New Year Brings New Employment Laws

Governor Jerry Brown signed several key employment law bills that businesses need to be aware of for the coming year. In 2018, the Legislature introduced more than 2,600 bills including 1,217 bills that made it to the governor’s desk. Of those approved by the Legislature, Governor Brown signed 1,016 into law. CalChamber together with business organizations including NOCC tracked 213 California bills, stopping 115 opposed bills (including 29 job killers), and backing 27 bills that were signed into law. Strong advocacy by the CalChamber, members, local chambers of commerce and allied employers prevented all but one job killer bill from passing the Legislature.

Of note, the Governor vetoed AB 3080, which would have banned settlement agreements for labor and employment claims, as well as arbitration agreements made as a condition of employment. If passed, AB 3080 would have significantly expanded employment litigation, delayed resolution of claims and increased costs on employers.

The new regulations, however, will require California employers to update their employment notice postings. NOCC is offering a discount on postings for orders placed through December 15, 2018.

Here are some of the new laws taking effect in January 2019 that employers should anticipate:

LEAVES OF ABSENCE AND BENEFITS

Paid Family Leave (SB 1123):

The Paid Family Leave wage replacement program will be expanded beginning Jan. 1, 2021, to any employee who takes time off to attend to situations related to the covered active duty status of the employee’s spouse, registered domestic partner, child or parent who is a member of the US Armed Forces. Known as “qualifying exigencies,” these situations could include time off for official ceremonies, briefings, changes to childcare arrangements, financial or legal arrangements, counseling or spending time with the covered service member during rest and recuperation leave, among others.

Lactation Accommodation (AB 1976):

Under current state law, an employer must provide a location other than a toilet stall for an employee to express breast milk. The location must also be private and in close proximity to the employee’s work area. This law requires that the employer provide a location other than a “bathroom,” rather than a “toilet stall.” As a result, employers cannot designate a bathroom as a designated space to express breast milk.

HIRING PRACTICES

Salary History (AB 2282):

This new law clears up ambiguities in last year’s AB 168, the ban on salary history inquiries and the requirement to provide pay scales to applicants. The Labor Code will now specify that employers may inquire about an applicant’s salary expectations applicable to the position to which a candidate is applying. External applicants (not current employees) are entitled to a pay scale upon request, but only after completing an initial interview.

Criminal Background Checks (SB1412):

Current law generally prohibits employers from considering judicially sealed or expunged convictions when conducting a criminal background check on a job applicant. However, employers hiring for certain sensitive positions cannot legally hire applicants with specific convictions, such as where a bank teller has a conviction related to a bank robbery, even ifsealed or expunged. SB 1412 narrows an employer’s ability

to consider sealed or expunged convictions to only thosecircumstances where a particular conviction would legallyprohibit someone from holding that job.

DISCRIMINATION, HARASSMENT AND RETALIATION PROTECTIONS:

Defamation Protection (AB 2770):

Under this bill, employers and victims of sexual harassment will be protected from liability for defamation lawsuits for injury to an alleged harasser’s reputation after a complaint of sexual harassment has been made. An employee who makes credible reports of harassment will be shielded from liability, as will an employer who communicates with interested parties such as victims and witnesses. When contacted for a job reference about a current or former employee, an employer will now be permitted to reveal whether the individual is not eligible for rehire because the employer determined that he/she engaged in sexual harassment.

Confidentiality Clauses in Settlement Agreements (SB 820):

This new law expands the types of cases in which socalled “secret settlements” are restricted. It prohibits any settlement agreement in a case where sexual harassment, assault or discrimination has been alleged from including a confidentiality provision that prohibits disclosure of information regarding the claim, except with regard to the claimant’s identity.

Sexual Harassment (SB 1300):

In this sweeping new law, the legislature declared its intent to create a much lower bar for employees to bring harassment lawsuits, and limited the ability of employers to obtain summary judgment in such cases.

Sexual Harassment Training (SB 1343):

Current law requires employers with 50 or more employees to provide supervisors with two hours of sexual harassment training within six months of hire or promotion. Beginning January 1, 2020, all employers with five or more employees will be required to provide two hours of sexual harassment training to supervisors and one hour to nonsupervisory

employees within six months of hire or promotion, and every two years after that. The Department of Fair Employment and Housing will be required to provide an online training course that meets the new legal requirements.

Waivers of Right To Testify (AB 3109):

Under this new law, any provision in a contract or settlement agreement will be unenforceable if it prohibits a party to the contract from testifying about criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding. AB 3109 covers only testimony that is required, such as by subpoena or court order, or in response to a written request in an administrative or legislative hearing.

Gender Representation on Boards of Directors (SB 826):

Any publicly held corporation with principal executive offices in California will now be required to place at least one female director on its board by December 31, 2019. A corporation may increase the number of directors on its board to comply. Depending on the board’s size, up to three female members may be required by the end of 2021. Significant financial penalties apply if a company fails to achieve the required number of female directors.

In his signing letter for SB 826, Governor Brown noted that there have been “serious legal concerns” raised about its mandate. Such a quota likely violates the United States Constitution, California’s Constitution, California’s Civil Rights Act and the internal affairs doctrine, which places companies headquartered in California in a legal predicament.

Source: CalChamber