New Laws For California Employers Take Effect Jan. 1st
California Governor Jerry Brown recently signed employment-related bills into law, many of which will take effect on January 1, 2019. These laws will have an immediate impact on the workplace and will require employers in the state to revamp existing practices.
What is readily apparent is that the #MeToo movement provided the impetus for much of the new legislation. Many of the new laws are aimed at curtailing acts of harassment in the workplace.
Of significance, employers will no longer be able to enter into confidentiality agreements related to claims of sexual assault, sexual harassment, gender discrimination, and related retaliation and “failure to prevent” claims. However, as detailed in the following, the labor and employment laws set to go into effect in 2019 run the gamut.
Anti-Harassment Laws
Laws to encourage reporting and disclosure of claims related to sexual harassment:
Protection for Employers Against Defamation Suits – AB 2770 (Irwin, Dem-Thousand Oaks) provides employers with protection from potential defamation suits resulting from communications with prospective employers regarding sexual harassment complaints against former employees. Subject to limited exceptions, a qualified privilege now exists with respect to an employer’s communications with a prospective employer regarding whether the employer would re-hire an employee alleged to have engaged in sexual harassment, so long as those communications are made without malice.
No More Confidentiality Clauses – SB 820 (Leyva, Dem-San Bernardino) prohibits confidentiality clauses in settlement agreements preventing disclosure of information relating to claims of sexual harassment, sexual assault, sex discrimination, and related retaliation and “failure to prevent” claims filed in a court of law or with an administrative agency. However, the law does not prevent a claimant from limiting the disclosure of:
(1) his or her identity, or
(2) facts that could lead to the discovery of his or her identity. Additionally, courts will no longer be able to restrict the disclosure of such facts in relevant civil proceedings.
No Waiving the Right to Testify – AB 3109 (Stone, Dem-Monterey) makes it unlawful for any settlement or contract term entered into after January 1, 2019 to require a party to waive the right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. The law applies where a party’s testimony is required or requested pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.
Laws that will increase California employers’ potential liability for harassment-related lawsuits:
Redefining Sexual Harassment – SB 1300 (Jackson, Dem-Santa Barbara), the strongest, and largest, sexual harassment bill passed this year will amend California’s Fair Employment and Housing Act (FEHA) in a number of ways, including:
(1) to expand employers’ potential liability by adopting or rejecting specific judicial decisions regarding sexual harassment;
(2) to expand an employer’s potential liability under FEHA for acts of nonemployees to all harassment (removing the “sexual” limitation);
(3) to prohibit an employer from requiring an employee to sign a release, as a condition of employment, raise, or bonus (but not as part of a bona fide dispute), of (a) FEHA claims or rights, or (b) a document prohibiting disclosure of information about unlawful acts in the workplace;
(4) to prohibit a prevailing defendant from being awarded attorneys fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so; and,
(5) to authorize (but not require) an employer to provide bystander intervention training to its employees.
More Potential Defendants for Harassment Suits – SB 224 (Jackson, Dem-Santa Barbara) includes additional examples of potential defendants who may be found liable for harassment under California Civil Code. A defendant may be liable where he or she “holds himself out as being able to help the plaintiff establish a business, services, or professional relationship with the defendant or a third party.”
Altering Employee Compensation & Benefits Practices
Contractor Liability for Unpaid Wages – AB 1565 (Thurmond, Dem-Richmond) clarifies law making certain direct contractors performing work in the state liable for unpaid wages by subcontractors. Generally, under California law, a direct contractor may be held liable for a subcontractor’s failure to pay wages to its workers. Under existing law, the direct contractor is entitled to certain information and documents relating to the subcontractor’s payment of wages “upon request,” otherwise direct contractors may withhold any “disputed” sums relating to failure to pay wages from the subcontractor. The new law, effective January 1, 2019, states that contracts must provide all items of information that will be requested of the subcontractor, such as payroll records and other information related to hours worked, before such withholding can take place.
Payroll Records Requests – SB 1252 (Pan, Dem-Sacramento) clarifies existing laws regarding an employee’s right to inspect or copy their own payroll records and requires that an employer must provide the copies of the records in addition to inspecting them.
Clarifying Hiring Practices
Equal Pay Changes – AB 2282 (Eggman, Dem-Stockton) clarifies the ban on salary history inquiries and the requirement to provide pay scales to applicants. The law will allow employers to inquire into an applicant’s salary expectations for the prospective position. In addition, external applicants will be entitled to a pay scale upon request, but only after completing an initial interview.
Worker Safety Practices
Worker Safety Mandates – In 2016, the United States Department of Labor’s Occupational Safety and Health Administration (OSHA) adopted the Improve Tracking of Workplace Injuries and Illnesses rulemaking. This rule sought to improve workplace safety through expanded access to injury-and illness-related information.
In 2017, OSHA announced its intent to relax the workplace injury and illness reporting requirements. Seemingly in response to this announcement, California passed AB 2334 (Thurmond, Dem-Richmond), which requires Cal/OSHA to monitor implementation of the rule.
If Cal/OSHA determines that OSHA has eliminated or substantially diminished the requirements for employers to submit injury and illness data, Cal/OSHA is required to convene a committee to evaluate how to implement the changes necessary to protect the goals of the rule. Effectively immediately, AB 2334 also changes the statute of limitations for citations or violations regarding recordkeeping requirements from six months after the occurrence of the violation to either the date the violation is corrected or the date Cal/OSHA discovers the violation.
