As the new year has already commenced, we thought it important to remind our readers of the more significant legislation that went into effect. Last year, we covered AB 51 – which bans mandatory arbitration agreement, the passage of AB 5 – which codified the Dynamex ABC test, and the CROWN Act – which protects employees from discrimination based on their natural hair and hairstyles associated with their race.
It is important to note some other significant changes:
Increase in Minimum Wage: For those employers with 26 or more employees, the new minimum wage is $13/hour. Keep in mind that some cities have a different hourly wage in effect, so employers should check with their local cities. In addition, for all salaried employees, their salary must be at least 2x the minimum wage. So, employers should make sure that they increase all salaried employees’ wages in order to comply with the salary test.
SOL Extended for DFEH Complaints: AB 9 referred to as the SHARE (Stop Harassment and Reporting Extension) Act provides that employees now have three years to file their Department of Fair Employment & Housing (“DFEH”) Complaints prior to bringing a lawsuit for any claims under the Fair Employment & Housing Act (“FEHA”). The prior law which had been in place for many years provided for a one-year statute of limitation for employees to file their DFEH Complaints. What this new law means is that employees will now have four years to bring a harassment/discrimination lawsuit in state court. In light of this new law, employers should review their document retention policies, and consider retaining employee records for a minimum of four years so that they are able to properly defend a FEHA lawsuit brought by a former employee.
Harassment Training of Employees: Harassment training is now required for all employers with at least five employees. The law extends the deadline for completion of that training to January 1, 2021. Keep in mind that the training required for supervisors is two hours, and one hour for all other employees.
No Re-Hire Clauses banned from Settlement Agreements: AB 749 provides that a company can no longer include in its settlement agreement with aggrieved employees a provision prohibiting the employee from being rehired or reemployed from the company. This law only applies in the context of employees who are “aggrieved” meaning those who have filed an agency complaint, lawsuit, grievance, or even internal complaint. It would not apply when a severance agreement is offered to an employee who is terminated (so long as it is not being offered as settlement of an employment dispute and the employee has not yet filed a claim against the employer).
Amendments to Lactation Accommodation: SB 142 amended the lactation law relating to an employer’s duty to accommodate lactating employees. Some of the amendments include: (1) reasonable amount of time must be provided each time an employees need to express milk (does not have to run concurrent with break period anymore); however, any time outside normal break period is unpaid; (2) new list of requirements for the location of lactation, such as a safe and clean location free of hazardous materials, with a surface to place breast pump and personal items and a place to sit, with access to electricity or alternative devices to allow for the operation of electric or battery-powered breast pumps; (3) there also must be access to a sink with running water and a refrigerator suitable for storing the milk in close proximity to the employee’s work space; (4) if the room being used for lactation is a multi-purpose room, the use of the room for lactation must take precedence over the other uses; (5) an employer must have a written policy setting forth its lactation accommodation, including a statement about an employee’s right to file a complaint with the labor commissioner; (6) penalty of $100 for each day of violation; and (7) limited exceptions allowed where employer employs less than 50 employees.
The full text of SB 142 can be found here.
Organ Donor Leave extended: For all employers with at least 15 employees, employees are now allowed to take an additional 30 days of unpaid leave when they need time off to donate an organ (total of 60 days now allowed).
Labor Commissioner given power to pursue contract wages: SB 688 allows for the Labor Commissioner to now issue citations against employers who contractually promise to pay more than minimum wages.
Mandatory Cal-OSHA Reporting: AB 1804 requires employers to immediately report to Cal-OSHA via telephone or email, or via an online web portal, serious injury, illness, or death. The online web portal is currently being development by Cal-OSHA. Failure to report results in a $5,000 penalty.
Penalty for Failure to Timely Pay Arbitration Costs: SB 707 provides that employers are to pay within 30 days after the due date the costs/fees necessary in order to commence arbitration, otherwise the employer will be considered in material breach and waive its right to arbitration. Further, a Court may also impose monetary sanctions on an employer for breaching the agreement.
Status of AB 51: In January 2020, as a result of litigation filed against the state challenging this new law, a federal district court issued a preliminary injunction against the State enjoining the state from enforcing AB 51 (prohibiting mandatory arbitration agreements). This preliminary injunction maintains the status quo until the merits of the litigation is decided. It is unclear, however, what will happen with private litigation involving the enforceability of mandatory arbitration agreements.