California employers need to maintain a general understanding of California employment law. This knowledge is the basis for crafting lawful, effective employment and operations policies and procedures. These California employment law updates for 2020 will get you up to speed on legislative actions taking effect this year in the Golden State
How to Use These California Employment Law Updates
Employers should review the information included here and discuss the ramifications of these changes with an experienced California labor and employment attorney. An evaluation of policies and procedures is in order, and many employers will need to update their company practices and documentation in accordance with the new California labor laws.
AB5: The Headliner of the 2020 California Employment Law Updates
Assembly Bill 5 (AB5) took effect on January 1, 2020. The law has received a significant amount of attention, including a fair share of dissenting opinions. Lawsuits have been filed and initiatives to repeal the statute are underway. However, AB5 is currently the law of the land, and employers who do not comply with the standards set forth in the law are subject to penalties — and likely to land in litigation.
AB5 categorizes as employees some workers who were previously classified as contractors. The law implements the ABC test from Dynamex Operations West, Inc. v. The Superior Court of Los Angeles County but with wider reach. While the ABC test outlines the characteristics that make a worker an employee versus an independent contractor, there is still room for interpretation, and pending lawsuits and ballot initiatives further muddy the water for employers.
Read more about the current status of AB5 and how employers can maintain compliance here.
In Other News: New California Labor Laws for the Year Ahead
Although AB5 has garnered much public attention, there are quite a few other new California labor laws of which employers should be aware. Here are the California employment law updates employers need to review:
AB51: Employment Discrimination: Enforcement
AB51 prohibits a “person” from requiring an employee or applicant to “waive any right, forum, or procedure for a violation of any provision of” the California Fair Employment and Housing Act (FEHA), the Labor Code or other laws that govern employment, including the right to sue in court or state agency as a condition of employment or continued employment.
The law, which applies to agreements “entered into, modified, or extended on or after January 1, 2020,” also prohibits retaliation against an employee or applicant who refuses to enter into an arbitration agreement.
Violation of AB51 is a misdemeanor. Exceptions to the law include “post-dispute settlement agreements or negotiated severance agreements.” AB51 notes that the law does not intend to invalidate arbitration or other agreements that are enforceable under the Federal Arbitration Act (FAA).
SB707: Employer Failure to Pay Arbitration Costs or Fees
Under SB707, an employer waives the right to compel arbitration if the employer fails to pay fees or costs to initiate arbitration within 30 days after the due date or fails to pay fees and costs within 30 days of the due date during the pendency of an arbitration.
In the event of such violations, an employee has the right to withdraw from arbitration and proceed in court in these cases, and the court must impose sanctions on the employer under the guidance of CCP Section 1281.99.
SB188: Hairstyles
SB188 provides that the definition of race under FEHA will “also include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles, and would define protective hairstyles for purposes of these provisions.”
To remain compliant with SB188, employers should review and update employee handbooks, harassment and discrimination policies, EEO policies and dress and grooming policies in accordance with the law.
SB142: Lactation Accommodation
SB142 expands existing law to include additional requirements. Employers must provide a lactation room or some other location that allows an employee to express milk in private. The space must be “safe, clean and free of hazardous materials” and provide a “surface to place a breast pump and personal items” as well as a place to sit, and the space must have access to electricity.
The employer must provide access to “a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace.” If a refrigerator is not feasible, then the employer must provide a cooler.
Additional provisions are included for multiemployer worksites and agriculture employers. Employers with 50 employees or fewer may seek an exemption with a showing of undue hardship.
The bill provides direction to employers regarding updating employment policies accordingly. Consulting with a California labor and employment attorney will help ensure your company has taken appropriate action in response to these employment law updates. Denial of reasonable break time or adequate space for lactation purposes is a violation of Labor Code Section 226.7 and an aggrieved employee may file a complaint with the Labor Commissioner.
SB83: Paid Family Leave Expansion
SB83 increases Paid Family Leave (PFL) benefits from six to eight weeks. The law takes effect on July 1, 2020.
AB1223: Organ Donor Leave of Absence
AB1223 amends Section 1510 of the Labor Code, which requires employers to grant paid leaves of absence of up to 30 business days for the donation of organs and five days for the donation of bone marrow to another person. Additional unpaid leave of up to 30 business days is also required under the law after the employee has exhausted all available sick leave time.
Additionally, AB1223 prohibits certain life and disability insurance policies from declining or limiting coverage to a person who is a living organ donor.
AB9: FEHA Administrative Exhaustion Exemption
Under AB9, an aggrieved employee has three years from the date of violation to file a DFEH complaint. The law previously required these claims to be filed within one year.
