NEW LAWS: More Order in the New Year

NEW LAWS: More Order in the New Year

S.E. Williams

Whether identified as, laws, regulations, statutes, enactments, acts, bills, decrees, edicts, bylaws, rules, rulings, ordinances, dictums, commands, orders, directives, proclamations, pronouncements, dictates or fiats, California has a lot of them and as of January 1, 2019, several more become effective. 

Following is a partial list of what will change in the coming year. The plethora of new laws address issues in a variety of areas that range from the minimum wage to the #MeToo movement, to employment, human trafficking, civil liberties and beyond. 

SB 3: Minimum Wage Increase

The California statewide minimum wage for nonexempt employees will increase to $12.00 for employers with 26 or more employees and $11.00 for employers with fewer than 26 employees.

Also, because executive, administrative, and professional employees must satisfy a salary threshold requirement to maintain their exempt status under California law—i.e., twice the state minimum wage for a 40-hour week regardless of how many hours he/she works—they also benefit when the minimum wage is increased because the salary threshold is also increased. As a result, effective January 1, 2019, the new threshold will be $960 per week, or $49,920 per year.

In addition, commissioned inside salespeople, who qualify as exempt when they earn more than 1.5 times the state minimum wage and their compensation represents commission earnings, will now need to earn more than $18 per hour to maintain their exempt status. 

SB 224: Personal Rights—Civil Liability and Enforcement 

The types of relationships that can be subject to a claim for sexual harassment is expanded to include lobbyists, elected officials, directors, producers, and investors.  It generally applies to work relationships where one person holds himself out as being able to help someone establish a business or professional relationship directly or with a third party.  It is now also unlawful to deny or aid, incite or conspire in the denial of rights of persons related to sexual harassment actions.

“Discipline and strict enforcement of the policies and the laws of the land may be seen as harsh implementations by many but viewed as a necessary tool by others. Some say that overflowing strictness borders on oppression and this often leads to resentment of the people. However, advocates of stern application of the rules debate that lenient measures result in uncooperative citizens who will never take authority seriously.”
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SB 820: Settlement of Sexual Harassment Claims  

Settlement agreements entered into after January 1, 2019, prevent disclosure of information pertaining to claims of sexual assault, sexual harassment, gender discrimination or related retaliation that have been filed in court or before an administrative agency. At the claimant’s request, the settlement agreement may include a provision that limits the disclosure of his/her identity or of facts that could lead to the discovery of the claimant’s identity.

SB 826: Female Directors on Corporate Boards 

Publicly-held domestic and foreign corporations with principal executive offices in California must have a minimum of one female director on their boards by the end of 2019. By the end of 2021, these corporations must meet the following minimums: (1) if it has six or more directors, the corporation must have a minimum of three female directors; (2) if it has five directors, the corporation must have a minimum of two female directors; (3) if it has four or fewer directors, the corporation must have at least one female director. The Secretary of State must also publish statistical information on its website concerning the gender composition of the Boards of Directors of publicly-held corporations.

SB 954: Disclosure Regarding Confidentiality Prior to Mediation 

An attorney representing a person participating in a mediation consultation or mediation, must provide his or her client with a printed disclosure regarding the confidentiality restrictions of mediation and obtain a printed acknowledgement signed by the client that the client understands the confidentiality restrictions. 

SB 970: Human Trafficking

By 2020, hotel and motel employers with 50 or more employees must provide at least 20 minutes of training on human trafficking awareness to employees who are likely to come into contact with victims of human trafficking.  These employees include reception employees, housekeeping employees, bell desk employees, and other employees who regularly interact with customers.  The training must occur within 6 months of hire and once every two years thereafter.

SB 1252: Copy of Payroll Records 

Modifies language of current California law which gives employees the right to inspect or copy their payroll records within 21 days of the request by clarifying that they have the right “to receive” a copy. Thus, upon request, the employer must now provide a copy of pay statements, as opposed to requiring the employee to copy payroll records themselves.

SB 1300: California Fair Employment and Housing Act (FEHA) Amendments 

FEHA amendments effective January 1, 2019, include a provision that makes it unlawful for an employer to require an employee to release a FEHA claim in exchange for a bonus, raise, or continued employment; employers are now liable for any kind of unlawful harassment by non-employees (not just for sexual harassment as under existing law) where the employer knew or should have known of the harassment and failed to take appropriate remedial action; and subjects employers to certain statements of legislative intent that makes it harder for employers to prevail on harassment claims (e.g. a legislative declaration that harassment cases are rarely appropriate for resolution on summary judgment, and a declaration that a single act of harassment may suffice to support a finding of a hostile work environment).

SB 1343: Sexual Harassment Training for All Employees and Small Employers 

Expands the requirement to provide at least two hours of sexual harassment prevention training to all supervisors and managers every 2 years, or within 6 months of an employee becoming a supervisor or manager to include employers with at least 5 employees. The amendment also requires employers to provide at least one hour of training to non-supervisory employees by January 1, 2020, and once every two years thereafter.

SB 1412: Criminal History Inquiries

The exception for employers who are required by federal or state law to inquire into an applicant’s or employee’s criminal history is tightened and will now only apply where an employer is required by law to inquire into a particular conviction or where an employer cannot by law hire someone with a particular conviction.  

