judgement (making it harder for employers to prevail of sexual harassment claims).
SB 1343 – Sexual Harassment Training – Government Code §§ 12950, 12950.1
This new law expands sexual harassment training requirements to employers with 5 or more employees and requires that employers provide at least two hours of training to supervisory employees and at least one hour of training to non-supervisory employees by January 1, 2020 and once every two years thereafter.
AB 1619 – Statute of Limitations Sexual Assault – Code of Civil Procedure § 340.16
This new law increased the statute of limitations for filing a civil action for sexual assault to 10 years after the alleged assault or 3 years after discovered or reasonably discovered injury as a result of the assault, whichever is later.
AB 2770 – Defamation – Civil Code § 47
This bill codifies California defamation case law to clarify that (1) employees who report sexual harassment to their employer are not liable for any resulting injury to the alleged harasser’s reputation, so long as the communication is based on credible evidence and without malice; (2) communications between employers and anyone with an interest in a sexual harassment complaint are not liable for resulting damages to alleged harasser’s reputation so long as communication is made without malice; and, (3) former employers are not liable for any resulting injury to a former employee’s reputation if, in response to inquiries from prospective employers, former employers indicate that they would not rehire the former employee based on a determination that the former employee engaged in sexual harassment, so long as the statement was made without malice.
AB 1976 – Lactation Accommodation – Labor Code § 1031
This bill amends existing law to require employers to make reasonable efforts to provide a permanent location, other than a toilet stall to be used for lactation, unless an employer can prove that it is an undue hardship to comply with these requirements. The location may be temporary if the following requirements are met: (1) employer is unable to provide a permanent location due to operational, financial, or space limitations; (2) the temporary location is private and free from intrusion while being used for lactation purposes; and (3) the temporary location is not used for other purposes while being used for lactation. The new law also provides that an agricultural employer may comply by allowing an employee to use the air-conditioned cab of a tractor or truck.
SB 1252 – Copy of Payroll Records – Labor Code § 226
This bill requires that if an employee requests a copy of his or her payroll records, the employer must provide the copies within 21 days (as opposed to requiring the employer simply make the records available for the employee’s inspection).
AB 1565 – Contractor Liability – Labor Code § 218.7
This bill amends existing law making certain direct contractors liable for unpaid wages of subcontractors. The amendment provides requirements that must be met in order for a direct contractor to withhold payments to a subcontractor for “disputed sums.” In order to withhold payment, the contractor must specify in its contract with a subcontractor all items of information that will be requested of the subcontractor, such as payroll records and other information related to hours worked.
In addition to the above summary, click the link below to read about the following bills which also relate to employment: AB 3109 (Testifying/Disclosure of Sexual Harassment); SB 954 (Mediation, Confidentiality, Disclosure); SB 826 (Gender Composition of Boards of Directors); SB 1123 (Paid Family leave Uses); AB 2012 (School and Community College Employees: Parental Leave); AB 2605 (On-Call Rest Breaks/Petroleum Industry); AB 2610 (Meal Periods- Commercial Drivers for Feed Manufacturers); AB 3082 (Sexual Harassment – In-Home Supportive Services); AB 2455 (Home Care Aid Registry); SB 1412 (Criminal History Inquiries); AB 2282 (Salary History Information); AB 2034/ SB 970 (Human Trafficking Training); AB 1654 (PAGA Relief for Unionized Construction Employers); and SB 785 (Disclosure of Immigration Status in Open Court) http://leginfo.legislature.ca.gov/.
Also, while not a new law, employers must remember that minimum wage again has increased from $11 to $12 per hour for employers with 26 or more employees, and from $10.50 to $11 per hour for employers with 25 or less employees.
While 2018’s closure may bring about the end of trends like the flossing dance craze, unfortunately, it will not be the end of new employment laws. New year, same California legislators working hard to impact employers. If you have questions related to these new laws, Baker Manock & Jensen’s employment attorneys would be happy to assist. Happy New Year!
This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. The hypothetical question is posed to illustrate a point and does not contemplate all potential legal considerations This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.