Now that California’s Legislature has adjourned for the 2019 Legislative Session California employers can finally catch their breath. Over 80 new bills that affect employment relations were passed and signed into law during the 2019 Session. Some have received a great deal of press; others not so much.
AB 5 codified the “ABC” Test for determining whether employers can classify workers as employees or independent contractors with regard to wage and hour laws and received great notoriety. Special interest groups scrambled to be excluded. AB 170 exempted newspaper distributors adding to exemptions for insurance agents, certain licensed health care professionals as well as registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fishermen, workers providing licensed barber or cosmetology services, and subcontractors in the construction industry.
There were a litany of less publicized bills affecting employers that also made it into law.
Employees now have three years, not one, from the date upon which an alleged unlawful or discriminatory practice that is cognizable under the California Fair Employment and Housing Act (FEHA) to file suit against their employer thanks to AB 9.
Under AB 51 employers may no longer extract jury trial waivers or agreements to mediate or arbitrate FEHA and statutory employment claims and cannot retaliate against employees who do not agree to mediation or arbitration. There is a specific exemption for valid written arbitration agreements otherwise enforceable under the Federal Arbitration Act. We can expect a mountain of litigation over the constitutionality and application of this law.
AB 547 extends an employer’s obligation to provide sexual violence and harassment prevention training to janitorial workers.
Employers who fail to pay wages now are subject to additional penalties – for any initial violation it is $100 for each failure to pay each employee and $200 for each subsequent, willful or intentional violation, plus 25% of the amount unlawfully withheld. The employee gets to choose whether to pursue this statutory penalty or the civil penalty under Labor Code section 2699(a), but not both.
AB 1554 imposes upon employers the obligation to notify employees who participate in a flexible spending accounts of any deadline to withdraw funds before the end of the plan year; and requires two forms of notice.
SB 142 requires employers to provide a lactation room or location for female employees to privately express milk. It cannot be a bathroom and must be near the employee’s work area, shielded from view, and free from intrusion while the employee is expressing milk. It must contain a surface for placement of a breast pump and personal items, have a place to sit, have access to electricity, a sink with running water and a refrigerator for storing milk. Employers with fewer than 50 employees may seek an exemption if the employer demonstrates that the requirement poses an undue hardship by causing the employer significant difficulty or expense. However, even an exempt employer must make a reasonable effort to provide a place for an employee to express milk in private.
A plethora of new procedural rules were also enacted. There is no better time to reach out to your attorney to provide a complete review of your practices and procedures to assure compliance. Just wait – the 2020 Legislative Session is right around the corner.
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.