SB 1976: Lactation Accommodation

Existing law requires employers to make reasonable efforts to provide a location other than a toilet stall to be used for lactation.  Effective January 1, 2019, that location must be something other than a bathroom, preferably a permanent location but that it can be a temporary location if (1) the employer is unable to provide a permanent location due to operational, financial, or space limitations; (2) the temporary location is private and free from intrusion while being used for lactation purposes; and (3) the temporary location is not used for other purposes while being used for lactation.  Also, an agricultural employer may comply by allowing an employee to use the air-conditioned cab of a tractor or truck.  

AB 1565: Contractor Liability

Clarifies a law enacted last year that made certain direct contractors performing work in California liable for unpaid wages by their subcontractors. The amendments to the law effective January 1, 2018 provide requirements that must be met for a direct contractor to withhold payments to a subcontractor for “disputed sums.”  In order to withhold payment, the contractor must specify in its contract with a subcontractor all items of information that will be requested of the subcontractor, such as payroll records and other information related to hours worked, etc.

AB1619: Statute of Limitations for Sexual Assault Claims 

Adds Section 340.16 to the Code of Civil Procedure which establishes the statute of limitations for filing a civil sexual assault action as ten years after the alleged assault, or three years after the plaintiff discovered or reasonably should have discovered that an injury or illness resulted from the alleged assault, whichever is later.

AB 1654: Private Attorneys General Act (PAGA) Relief for Unionized Construction Employers

Authorizes workers in the construction industry to waive remedies provided under PAGA and instead authorizes construction industry employers to resolve such disputes by entering into a collective bargaining agreement with a labor union.  

AB 1919: Anti-”Price Gouging” During Emergencies  

Landlords cannot raise rents by more than 10 percent within 30 days of a declared disaster. Effective January 1, 2018, the law is expanded to include new rentals that were not on the market at the time of the emergency within the types of goods and services that are price-controlled in the immediate aftermath of an emergency. The law also makes other related reforms to limit rent increases and evictions following an emergency.

 AB 2034: Human Trafficking

Employers who operate an inter-city passenger rail, light rail, or bus station are required by January 1, 2021 to provide at least 20 minutes of training on human trafficking awareness to all employees likely to encounter human trafficking victims.

AB 2282: Pay History  

Amends and clarifies California’s salary history ban. Employers need not provide pay scales except to applicants who have completed an initial interview and who, upon their request, have asked for this information. Neither current employees nor every applicant is entitled to pay scale information. Employers are expressly authorized to ask job applicants about their salary expectations for the desired position and can make compensation decisions based upon an employee’s current salary so long as any wage differential resulting from that compensation decision is justified by one or more specified factors, such as a seniority system or merit system.    

AB 2334: Occupational Injuries and Illness, Employer Reporting Requirements—Electronic Submission

The Division of Occupational Safety and Health is currently prohibited from issuing a citation more than six months after the “occurrence” of the violation. Effective January 1, 2018, an “occurrence” will continue until it is either corrected, the Division discovers the violation, or the duty to comply with the requirement that was violated no longer exists.

AB2338: Talent Agencies Required to Provide Sexual Harassment Education (AB 2338)

Talent agencies must provide educational materials on sexual harassment prevention, retaliation, and reporting resources to adult artists and minors aged 14 to 17 and their parents and legal guardians, within 90 days of retention. For adult model artists only, talent agencies are required to provide materials on nutrition and eating disorders. Talent agencies must retain records for three years showing that the required educational materials were provided. 

AB 2587: Disability Compensation—Paid Family Leave 

The seven-day waiting period for employees who are eligible for benefits under the Paid Family Leave Act is eliminated. The Paid Family Leave Act provides benefits to 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. Such benefits are also available to new parents who need time to bond with a new child entering their lives either by birth, adoption, or foster care placement. 

AB 2605: On-Call Rest Breaks/Petroleum Industry  

The law provides that unionized workers in safety sensitive positions in the petroleum industry may be required to remain on call during rest breaks.  This is an industry-specific exception to the California Supreme Court’s recent unfavorable ruling in Augustus v. ABM Security, which held that employees cannot be required to remain on call during rest breaks.

AB 2610: Meal Periods—Commercial Drivers 

In almost every industry employers are prohibited from requiring an employee to work more than five hours per day without providing a duty-free meal period of not less than thirty minutes. The meal period must commence before the end of the fifth hour of work. Effective January 1, 2018, commercial drivers employed by a motor carrier to can commence a meal period after six hours of work (versus five hours for most industries) when the driver is transporting nutrients and byproducts from a licensed commercial feed manufacturer to a customer located in a remote rural location; and (b) the regular rate of pay of the driver is no less than one and one-half times the state minimum wage and the driver receives overtime compensation in accordance with specific provisions of existing law. 

AB 2770: Privileged Communications—Communications by Former Employer, Sexual Harassment 

Under current law an employer is authorized to inform a prospective employer regarding whether he/she  would rehire a particular employee. Employers now have the expanded authorization to also communicate the following: (a) complaints of sexual harassment by an employee based on credible evidence; (b) communications between the employer and interested persons regarding a complaint of sexual harassment; (c) communications by the employer regarding whether its decision not to rehire an employee is based on the employer’s determination that the former employee engaged in sexual harassment.

AB 3109: Freedom to Testify About Criminal Conduct and Sexual Harassment 

Any provision in an agreement (i.e., employment agreement, arbitration agreement, or settlement agreement) that prevents a party to the agreement from testifying about criminal conduct or sexual harassment in an administrative, legislative, or judicial proceeding, when that party has been required to do so pursuant to a court order, subpoena, or written request from an administrative agency or the Legislature—is now invalid.

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