California Employer Compliance: New Laws Affect Nearly Every Business

The 2017-2018 legislative session concluded last month with new laws effecting almost all employers in California.  Here’s a summary of the new laws, as well as the bills that would have had a significant impact, but were vetoed by Governor Brown.

California’s New Employment Laws

SB-1343: Employers with +5 employees must provide harassment training for all:

Existing law requires employers with 50+ employees to provide harassment training to all supervisory employees (Gov’t Code Sec. 12950.1).  Senate Bill 1343 expands the training requirement by requiring employers with five or more employees to provide a one-hour harassment training to all nonsupervisory employees, in addition to the two-hour training requirement for all supervisory employees.

The training for all employees must be completed by January 1, 2020.  After January 1, 2020, employers must provide awareness training once every two years, and new hires must be trained within six months of hire.

Employers must also train seasonal and temporary employees, even if they are hired to perform work for less than six months. The training must occur within 30 calendar days after hire or within 100 hours worked – whichever occurs first.

To help employers comply with the new requirement, the Department of Fair Employment and Housing (DFEH) will develop or obtain two online training courses.

SB-1300: Limitation on the Use of FEHA Releases and Expansion of Harassment Claims

In addition to declaring that “harassment cases are rarely appropriate for disposition on summary judgment,”  Senate Bill 1300 (1) expands the scope of harassment claims by providing that employers may be liable for all forms of harassment (not just sexual harassment) by nonemployees and (2) limits the use of a Fair Employment and Housing Act (FEHA) release.

Under the newly added Gov’t Code Sec. 12964.5, any agreement that includes a release of FEHA claims and a non-disparagement clause preventing an employee from disclosing information about sexual harassment and other unlawful acts in the workplace, executed in exchange for a raise or a bonus or as a condition of continued employment, will be unenforceable.

Notably, a release or non-disparagement clause that is part of a “negotiated settlement agreement” is permitted, provided the “negotiated” agreement is voluntary, deliberate and informed, provides consideration of value, and notifies the employee of the right to retain an attorney.

SB-820: Limitation of Confidentiality in Settlement Agreements

Senate Bill 820 seeks to curtail “aggressors” who “evade justice simply because they have a fat wallet at their disposal”.  Under the newly added Civil Code Sec. 1001, any settlement agreement entered into on or after January 1, 2019 that prevents disclosure of factual information regarding workplace harassment or discrimination based on sex, sexual harassment and a sexual assault, is void as a matter of law. A plaintiff-party may, however, request that his/her identity (including information pertaining to his/her identity) be made confidential.

Confidentiality concerning the amount paid to settle the claim is permitted.

AB-3109: A Party’s Right to Testify

Assembly Bill 3109 adds Section 1670.11 to the Civil Code to prohibit a provision in a settlement agreement that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.

Per the author of the bill, although confidentiality provisions may be relevant, they should not prevent a person from offering relevant testimony in a public forum on a matter of public concern, if the person is required or requested to provide testimony.

AB-1976: Expansion of Lactation Accommodation Requirements

California law requires employers to make reasonable efforts to provide a room, other than a toilet stall, for employees to express milk.   Assembly Bill 1967 amends Labor Code Sec. 1031 and provides that a temporary lactation location is appropriate when:

• The employer is unable to provide a permanent lactation room because of operational, financial or space limitations;
• The temporary lactation location is private and free from intrusion; and
• The temporary location is used only for lactation purposes while the employee is expressing milk;

Employers must also provide a location that is in close proximity to the employee’s work area.

SB-1412: Limiting Criminal History Inquiries

Existing law prevents employers from asking applicants to disclose information concerning criminal history until a conditional offer of employment has been made. Exceptions exist when:

(1) an employer is required by law to obtain information regarding a conviction of an applicant;

(2) the job requires possession or use of a firearm;

(3) an individual who has been convicted of a crime is prohibited by law from holding the position sought; or

(4) an employer is prohibited by law from hiring an applicant who has been convicted of a crime.

Senate Bill 1412 clarifies the exceptions – they apply to a public agency and a private corporation and limits employer consideration to “particular convictions” when rejecting applicants. A “particular conviction” is defined as “a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.”

AB-2282: Clarifying Salary History Information

Last year California passed a law prohibiting employers from asking applicants to disclose salary history information. Assembly Bill 2282 is a “clean up” bill to clarify several ambiguities in the law. For example, employers are permitted to ask about an applicant’s salary expectations. The bill also defines an “applicant” as an individual who is seeking employment with the employer and is not currently employed by the employer.

AB 2282 further amended the California Fair Pay Act to clarify that salary disparity based on an employee’s existing salary may be permitted provided it is justified by seniority, merit, production (quality or quantity) or any other bona fide factor other than sex (e.g. local ordinance requiring a higher minimum wage).

Employment Bills vetoed by the Governor

Governor Brown signed many bills that will make compliance challenging for California employers. But he also vetoed a few. Those business owners and human resources professionals keeping an eye on the following initiatives may put worries about the following to rest:

AB-3080: Arbitration Agreements

Assembly Bill 3080 sought to prohibit arbitration agreements covering Labor Code and FEHA claims. The Governor’s veto notice indicated AB-3080 violated the Federal Arbitration Act, and therefore cannot be signed into law.

AB-1870: Extending Period for Filing a DFEH Complaint

Assembly Bill 1870 sought to extend the deadline for filing a DFEH complaint from one year to three years. Governor Brown vetoed the bill, opining that the current one-year filing deadline encourages prompt resolution while memories and evidence are fresh and ensures that unwelcome behavior is promptly reported.

AB-1867: Record Retention

In its original version,  Assembly Bill 1867 sought to require employers to retain records of employee sexual harassment complaints for a period of 10 years from the date a harassment complaint is filed. The requirement was later reduced to five years from the date of the employee’s separation from employment.  However, in vetoing the bill, the Governor opined that the five-year retention period was unwarranted and “could lead to retention of records for decades”.

AB-2732: “Worker’s Bill of Rights”  

Assembly Bill 2732 sought to require all employers to provide all employees in California a written and detailed list of rights related to labor trafficking. In his veto message the Governor indicated the measure was too burdensome and unwarranted as “the vast majority of California employers have nothing to do with labor trafficking.”

Notably, the Governor did sign a bill requiring human trafficking awareness training for hotel and motel employees who will “likely interact or come into contact with victims of human trafficking”.

Remember the saying: “being forewarned is being forearmed.” However, it means nothing for those who don’t actually act to comply with the law. Employers who need more information about  the new legislation should contact counsel for clarification.

Nicholas Kanter and Tal Burnovski Yeyni are employment defense attorneys.