Employment Law Update – Winter 2019

Solomon Ward is pleased to provide this employment law update that may interest you and your company. Of course, this is not an exhaustive list. We encourage you to ask specific questions about laws that may apply to your Company. Our team is prepared to help.  

Employees’ Statute of Limitations to File Employment Discrimination Claims in California Extended

Effective January 1, 2020, AB 9, known as the Stop Harassment and Reporting Extension (“SHARE”) Act, extends the deadline for an employee to file a complaint alleging employment discrimination and harassment prohibited by California’s Fair Employment and Housing Act (“FEHA”) with the Department of Fair Employment and Housing (“DFEH”) from one-year to three-years.  As a result, an employee will have three-times as long as the current state standard and six-times longer than the federal requirement to file a charge with the DFEH, and, then after receipt of a right-to-sue letter from the DFEH, bring an allegation of unlawful workplace harassment, discrimination, or civil rights-related retaliation under the FEHA.  The SHARE Act does not revive claims otherwise lapsed under the current one-year rule.

This bill, like several other recent bills (e.g., SB 1300 and SB 820) and AB 749 discussed below, increases protections for California workers following the #MeToo and #TimesUp movements. 

Amendment to California Consumer Privacy Act (CCPA)

Last year California enacted the California Consumer Privacy Act of 2018, which beginning January 1, 2020 grants consumers various rights regarding their personal information held by businesses. Among other rights, consumers may request a business to disclose specific pieces of personal information it has collected and to have information held by that business deleted. Businesses that collect consumers’ personal information will be required to, at or before the time of collection, inform consumers what information will be collected and the purposes for which the information will be used.

AB 25 exempts employers from the CCPA requirements, until January 1, 2021, regarding information collected from employers’ applicants and employees.

However, starting January 1, 2020, employers will be required to disclose to their applicants and employees, at or before the time of collection, the categories of personal information that will be collected and the purposes for which it will be used.

Employers should consult with their employment attorneys about potential updates to their employment application forms and other standard forms that collects personal information from employees or applicants.

Prohibition of Employment Arbitration Agreements

Under AB 51, starting January 1, 2020, employers can no longer require employees to agree to arbitrate state discrimination claims or state Labor Code claims. This will mean mandatory arbitration agreements in offer letters and mandatory arbitration agreements during employment may be prohibited.

AB 51 is very similar to last year’s AB 3080, which Governor Brown vetoed on the grounds that it violates federal law. Governor Brown was referring to the Federal Arbitration Act (FAA), which was enacted in 1925 by Congress to safeguard the validity of arbitration agreements.

The new law states it is not intended to “invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act.” At a minimum, employers should be concerned about arbitration agreements not governed by the FAA. Employers should speak with their employment counsel regarding how this new law affects their arbitration agreements.

Prohibition of “No Rehire” Clauses in Settlement Agreements

For settlement agreements entered into on or after January 1, 2020, AB 749 voids “no rehire” provisions – i.e., provisions where an employee who settles his/her claim with an employer agrees that he/she will never work for the same employer, or its related/affiliated entities, again.  Exceptions to this prohibition include: where the employer has made a good faith determination that the individual engaged in sexual harassment or assault; “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person[;]” and in severance or separation agreements unrelated to employment disputes.

Paid Family Leave Benefits Increases

Beginning July 1, 2020, under SB 83, wage replacement benefits under the California Paid Family Leave (“PFL”) increases from six-weeks to eight-weeks.

Lactation Accommodation Requirements Expanded

Paralleling San Francisco-style lactation accommodation requirements, effective January 1, 2020, SB 142 expands existing law by mandating that employers provide a lactation room for employees that meets these requirements:

  • not a bathroom;
  • in close proximity to the employee’s work area;
  • shielded from view;
  • free from intrusion while the employee is lactating;
  • safe, clean, and free of hazardous materials;
  • containing a surface to place a breast pump and personal items;
  • containing a place to sit;
  • with access to electricity or alternative devices (e.g., extension cords, charging stations) that may be needed to operate an electric or battery-powered breast pump; and
  • with access to a sink with running water and a refrigerator suitable for storing milk.

If a multipurpose room is used for lactation and other uses, use for lactation must take precedence.  If employers do not provide employees with lactation break time or space, such would be a violation under rest period laws and subject employers to a $100 penalty per violation under the Labor Code.  The bill does provide for some exemptions, though, including that employers with fewer than 50 employees may be exempt if they can demonstrate undue hardship. 

Failure to Pay Wages Penalties Increases

This law amends Labor Code § 1197.1, which currently permits the Labor Commissioner to issue a citation when an employer has failed to pay at least the minimum wage. The law expands the Labor Commissioner’s citation authority to include when the employer has contractually promised to pay more than minimum wage, but has failed to pay the promised wage.  This bill also provides procedures for an employer to contest such a citation, including posting a bond, and if the employer ultimately does not prevail, provides that the bond will be forfeited to the Labor Commissioner for appropriate distribution.

25 Employees or Less26 Employees or More
January 1, 2019$11.00/hour$12.00/hour
January 1, 2020$12.00/hour$13.00/hour

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California’s minimum wage is also set to increase on January 1, 2020.

With this increase, starting on January 1, 2020, the annual salary requirement for exempt employees will be $54,080 for employers with 26 or more employees and $49,920 for employers with 25 employees or less.

Finally, effective January 1, 2020, the City of San Diego’s minimum wage will increase to $13.00/hour for all employers.

Conclusion  

To the extent that any of these changes affect your business, we suggest that you amend your policies, practices, or documents accordingly.  If the need arises, we look forward to assisting you with any questions or concerns you may have with respect to your employment practices.     

***The information provided in this article is for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem.***  

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