Last year was a busy legislative year in California. The #MeToo and #TimesUp movements in particular spawned a host of new employment laws that took effect on January 1st. If you haven’t done so already, you should review your employee handbook and personnel policies to make sure that you are in compliance with these new laws.
SB 1343 – Sexual harassment training
Prior law required California employers with 50 or more employees to provide each supervisor with 2 hours of sexual harassment training/education every 2 years. SB 1343 extends this obligation to California employers with 5 or more employees. Plus, this new law adds an additional requirement that employers provide 1 hour of sexual harassment to non-supervisory employees. We previously blogged about the specifics of SB 1343 here.
SB 1300 – Proving sexual harassment
This new law significantly expands employer liability for sexual harassment and other claims under California’s Fair Employment and Housing Act (“FEHA”). First, SB 1300 adds a legislative declaration that sexual harassment claims are rarely appropriate for resolution on summary judgment. Second, this new law lowers the burden of proof that is required to establish harassment – specifically rejecting the “stray remark” doctrine and lowering the requirements for showing that the harassment was “severe” and “pervasive.” Now, even a single incident of alleged sexual harassment is sufficient to create a triable issue as to whether hostile work environment harassment occurred. Third, the new law prohibits California employers from requiring an employee to sign a release of a FEHA claim “in exchange for a raise or bonus, or as a condition of employment or re-employment.” And, finally, SB 1300 makes employers liable to independent contractors, too, for all types of harassment (not just sexual harassment).
SB 224 – Non-employer liability for sexual harassment
Prior law protected employees and applicants from sexual harassment by employers and potential employers. SB 224 expands sexual harassment liability to non-employers – specifically, to anyone who “holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party.” The new law specifically states that an “investor, elected official, lobbyist, director, and producer” are examples of those third parties who now face liability for sexual harassment even though they are not “employers.”
AB 2770 – Sexual harassment complaints are privileged and protected
Prior law allowed a person accused of sexual harassment to bring a claim against the accuser for defamation, libel, and/or slander. Under this new law, sexual harassment accusers and their employers are protected from being sued in connection with allegations of sexual harassment. AB 2770 also explicitly allows a former employer to tell a prospective employer who calls for a reference that the former employee is not eligible for re-hire based on allegations of sexual harassment, so long as the disclosure is made without malice and based on “credible” evidence. We previously blogged about this new law here.
AB 3109 – No restrictions on providing sexual harassment testimony
This new law prohibits language in employment agreements, including settlement agreements, that purport to prevent or restrict anyone from testifying in any legislative, administrative, or judicial proceeding concerning alleged sexual harassment or criminal conduct
SB 820 – No confidentiality of sexual harassment allegations
Previously, employers often resolved disputed sexual harassment claims by entering into settlement agreements that, in exchange for the employer paying money to the claimant, prohibited the claimant from disclose facts about the disputed claims. SB 820 now prevents that practice. Under this new law, settlement provisions that seek to prevent the disclosure of factual information relating to claims of sexual assault, sexual harassment, sex discrimination or resulting retaliation claims are void and unenforceable. Importantly, however, this new law does notprohibit an employer from including a provision in a settlement agreement that precludes the disclosure of (a) the settlement amount, or (b) the claimant’s identity, if the claimant wants to maintain privacy.
AB 1976 – More lactation accommodation obligations
Prior law required California employers to make “reasonable efforts” to provide female employees with a room or location to express breast milk. Now, AB 1976 adds a new requirement that the room or location must be something otherthana toilet stall or bathroom. The new laws says that this non-bathroom location can be “temporary” if (a) the employer is unable to provide a permanent area due to operational, financial, or space limitations, (b) the temporary location is private and free from intrusion while being used for lactation purposes, and(c) the temporary location is not used for any other purpose while being used for lactation. AB 1976 now aligns California state law with San Francisco’s more progressive lactation accommodation ordinance that took effect on January 1, 2018, which we blogged about here.
SB 970 – Employer notice obligations about human trafficking
Prior law required specified businesses to post a notice, as developed by the Department of Justice, containing information relating to slavery and human trafficking, including providing phone numbers of nonprofit organizations that a person could call for services or support in the elimination of slavery and human trafficking. SB 970 expands California’s FEHA to require that hotel and motel operators provide 20 minutes of classroom or other interactive training regarding human trafficking awareness to all employees who are “likely to interact or come into contact with victims of human trafficking.” According to the text of this new law, this includes any “employee who has recurring interactions with the public, including, but not limited to, an employee who works in a reception area, performs housekeeping duties, helps customers in moving their possessions, or drives customers.”
Proposition 11 – Private ambulance employees
Prior law, prohibited California employers from requiring employees to carry pagers or other electronic communication devices while they were on their meal or rest breaks. This law was made by the Court in the Augustus v. ABM Security Servicescase, which we blogged about here. Proposition 11, which was approved by California voters in the November 2018 election, specifically overrules the application of the Augustus v. ABM Security Servicesrule to emergency ambulance workers. These workers can still be required to carry pagers or other electronic communication devices while on their meal or rest periods without violating California law.
SB 1412 – Narrower criminal history inquiries
Prior law introduced “ban the box” which prohibited California employers with 5 or more employees from (a) inquiring about an applicant’s prior conviction history, and (b) considering an applicant’s prior conviction history before making an offer of employment. One exception to this law allowed a California employer to conduct a criminal history inquiry when such an inquiry was required by federal or state law. We previously blogged about the details of the “ban the box” ordinance here. Under the new law, this exception is narrowed to only those instances where an employer is (a) legally required by law to inquire into a “particular conviction,” or (b) legally prohibited from hiring an applicant with that “particular conviction.”
SB 2282 — Clarifies prohibited salary history inquiries
Prior law (AB 168, which we blogged about here) prohibited all California employers from asking about, or relying upon, an applicant’s prior salary when deciding whether to hire an applicant andwhen deciding how much to pay. Prior law also required an employer to provide an applicant with the “pay scale” for a position if the applicant reasonably requested it. SB 2282 now clarifies several important questions left open by the prior law. Under the new law:
— An “applicant” is now defined as an individual seeking employment who is not currently employed with that employer in any capacity or position.
— The “pay scale” is now defined as the salary or hourly wage range for the position being applied for.
— A “reasonable request” is now defined as a request made after the applicant has completed a first interview with the employer.
— An employer may ask about an applicant’s salary expectations.
SB 1402 – Port trucking company customers are jointly liable for the trucking company’s wages owed to employees
This new law requires the California Labor Commissioner to compose a list of port trucking companies with unsatisfied wage judgments, and it makes certain customers who contract with these “blacklisted” trucking companies jointly and severally liable for any unpaid wages and/or other damages owed by the trucking company for any workweek when the customer was using the trucking company’s services. In addition, SB 1402 adds new notice requirements on port trucking companies. They must now give “written notice” to a new customer of all unsatisfied final judgments prior to providing any services to that new customer. They must also give notice to all customers within 30 days of a final entry of judgment for specified claims.
