Fall is upon us and with that comes a deluge of new employment laws. (Think “sex” and you’ll cover many of them!) Robin Largent, partner at CDF, shares below the highlights of some of the key employment laws that will kick in on January 1, 2019. If you’re our retained client, in the next few months you’ll receive more detailed information, what to do to implement these, and employee handbook updates. Stand by for more. In the meantime, here’s a sample of the highlights from counsel.

September 30, 2018  was the last day for Governor Brown to sign or veto bills this legislative session.  Below is the list of key employment-related bills that have been signed into law, along with a list of bills that were vetoed.  All new laws take effect January 1, 2019 unless noted below. 

Bills Signed Into Law

AB 3109 (Disclosure of Sexual Harassment):  This bill makes void and unenforceable any provision in a contract or settlement agreement that prevents a party to the contract from testifying about criminal conduct or sexual harassment in an administrative, legislative, or judicial proceeding. 

SB 224 (Sexual Harassment):  This bill amends section 51.9 of the Civil Code to expand the types of relationships that can be subject to a claim for sexual harassment to include lobbyists, elected officials, directors, producers, and investors.  This statute generally applies to work relationships where one person holds himself out as being able to help someone establish a business or professional relationship directly or with a third party.  

SB 820 (Settlement of Sexual Harassment Claims):  This new law prohibits provisions in settlement agreements entered into after January 1, 2019 that prevent disclosure of factual information pertaining to claims of sexual assault, sexual harassment, gender discrimination or related retaliation that have been filed in court or before an administrative agency.  The new law does not prohibit a provision that prevents the parties to the agreement from disclosing the amount of the settlement.  Additionally, at the claimant’ request, the settlement agreement may include a provision that limits the disclosure of the claimant’s identity or of facts that would lead to the discovery of the claimant’s identity.

SB 1300 (FEHA Amendments):  This bill amends FEHA in a number of respects, including (1) to add a provision making it an unlawful practice for an employer to require an employee to release a FEHA claim in exchange for a bonus, raise, or continued employment; (2) to make employers liable for any kind of unlawful harassment by non-employees (not just for sexual harassment as under existing law) where the employer knew or should have known of the harassment and failed to take appropriate remedial action; and (3) to add certain statements of legislative intent to make it harder for employers to prevail on harassment claims (e.g. a legislative declaration that harassment cases are rarely appropriate for resolution on summary judgment, and a declaration that a single act of harassment may suffice to support a finding of a hostile work environment).

SB 1343 (Sexual Harassment Training):  Existing law requires employers with 50 or more employees to provide supervisors with sexual harassment training.  This new law expands the training requirement to employers with 5 or more employees and requires that employers provide at least 2 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.  It also requires the DFEH to develop and post training materials for employers to use for these purposes.

AB 1619 (Sexual Assault; Statute of Limitations):  This new law greatly enlarges the statute of limitations for filing a civil action for damages for sexual assault to 10 years after the alleged assault or 3 years after the plaintiff discovered or reasonably discovered injury as a result of the assault, whichever is later.

SB 826 (Gender Composition of Boards of Directors):  This new law provides for mandatory inclusion of women on corporate boards of directors.  Specifically, by the end of 2019, publicly held domestic or foreign corporations with principal executive offices in California must have a minimum of one female director on its board, and by the end of 2021, these corporations must comply with the following: (1) If its number of directors is six or more, the corporation shall have a minimum of three female directors; (2) If its number of directors is five, the corporation shall have a minimum of two female directors; (3) If its number of directors is four or fewer, the corporation shall have a minimum of one female director.  The new law also requires the Secretary of State to publish certain statistical information in this regard on its website.

SB 1976 (Lactation Accommodation):  This new law makes changes to existing lactation accommodation law.  The existing law requires employers to make reasonable efforts to provide a location other than a toilet stall to be used for lactation.  The new law specifies that the location should be something other than a bathroom and further specifies that it generally should be a permanent location but that it can be a temporary location if (1) the 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.  If an employer can prove that it is an undue hardship to comply with these requirements, the employer may be able to provide a location (including a bathroom) other than a toilet stall for the employee to use for lactation purposes.

AB 1654 (PAGA Relief for Unionized Construction Employers):  This new law provides that unionized workers in the construction industry are not covered by PAGA (i.e. they cannot bring PAGA claims), provided that the CBA (1) is entered into prior to January 1, 2025; (2) provides for the wages, hours of work, and working conditions of employees, premium wage rates for all overtime hours worked, and for the employee to receive a regular hourly pay rate of not less than 30 percent more than the state minimum wage rate; (3) prohibits all of the violations of the Labor Code that normally would be redressable under PAGA; (4) provides for a grievance and binding arbitration procedure to redress those violations and authorizes the arbitrator to award any and all remedies otherwise available under the Labor Code (except PAGA remedies); and (5) expressly waives PAGA rights. 

AB 2605 (On-call rest breaks/Petroleum Industry):  This new law was enacted as urgency legislation and took effect immediately. The new law provides that unionized workers in safety sensitive positions in the petroleum industry may be required to remain on call during rest breaks.  This bill effectively provides an industry-specific exception to the California Supreme Court’s recent unfavorable ruling in Augustus v. ABM Security, which held that employees cannot be required to remain on call during rest breaks.

SB 1402 (Port drayage workers):  This new law provides that customers who use the services of a port drayage motor carrier are jointly and severally liable with the motor carrier for nonpayment of wages, expenses, damages, and penalties.

