Legal Alerts Jan 15, 2019

#MeToo Impact and Other Legislative Changes

California’s 2019 Labor & Employment Update: Part I

#MeToo Impact and Other Legislative Changes

As the #MeToo Movement shed light on the pervasiveness of sexual harassment and assault across all industries — from entertainment to government and beyond — the California Legislature further expanded laws protecting employees from, and requiring increased training on, sexual harassment. 
 
In addition, state lawmakers also tackled other labor and employment issues, including increasing minimum wage and expanding family leave laws. 
 
In this two-part annual series, Best Best & Krieger LLP takes a comprehensive look at the new laws and recent court decisions impacting public and private employers and employees. All laws became effective Jan. 1 unless otherwise noted.
 
Protections Against Harassment of All Forms Expanded

SB 224: Personal rights: civil liability and enforcement
Prior to SB 224, California law prohibited certain professionals, such as doctors, lawyers, real estate professionals, social workers and accountants, from engaging in sexual harassment and abusing their professional relationships with patients and clients.
 
This law expands this list to include elected officials, lobbyists, investors, producers, directors and those who hold themselves out as being able to help establish a business, service or professional relationship with a client and where a claimant can show there is inability to easily terminate the relationship.
 
While the California Fair Employment and Housing Act already makes it an unlawful practice for a person to deny and/or aid, incite or conspire in the denial of certain civil rights, this law amends the Act to prohibit these practices based on sexual harassment actions as well.
 
The law also establishes the Department of Fair Employment and Housing as the agency responsible for receiving, investigating, conciliating, mediating and prosecuting sexual harassment claims.
 
SB 1300: Unlawful employment practices: discrimination and harassment
SB 1300 makes numerous changes to FEHA relating to workplace harassment claims. It also declares a legislative intent that harassment claims under FEHA can be supported by a limited number of allegedly harassing incidents and should not be resolved on summary judgment.
 
Under FEHA, it is unlawful for employers, labor organizations, employment agencies, apprenticeship training programs and programs leading to employment to engage in the harassment of a person. FEHA also holds that employers may be held responsible for the sexual harassment acts of nonemployees, if the employer or supervisors knew or should have known of the issue and failed to take corrective action.
 
SB 1300 expands employer liability for the acts of nonemployees to include all unlawful harassment activity — meaning harassment based on other protected characteristics, including, but not limited to: an employee’s race, religious creed, color, national origin and ancestry.
 
The new law also prohibits employers from requiring an employee, in exchange for a raise, bonus or as a condition of employment to:

  • Agree not to sue or bring claim under FEHA
  • Sign a non-disparagement agreement preventing an employee from disclosing information about unlawful acts in workplace, including, but not limited, to sexual harassment

 
Under SB 1300, employers are authorized to provide employees with bystander intervention training to recognize potentially problematic behaviors and motivate bystanders to take action.
 
It also prohibits prevailing defendants from being awarded fees and costs unless the court finds the action was frivolous, unreasonable or groundless.
 
Settlement Silencing Provisions No Longer Permitted

SB 820: Settlement agreements: confidentiality
Sweeping confidentiality provisions that can silence victims and restrict disclosure of factual information are no longer permitted in sexual harassment agreements under SB 820.
 
The law pertains to civil or administrative claims of sexual assault, sexual harassment, workplace harassment, failure to prevent workplace harassment, gender discrimination, retaliation for reporting harassment and discrimination based on sex. Settlements entered into on or after Jan. 1 that include confidentiality provisions regarding these types of claims are now void under the law.
 
SB 820 does include an exception allowing a claimant’s identity and all facts that could lead to the discovery of their identity to be left confidential if the provision is included in the settlement at the claimant’s request. This exception does not apply if a party is a government agency or public official.
 
It does not prohibit provisions that prevent the disclosure of a settlement amount.
 
AB 3109: Contracts: waiver of rights of petition or free speech
Any provision in a contract or settlement agreement is unenforceable under this law if it prohibits testimony about alleged criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding.
 
The law only pertains to testimony required by a subpoena, court order or in response to a written request in an administrative or legislative hearing.
 
AB 2770: Privileged communications: communications by former employer: sexual harassment
With the passage of AB 2770, state lawmakers designated certain communications concerning sexual harassment as privileged, thereby shielding victims of sexual harassment and employers from a potential liability for damaging an alleged harasser’s reputation for defamation, libel, slander, etc.
 
Privileged communications now include:

  • An employee’s complaints of sexual harassment to an employer based on credible evidence
  • Communications between an employer and people (such as witnesses) regarding a sexual harassment complaint

 
The law also authorizes employers to tell a prospective employer, whether they would rehire an employee and whether that decision is based on a determination that a former employee engaged in sexual harassment.
 
Harassment, Human Trafficking Training Requirements Increased

SB 970: Employment: human trafficking awareness and AB 2034: Human trafficking: notice
In an effort to increase awareness among California employees likely to interact and come in contact with victims of human trafficking, hotel and motel employers will be required to provide employees with at least 20 minutes of prescribed training and education to identify, respond to and report human trafficking.
 
SB 970 requires that hotels and motels, excluding bed and breakfast establishments, comply by 2020.
 
Under AB 2034, agencies, businesses and establishments operating intercity passenger rail, light rail and/or bus stations must provide new and existing employees with 20 minutes of training on how to both recognize the signs of human trafficking and report those signs to law enforcement.
 
Compliance with AB 2034 will be required by Jan. 1, 2021.
 
SB 1343: Employers: sexual harassment training: requirements
Employers with 50 or more employees, under FEHA, are required to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct and harassment based on gender to all supervisory employees within 6 months of assuming their role and every 2 years after.
 
