The new decade has brought with it a multitude of new employment laws that affect every employer operating in California. Here are some of the most significant new laws that will have a definite effect on California businesses and employment:
Extended Deadline to File Complaints with the DFEH
Until this year an employee alleging harassment, discrimination, or other claim under California’s Fair Employment and Housing Act (“FEHA”) had one year from the alleged act to file a complaint with the Department of Fair Employment and Housing (“DFEH”), and then one year from receipt of a Right to Sue Notice to file a lawsuit.
As of January 1, 2020, California employees will now have three years to file a charge alleging discrimination, harassment and retaliation. Now, it could take four years or more from the time a claim is filed with the DFEH before the potential lawsuit is filed. Therefore, some employers may now face claims for the first time three years after an employee no longer works for them and another year or more before the claim first makes it into Court.
No-Rehire Provisions Prohibited in Settlement Agreements
Many employers settle claims with employees pursuant to settlement agreements and, until January 1, 2020, some would make it clear that the employee was ineligible to be rehired by the employer and its affiliates. Now, agreements to settle employment disputes may not contain provisions prohibiting, preventing, or otherwise restricting an “aggrieved person” from obtaining future employment with that employer, or any parent company, subsidiary, division, affiliate, or contractor of the employer. Any such provision contained in a settlement agreement created on or January 1, 2020 will be void.
An “aggrieved person” is anyone who has filed a claim against his/her employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. Thus, the prohibition against no re-hire provisions may not apply to a standard severance or separation agreement if the company is not resolving a specific claim filed by the employee.
Employee Sexual Harassment Training Requirements
Employers with 5 or more employees have until January 1, 2021 to comply with new anti-harassment training requirements. By that date, supervisory employees must receive at least two hours of anti-harassment training and non-supervisory employees must receive one hour of training. Employees must also receive “refresher” training every two years thereafter. New employees and current employees who become supervisors must receive the training within six months of assuming a new or supervisory position.
Mandatory Employee Arbitration Prohibition
As of January 1, 2020, employers cannot require employees or applicants to waive a right, forum, or procedure for a violation of the California Fair Employment and Housing Act (FEHA) or the Labor Code as a condition of employment, continued employment, or the receipt of any employment-related benefit. The new law also prohibits employers from threatening, retaliating or discriminating against, or terminating employees or applicants because they refused to waive any right, forum, or procedure. An award of reasonable attorney’s fees to a prevailing plaintiff enforcing their rights under the Labor Code is now permitted.
The new law does not apply to post-dispute settlement agreements or negotiated severance agreements.
Only mandatory waivers entered into after January 1, 2020 are not affected by the new law.
Enforcement of the new has been enjoined by a federal court. on the grounds that it may be preempted by the Federal Arbitration Act. On December 30, 2019, a federal court granted plaintiffs’ request for a Temporary Restraining Order, and, for now, California has been prevented from enforcing the law. This may change rapidly as the preemption challenge works its way through the Courts. We will continue to update our readers on this issue.
Failure to Timely Pay Arbitration Costs and Fees
Employers enforcing employment-related arbitration agreements must now pay the fees or costs required to initiate and/or continue an arbitration proceeding within 30 days after the due date. Failure to timely pay constitutes a material breach of the arbitration agreement and a waiver of the employer’s right to compel arbitration.
Employees or Independent Contractors
California now requires the application of the rigid ABC test for independent contractor classification to all claims under the California Labor Code, Unemployment Insurance Code, and wage orders of the Industrial Welfare Commission, with limited exemptions for certain occupations and industries. Under the ABC test, a worker is an employee unless the hiring entity can prove all of the following: (A) the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract and in fact; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
The Attorney General and city attorneys of cities with populations greater than 750,000 may seek injunctive relief to prevent the continued misclassification of workers. The risk and potential liability for independent contractor misclassification, has also increased and includes a range of civil penalties and potential personal and criminal liability.
Some occupations and industries are exempted from the ABC test if the hiring entity can prove the specific requirements for exemption. If the exemption applies the hiring entity must determine classification under the Borello test which focuses primarily on whether the alleged employer controls or has the right to control the manner and means of the work.
2020 Leave Laws
A host of new employee leave laws became effective January 1, 2020:
- Organ Donation Leave
Now, in addition to the 30 days of existing paid leave to donate an organ, employers must also provide an employee with up to 30 business days of unpaid leave in a one-year period. - Expanded Paid Family Leave
Effective July 1, 2020, Paid Family Leave benefits will be extended from six weeks to eight weeks (which may be claimed within a 12-month period). Employees may apply for Paid Family Leave benefits when taking time off work to (a) care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling or domestic partner, or (b) bond with a minor child within one year of birth, adoption or foster placement.
Other New Laws Affecting Employers
- Recovery of Civil Penalties for Unpaid Wages
Employees are now authorized to directly recover from their employer a penalty owed for failure to pay wages as a statutory penalty through a hearing under Labor Code Section 98 (a “Berman Hearing”).The law removed the Labor Commissioner’s ability to recover unpaid wages through an independent civil action and transfers that option directly to the employee. It also allows the employee to seek the penalties in multiple forums – through a Berman Hearing or enforce a civil penalty through PAGA, but not both.
- Occupational Injuries and Illnesses Reporting
Employers are now permitted to report by telephone or email of occupational injuries and illnesses to Cal/OSHA. However, an employer’s ability to report by email to when a serious occupational injury, illness, or death occurs must now be made
through an online mechanism established by Cal/OSHA. Until Cal/OSHA makes the online mechanism available, employers are permitted to make the report by email. - Lactation Accommodations
Since 2018, employers have been required to “make reasonable efforts” to provide an employee who wishes to express milk in private with an area that is not a bathroom and is in close proximity to their workspace. Employers, under certain circumstances, may provide a more temporary lactation location due to operational, financial, or space limitations.
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Effective January 1, 2020, an employer now has an affirmative responsibility to provide a lactation room or location for its employees who wish to express milk. Reasonable efforts are no longer sufficient.The new law also requires the lactation room or location: (1) be shielded from view, and free from intrusion; (2) be safe, clean, and free of hazardous materials; (3) contain a surface to place a breast pump and personal items; (4) contain a place to
sit; and (5) have access to electricity or alternative devices. The employer must also provide access to a sink with running water and a refrigerator or cooling device to store milk.An employer in a multitenant building or multi-employer worksite, if it does not have the ability to provide one, may provide a lactation location that is shared among multiple employers within the building or worksite. If an employer has fewer than 50 employees and demonstrates that providing a lactation room or location (other than a bathroom) would impose an undue hardship, it must still make reasonable efforts to provide employees with a private lactation location.
A denial of reasonable break time or adequate space to express milk will be treated as a Labor Code violation for which an employee may file a complaint with the Labor Commissioner. Employers are prohibited from discharging, discriminating, or retaliating against an employee for exercising their right to lactation accommodations.
Employers are now required to develop and implement a lactation accommodation policy that includes information about the employee’s right to request accommodations, the process for making requests, the employer’s obligation to respond to requests, and the employee’s right to file a complaint for violation of their right to accommodation. This lactation accommodation policy must be distributed to new employees upon hiring and to employees who make an inquiry about or request parental leave.
- Hairstyle Discrimination
Effective January 1, 2020, the definition of “race” under FEHA includes “traits historically associated with race,” such as “hair texture and protective hairstyles,” including, “braids, locks, and twists.” Discrimination based on hairstyle is now considered race discrimination.
With these rapid changes in California Labor laws it is imperative that employers proactively work with their business attorneys to assure compliance and promptly address issues that arise in the employment relationship.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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