AB 2034 (Human Trafficking):  This new law requires employers who operate an intercity passenger rail, light rail, or bus station to provide by January 1, 2021 at least 20 minutes of training on human trafficking awareness to employees who are likely to come into contact with human trafficking victims.

SB 970 (Human Trafficking):  This new law amends FEHA to require hotel and motel employers, by January 1, 2020, to provide at least 20 minutes of training on human trafficking awareness to employees who are likely to come into contact with victims of human trafficking.  These employees include reception employees, housekeeping employees, bell desk employees, and other employees who regularly interact with customers.  The new law requires covered employers to provide such training to covered employees within 6 months of hire and once every two years thereafter.

SB 1123 (Paid Family Leave Uses):  California has a paid family leave program that provides partial wage replacement to employees who take leaves of absence for specified purposes.  This new law expands the program to provide paid family leave benefits beginning January 1, 2021 to employees who take time off for reasons associated with being called to active duty or a spouse, domestic partner, parent, or child being called to active duty.

SB 1252 (Copy of Payroll Records):  Existing law already requires that employees have a right to inspect or copy their payroll records and that they must be allowed to do so within 21 days of such a request.  This new law clarifies that if an employee requests a copy of the records, the employer must provide the copies (as opposed to requiring employees to copy the records themselves).

AB 1565 (Contractor Liability):  This new law took effect immediately as urgency legislation. It clarifies a new law enacted last year making certain direct contractors performing work in the state liable for unpaid wages by subcontractors.  The amendments to the law provide 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, etc.

SB 1412 (Criminal History Inquiries):  This bill amends Labor Code section 432.7, which limits employers’ ability to conduct criminal history inquiries and to use criminal history information in employment decisions.  Existing law makes an exception for employers who are required by federal or state law to inquire into an applicant’s or employee’s criminal history.  The amendment is intended to tighten the exception to apply only where an employer is required by law to inquire into a “particular conviction” or where an employer cannot by law hire someone with a “particular conviction.”  to make clear that employers may only consider “particular convictions” when assessing criminal history.  “Particular conviction” is defined only to mean “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.” 

Vetoed Bills

For those who are interested, the Governor somewhat surprisingly vetoed several employment-related bills, some of which were really bad for employers, including the following:

AB 3080 (Arbitration Agreements):  This bill would have made it unlawful for an employer to require employees to agree to arbitrate claims arising under the Labor Code (claims for unpaid wages/missed meal and rest breaks, etc.) or FEHA (claims for discrimination/harassment, etc.).  It also would have prohibited employers from requiring workers, as a condition of employment or any contract, to refrain from disclosing any instance of sexual harassment.

AB 1867 (Records Retention):  This bill would have required employers with 50 or more employees to retain records of any complaint of sexual harassment for at least 5 years following the last day of employment of the complaining employee or any alleged harasser, whichever is later.

AB 1870 (FEHA Statute of Limitations):  This bill would have enlarged the statute of limitations for an employee to file an administrative complaint of discrimination/harassment/retaliation under FEHA with the Department of Fair Employment and Housing.  Under existing law, an administrative complaint must be filed with the DFEH within one year of the unlawful employment practice.  Under this bill, an employee would have three years to file an administrative complaint (and an additional one year after receiving a right to sue notice from the DFEH to file a lawsuit). 

AB 2079 (Sexual Harassment Training/Janitors):  This bill would have imposed more stringent and burdensome requirements for sexual violence and harassment training for janitorial services employers.

AB 2496 (Janitorial workers):  This bill would have created a rebuttable presumption that janitorial workers are employees (as opposed to independent contractors).

AB 3081 (Joint Liability for Harassment):  This bill would have made a client “employer” jointly liable for harassment of an employee provided by a labor contractor.  It also would have amended Labor Code 230 to provide for protected time off for victims of sexual harassment.  It would also have created a rebuttable presumption of retaliation for any adverse action taken against an employee within 30 days of being notified that the employee was the victim of harassment.

SB 937 (Lactation Accommodation):  This bill would have added specificity to lactation accommodation requirements and appears to be modeled on the local San Francisco lactation accommodation ordinance.  This bill provided that a lactation room or location shall not be a bathroom and shall be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is lactating.  It also would have required that a lactation room be:  (1) safe, clean, and free of toxic or hazardous materials; (2) contain a surface to place a breast pump and personal items; (3) contain a place to sit; and (4) have access to electricity or alternative devices needed to operate an electric or battery-powered breast pump.  The employer would also have to provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace. If a refrigerator could not be provided, an employer would have to provide another cooling device suitable for storing milk, such as an employer-provided cooler.  An employer with fewer than 50 employees could establish an exemption from any requirement of this section if the employer could show that the requirement would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business.  Importantly, this bill would have provided that the failure to provide adequate break time or a suitable space will be deemed a failure to provide a rest break under Labor Code section 226.7.  Finally, the bill would have required employers to develop a lactation accommodation policy and a process for submitting and responding to lactation accommodation requests. 

AB 2732 (Immigration Documents):  This bill would have added section 1019.3 to the Labor Code and made it unlawful for an employer to knowingly destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration document, or any other actual or purported government identification document, of another person in the course of committing, or with the intent to commit, trafficking, peonage, slavery, involuntary servitude, or a coercive labor practice.  It also would have imposed related posting requirements.

To view the full text of each bill that was signed into law or vetoed, click here to search by bill number.