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 Less | 26 Employees or More | |
| January 1, 2019 | $11.00/hour | $12.00/hour |
| January 1, 2020 | $12.00/hour | $13.00/hour |
.
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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