SB530: Sexual Harassment Training for Construction and Temporary Employees
Current California law sets forth various requirements for sexual harassment training by certain employers that must be met by January 1, 2021. SB530 now authorizes “a building and construction trades apprenticeship program to provide prevention of harassment training programs for journey-level workers.” The law also extends the deadline to January 1, 2021 to provide training to “seasonal, temporary, or other employees hired to work for fewer than six months.”
SB778: Sexual Harassment Training
SB778 also addresses the state’s requirements for sexual harassment training by employers. The bill extends the deadline for training non-supervisory employees to January 1, 2021. Additionally, supervisors who underwent training in 2019 do not have to undergo training for another two years.
AB547: Sexual Violence and Harassment Prevention for Janitorial Employees
AB547, which went into effect on January 1, 2020, requires janitorial services companies who apply for new registration or registration renewal with the Division of Labor Standards Enforcement (DLSE) to submit proof of completion of the sexual violence and harassment prevention training required by the DLSE and developed pursuant to Labor Code Section 1429.5.
AB241: Implicit Bias Training in Medical Treatment for Physicians and Surgeons
AB241 provides that continuing education courses for physicians and surgeons must include by January 1, 2022 instruction on understanding implicit bias in medical treatment. Additionally, the Board of Registered Nursing and the Physician Assistant Board must adopt regulations that require continuing education courses for their licensees to include curriculum on understanding implicit bias in treatment.
SB688: Expansion of Labor Commissioner Authority to Order Restitution
Existing law allows the Labor Commissioner to recover restitution of wages plus penalties and liquidated damages. SB688 permits the Labor Commissioner to recover restitution of wages not paid pursuant to contract, including amounts in excess of the minimum wage.
AB1695: Health Facilities
AB1695 requires skilled nursing facilities to notify residents and their representatives of impending sales or transfers of ownership or management at least 90 days before finalization. The bill also establishes a 60-day transitional period for nursing home transfers, during which most employees are protected from termination, wage decreases, and other employment actions.
AB1804: OSHA Reporting
AB1804 updates the mechanism by which employers are required to report occupational injuries or illnesses to Cal/OSHA. The new law requires these reports to be made by phone or online mechanism. However, pending development of the online form, employers should continue to report incidents by phone or email.
AB1805: OSHA Definition Updates
AB1805 revises the definition of a “serious injury or illness” by “removing the 24-hour minimum time requirement for qualifying hospitalizations” and updates the definition of “serious exposure” to include exposure to a hazardous substance where resulting death or serious injury is a “substantial possibility.” The bill also incorporates loss of an eye as a qualifying injury.
AB749: Settlement Agreements
AB749 prohibits rehire provisions in settlement agreements. However, if the employer found that the departing employee engaged in sexual harassment or sexual assault, the rehire provision is allowed. Notwithstanding this prohibition, an employer may refuse to rehire that employee for legitimate, non-retaliatory reasons.
AB25: California Consumer Privacy Act
Under the California Consumer Privacy Act, which took effect on January 1, 2020, consumers — including employees — have “various rights with regard to their personal information held by business, including the right request a business to disclose specific pieces of personal information it has collected and to have information” deleted.
Businesses must make available at least two methods for submitting requests, including a toll free number and a website address if the business has a website. The business has 45 days to disclose and deliver the information.
California Wage Laws and Ordinances
A list of California employment law updates would be incomplete without some attention to California wage laws. An increase in California’s minimum wage requirement went into effect on January 1, 2020. Employers of 26 or more employees must now pay a minimum wage of $13 per hour. Employers of 25 or fewer must pay $12 per hour in wages.
In addition to new state requirements, many municipalities in California now impose a minimum wage. For example, ordinances in the City of Los Angeles and Los Angeles County will raise the minimum wage to $15 per hour for employers of more than 25 employees and to $14.25 for those with 25 or fewer.
Businesses Need a Trusted California Labor and Employment Attorney
The provisions listed here are just a sampling of the requirements and expectations placed on employers in California. With abundant and ever-changing laws, it can be a true challenge for employers to stay on the right side of the law. The best way to prevent missteps and protect your company — and its employees — is to consult with an attorney who has deep knowledge of employment law in California.
To further discuss these California employment law updates or if you’re seeking legal counsel and representation from an attorney who is up-to-date on new California labor laws and knows the intricacies and applications of old, new and pending actions across the state, contact Susan A. Rodriguez of the Law Offices of Susan A. Rodriguez, APC. You can reach Susan by phone at (213) 943-1323 or (310) 350-9995 (cell).
Posted by Susan A. Rodriguez, Esq.
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