SB 1343 extends this training requirement to include employers with five or more employees. By Jan. 1, 2020, smaller employers must provide 2 hours of sexual harassment training to supervisors and an hour of training to non-supervisory employees. Also by Jan. 1, 2020:

  • Temporary and seasonal employees must also be trained within 30 days of their hiring or 100 hours worked, whichever is first.
  • Sexual harassment prevention training for migrant and seasonal agricultural workers must be consistent with the training provided to nonsupervisory employees.

 
AB 2338: Talent agencies: education training
Under AB 2338, talent agencies will need to provide artists with educational materials on sexual harassment prevention, retaliation and reporting resources, as well as nutrition and eating disorders.
 
All materials must be provided within 90 days in a language the artist understands and, if the artist is between the ages of 14 and 17, they, along with their parents or legal guardians, must receive training in sexual harassment prevention, retaliation and reporting prior to the issuance of a work permit.
 
Corporate Board Rule Aimed to Advance Gender Equality

SB 826: Corporations: boards of directors
All publicly traded companies that have principal executive offices in California will be required to appoint at least one female to their boards of directors by Dec. 31. The law, the first of its kind, is intended to break down corporate barriers to advance gender equality.
 
At the end of 2021, the law increases these requirements to include at least two females on boards with five directors. A minimum of three females will be required on a board with six or more directors. Boards with four or fewer directors must have at least one female director.
 
The law authorizes the Secretary of State to enforce a $100,000 penalty for a company’s first violation. For any subsequent violation, the fine increases to $300,000.
 
Minimum Wage, Salary Threshold Continues to Rise

California continues raising its minimum hourly wage to meet its 2022 goal of $15. The minimum hourly wage climbed to $12 for employers with 26 or more employees and to $11 for smaller businesses employing 25 or fewer employees.
 
Barring an economic downturn, California’s minimum hourly wage will increase incrementally until reaching the $15 goal in 2022 for larger employers and 2023 for smaller businesses.
 
Even with the U.S. Department of Labor’s overtime pay standards for exempt executive, administrative and professional workers on hold, California moved ahead to meet the proposed federal standards, raising the annual salary threshold to $49,920 — approximately $4,160 a month — for employers with more than 26 employees.
 
The annual salary threshold will rise to $54,080 beginning in January 2020 for larger employees.
 
Notable Changes to Family Leave, Rest Periods, Pumping Locations

SB 1123: Disability compensation: paid family leave
Under SB 1123, the scope of the state’s Family Temporary Disability Insurance Program was expanded.
 
The program’s Paid Family Leave provides a benefit of up to 6 weeks of partial pay to employees taking time off to care for a seriously ill child, parent, grandparent, grandchild, sibling, spouse or registered domestic partner, and time off to bond with a new child through birth, adoption or foster care placement.
 
Beginning Jan. 1, 2021, the law expands the State’s paid leave law to include individuals taking time off to attend to a “qualifying exigency” arising from being called to active duty. This includes a call to active duty of a person’s spouse, domestic partner, child or parent in the armed forces.
 
AB 1654: Labor Code Private Attorneys General Act of 2004: construction industry
The Labor Code Private Attorneys General Act of 2004 allows an aggrieved employee to bring civil action to recover specified civil penalties — that would otherwise be assessed and collected by the Labor and Workforce Development Agency — on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees.
 
With the passage of AB 1654, construction industry employees are now prohibited from filing PAGA claims if they are covered by a collective bargaining agreement in effect any time before Jan. 1, 2025. There is a caveat, however: in order to qualify, the collective bargaining agreement must contain grievance and binding arbitration procedures that can address Labor Code violations.
 
The law authorizes the construction-industry exception until the collective bargaining agreement expires or until Jan. 1, 2028, whichever is earlier. This provision will be repealed on that date as well.
 
SB 1976: Employment: lactation accommodation
Under SB 1976, employers are now required to provide breastfeeding mothers with a permanent location — other than a bathroom — where they can pump.
 
If operational, financial or space limitations prevent this, then a temporary space may be used. Temporary locations must be: private, free from intrusion and not used for purposes other than lactation. 
 
AB 2605: Rest breaks: petroleum facilities: safety-sensitive positions and AB 2610: Employees: meal periods
State lawmakers passed a series of laws this year stimulated by the California Supreme Court’s 2017 affirmation of state law requirements that entitle employees to duty-free rest periods in Augustus v. ABM Security Systems, Inc.

  • California law prohibits employers from requiring employees to work during a mandated meal or rest and recovery period. AB 2605 allows for an exception. Safety-sensitive petroleum industry employees are exempt from the rest and recovery period requirements until Jan. 1, 2021. The law provides that an employee must be compensated 1 additional hour of pay for any rest or recovery period during which the employee was interrupted or forced to miss.
  • Under California law, employers are generally prohibited from requiring employees to work more than 5 hours per day without providing a meal break of at least 30 minutes. AB 2610 allows commercial drivers transporting feed in rural areas to deviate from the normal timing for meal periods. These drivers can work up to 6 hours before taking a meal break, if they receive no less than 1.5-times overtime pay when required by law.

 
Coming up in the New Labor & Employment Law Legal Alert Series:

Part II of this Labor & Employment Update Series will take an in-depth look at 2018’s significant labor and employment court decisions that will impact public agencies, private businesses and employees. Watch for it soon!
 
Learn more by watching BB&K’s Annual Labor & Employment Update Webinar
 
If you have any questions about these new laws or how they may impact your business or agency, please contact the authors of this Legal Alert listed to the right in the firm’s Labor & Employment practice group or your BB&K attorney.
 
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Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

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