As 2019 quickly approaches, a number of new California laws impacting employers are set to take effect. As a response to the #MeToo and #TimesUp movements, a number of these new laws address sexual harassment in the workplace, or relax laws that previously would have prevented the disclosure of facts relating to claims of sexual assault, sexual harassment or sex discrimination. Below is a summary of many of the more significant new and widely applicable laws.
SB 1300 – Expanded Employer Liability Under FEHA and Less-Likely Summary Judgment Favoring Employers
It will now be more difficult for employers to resolve harassment claims brought under the Fair Employment and Housing Act (FEHA) by summary judgment — as SB 1300 specifically adds a legislative declaration that harassment claims are rarely appropriate for resolution on summary judgment.
It explicitly rejects long-followed federal court decisions on harassment, lowers the burden of proof to establish harassment, and provides that a single incident of harassment is sufficient to create a triable issue as to whether a hostile work environment existed. Further, this legislation makes it unlawful “for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment” to “require an employee to sign a release of claim or right.”
However, these restrictions do not apply to a negotiated settlement agreement to resolve an underlying claim, if such agreement is voluntary and involves valuable consideration. Finally, this bill makes employers liable for any kind of unlawful harassment by non-employees where the employer knew or should have known of the harassment and failed to take appropriate remedial action.
SB 820 – Prohibition on Provisions Forbidding Disclosure of Sexual Harassment Claims
For years, employers have resolved disputed sexual harassment claims by entering into settlement agreements that provide that, in exchange for monetary consideration, the settling employee may not disclose facts about the disputed claims. SB 820, known as the Stand Together Against Non-Disclosure Act, takes effect Jan. 1, 2019. It prohibits settlement provisions preventing the disclosure of factual information relating to claims of sexual assault, sexual harassment, sex discrimination or resulting retaliation claims. Notably, this law does not prohibit a provision that precludes the disclosure of the settlement amount, nor a provision preventing the disclosure of the claimant’s identity if the claimant wants to maintain privacy.
AB 3109 – Right to Testify Regarding Sexual Harassment
AB 3109 enacts Civil Code Section 1670.11. It nullifies any term in a contract or settlement agreement that prevents or otherwise waives a party’s right to testify in an administrative, legislative or judicial proceeding about alleged criminal conduct or sexual harassment, if said request for testimony is pursuant to a court order, subpoena or written request from an administrative agency or the legislature.
AB 2770 – Disclosure of Harassment Claims to Prospective Employers
AB 2770 expands the privilege afforded to employers under Civil Code 47(c) with respect to communications about former employees. Per the amendment, and only if an employer so chooses, the current or former employer can answer a prospective employer’s question as to whether it would rehire a current or former employee, and whether the decision not to rehire that employee is based on the employer’s determination that the former employee engaged in sexual harassment. If such a response is provided, the protections apply only if the response is provided “without malice” and is based upon “credible evidence and communications between the employer and interested persons” regarding that harassment complaint.
SB 1343 – Expanded Sexual Harassment Training Requirements
Existing law requires employers with 50 or more employees to provide each supervisor with two hours of sexual harassment training every two years. The new law amends Government Code Section 12950 to apply to each employer with just five or more employees. This requires each such employer to provide a minimum of two hours of training to supervisory employees and one hour of training to non-supervisory employees by Jan. 1, 2020, and once every two years thereafter.
AB 1619 – Extension of Sexual Assault Statute of Limitations
AB 1619 adds Section 340.16 to the Code of Civil Procedure. It increases the statute of limitations for filing a civil action for actual or attempted sexual assault, to 10 years after the alleged assault or three years after the employee discovered or reasonably should have discovered any injury or illness due to the actual or attempted sexual assault, whichever is later. Previously, a three-year limitations period applied to all such claims.
SB 826 – Women on Boards of Directors
This bill adds provisions to the Corporations Code requiring that every publicly held corporation with its headquarters in California have at least one female director on its board of directors for a portion of the calendar year. By the end of 2021, each of these same corporations must have at least two female directors on any five-person board and three female directors on any board with six or more directors. Noncompliant corporations face initial fines of $100,000 and subsequent fines of $300,000.
