Being an employer keeps getting more complicated for California business owners. The ever-changing landscape of California employment law can make it seem impossible to ensure that your business remains in compliance with hundreds of state, local and federal regulations while also remaining profitable and just getting home from work at a decent time. Trying to grow revenues, develop new products or services and worry about the bottom line often have to take a back seat to the increasing burden of Human Resources management.
Without a dedicated human resources team, employers risk running into HR compliance issues that can quickly turn into costly and time-consuming lawsuits. More new laws are going into effect on January 1st, 2019, many of which will have a big impact on how employers hire and manage their employees. Below are the key new laws that employers need to be aware of.
Wage and Hour
Senate Bill 3 was passed in 2017, but employers need to ensure they remain on track with the wage increase schedule that was enacted. On January 1, 2019, California employers who are not subject to their own local wage ordinances will need to increase their minimum wage rate to $12 per hour for employers with 26 or more employees, or $11 per hour for employers with 25 or fewer employees.
Hiring and Employment Practices
Senate Bill 1412 – Applicants For Employment: Criminal History
SB 1412 clarifies how employers may screen job applicants using information about expunged or judicially-sealed convictions. Under current law, employers are prohibited from “asking an applicant for employment to disclose, from seeking from any source, or from utilizing as a factor in determining any condition of employment, information concerning participating in a pretrial or post trial diversion program or concerning a conviction that has been judicially dismissed or ordered sealed, as provided.”
SB 1412 will narrow an employer’s ability to consider sealed or expunged convictions to only those circumstances where a particular conviction would legally prohibit someone from holding that job.
Senate Bill 1252 – Wages: Records: Inspection And Copying
SB 1252 requires that employers provide employees the right to “receive a copy” of employment records and not just the right to “inspect or copy records” as previously required under Labor Code Section 226.
Senate Bill 826 – Corporations: Boards of Directors
SB 826 requires that by December 31, 2019, any publicly held corporation whose executive offices are located in California (according to the corporation’s SEC 10-K form) need to have a minimum of one female director on its board of directors. Subsequently, no later than December 31, 2021, this bill increases that required minimum number to two female directors if the corporation has five directors or to three female directors if the corporation has six or more directors.
This bill also requires that the California Secretary of State publish a report on its website documenting the number of corporations that have at least one female director and provides that the Secretary of State may adopt regulations to implement this section and may impose hefty fines for violations as follows: $100,000 for failure to timely file board member information with the Secretary of State; $100,000 for a first violation; and $300,000 for a second or subsequent violation.
Assembly Bill 2334 – Occupational Injuries And Illness: Employer Reporting Requirements: Electronic Submission
AB 2334 removes a prohibition that prevents the Division of Occupational Safety and Health from issuing a citation for employer violations of recordkeeping requirement more than six months after the “occurrence” of the violation. The law provides, among other things, that an “occurrence” continues until it is corrected, the Division discovers the violation, or the duty to comply with the requirement that was violated no longer exists.
Discrimination, Harassment and Retaliation
Assembly Bill 2770 – Privileged Communications: Communications By Former Employer: Sexual Harassment
AB 2770 amends Civil Code Section 47 to identify additional types of privileged communications for employees and employers. The new law adds the following: complaints of sexual harassment by an employee – without malice – to an employer based on credible evidence; communications between the employer and interested persons – without malice – regarding a complaint of sexual harassment; communications by the employer – without malice – regarding whether the employer’s decision to not rehire the employee is based on the employer’s determination that the former employee engaged in sexual harassment.
Senate Bill 820 – Settlement Agreements: Confidentiality
SB 820 prohibits adding a provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. The new law also provides that a court may consider the pleadings and other papers in the record, or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions. It also creates an exception, not applicable if a party is a government agency or public official, for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, if the provision is included within the settlement agreement at the request of the claimant.
Senate Bill 1300 – Unlawful Employment Practices: Discrimination And Harassment
Under SB 1300, employers can now be responsible for the acts of nonemployees with respect to any other harassment activity prohibited by California’s Fair Employment and Housing Act FEHA. For example: harassment based on other protected characteristics including, but not limited to, race, religious creed, color, national origin and ancestry.
This law also prohibits employers, in exchange for a raise or bonus, or as a condition of employment, from requiring the execution of a release of a claim or right under FEHA or requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.
Senate Bill 1343 – Sexual Harassment Training: Requirements
SB 1343 requires employers with five or more employees, including seasonal and temporary staff, to provide sexual harassment training and education every two years. By January 1, 2020, and once every two years thereafter, employers are required to have provided at least two hours of sexual harassment training to all supervisors and managers, and at least one hour of sexual harassment training to all non-supervisory employees.
Family and Leave
Assembly Bill 1976 – Lactation Accommodation
Under current California law, employers are required in close proximity to the employee’s work area for the employee to express milk in private for the employee’s child. Employers are also required to provide such employees a reasonable amount of break time. The break time shall, if possible, run concurrently with any break time already provided to the employee. Break time for an employee that does not run concurrently with paid rest breaks need not be paid. See Labor Code Section 1030.
AB 1976 amends Section 1031 of the Labor Code, requiring employers “to make reasonable efforts to provide an employee who wishes to express breast milk with the use of a room or other location, other than a toilet stall…” AB 1976 replaces the term “toilet stall” with “bathroom,” and clarifies that employers that make a temporary lactation location available to employees shall be deemed to be in compliance if all of the following conditions are met: they are unable to provide a permanent lactation location because of operational, financial or space limitations; the temporary location is private and free from intrusion while an employee expresses milk; the temporary location is used only for lactation purposes while an employee expresses milk; the temporary location otherwise meets the requirements of state law concerning lactation accommodation.
Assembly Bill 2587 – Disability Compensation: Paid Family Leave
AB 2597 eliminates the seven-day waiting period for employees who need to take time off work to care for a seriously ill child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner or bond with a new child entering their lives either by birth, adoption, or foster care placement.