AB 1976 – Lactation Accommodation Clarifications
AB 1976 amends the Labor Code Section 1031 lactation accommodation requirements and requires employers to make reasonable efforts to provide employees with a room or location other than a bathroom, near the employee’s work area, for lactation purposes. The new law specifies that this location can be temporary if: (1) the employer is unable to provide a permanent area 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.
SB 1123 – Expansion of Paid Family Leave for Active Duty
California is expanding its paid family leave program as it relates to active military duty. Currently, the program allows partial wage replacement to employees who take leave for purposes such as caring for a seriously ill family member or to bond with a minor child following a birth or adoption. Effective Jan. 1, 2021, Unemployment Insurance Code 3301 takes effect, extending paid family leave benefits to employees who take time off for a qualifying exigency relating to covered active duty, or a call to covered active duty, of a spouse, domestic partner, parent or child.
SB 1412 – Narrower Exception for Criminal History Inquiries
SB 1412 amends Section 432.7 of the California Labor Code, which permits an employer to conduct a criminal history inquiry when making employment decisions where federal or state law requires such an inquiry. The bill narrows this exception to instances where an employer is legally required to inquire into a “particular conviction” or legally prohibited from hiring an applicant with such a conviction. The law defines a “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 2282 – Clarification of Salary History Prohibition Questions
AB 2282 addresses vagaries in AB 168, which went into effect last year and prohibits employers from seeking or relying on salary history information from an “applicant.” The bill amends Labor Code Sections 432.3 and 1197.5 to define “applicant” as someone not currently employed with the employer. It also defines “pay scale” to mean a salary or hourly range of pay, and defines a “reasonable request” for a pay scale as one made after an applicant has completed an initial interview with an employer.
SB 1252 – Employers Must Provide a Copy of Payroll Records
This law amends Labor Code Section 226, which previously permitted employers to allow inspection or provide a copy of payroll records to an employee within 21 days of such a request. The amended law instructs the employer to provide a copy of the records upon request, rather than requiring the employee to make a copy, but still permits the employer to charge the employee “the actual cost of reproduction.”
AB 3247 – Amendment to California Arbitration Act
The California Arbitration Act (CAA) currently provides that, when petitioned by a party to an arbitration agreement, a court shall order arbitration if a written arbitration agreement exists and a party to the agreement refuses to arbitrate, unless the court determines that grounds exist for the revocation of the agreement. AB 3247 amends the CAA to replace the word “revocation” with the word “rescission,” opening the door to future efforts to rescind based on grounds such as mistake, fraud, undue influence and lack of consideration. However, this amendment would apply only to the rare arbitration agreements not governed by the Federal Arbitration Act.
AB 2605 – On-Duty Rest Periods for Safety-Sensitive Petroleum Workers
This bill enacts Labor Code Section 226.75, which provides that union-represented employees in safety-sensitive positions at a petroleum facility can be required, without violation of the law, to carry a communication device during rest periods and/or to remain on premises in case of emergency. However, if such an employee must affirmatively interrupt his or her rest period to address an emergency, another rest period must be reasonably and promptly authorized and permitted post-emergency. If a rest period cannot be provided following the emergency, the employee must receive a payment of one hour of pay at the employee’s regular rate of pay for the missed rest period.
SB 1402 – Liability for Customers Contracting With Port Trucking Companies
SB 1402 requires the Division of Labor Standards Enforcement to compose a “blacklist” of port trucking companies with unsatisfied judgments, and makes certain customers that contract with these carriers jointly and severally liable for unpaid wages and other damages owed by the trucking company for any given workweek during which the customer used the trucking company’s services. SB 1402 imposes these customer notice requirements on port trucking companies: (1) prior to providing services to a customer, written notice of any unsatisfied final judgments must be given; and (2) within 30 days of a final entry of judgment for specified claims, notice of the judgment must be given to customers.
For assistance or advice on implementing or updating employment practices to comply with these new laws, or for questions related to this article, please contact the authors, your McGuireWoods contact or a member of the firm’s labor and employment group.