by Shannon Jenkins, Esq., Employment Law Partner & Cindy Boun, Esq., Associate Attorney, TLD Law
Not surprisingly, California has a host of new employment laws set to take effect in 2020 and into the future. While some of these are, or are expected to be, challenged in the Courts, the prudent business owner will take note. Here is a re-cap of a few which may impact your company.
State Minimum Wage Increases
Schedule for California Minimum Wage Rate
SB 188 Discrimination and Hairstyles
||Minimum Wage for Employers with 26 or More Employees
||Minimum Wage for Employers with 25 or Fewer Employees
|January 1, 2020
|January 1, 2021
|January 1, 2022
|January 1, 2023
This bill is effective January 1, 2020 and provides that the definition of race for anti-discrimination and anti-harassment purposes also include traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. The Legislative findings are informative:
(a)The history of our nation is riddled with laws and societal norms that equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.
(b) This idea also permeated societal understanding of professionalism. Professionalism was, and still is, closely linked to European features and mannerisms, which entails that those who do not naturally fall into Eurocentric norms must alter their appearances, sometimes drastically and permanently, in order to be deemed professional.
(c) Despite the great strides American society and laws have made to reverse the racist ideology that Black traits are inferior, hair remains a rampant source of racial discrimination with serious economic and health consequences, especially for Black individuals.
(d) Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.
(e) Federal courts accept that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on race, and therefore protects against discrimination against afros. However, the courts do not understand that afros are not the only natural presentation of Black hair. Black hair can also be naturally presented in braids, twists, and locks.
(f) In a society in which hair has historically been one of many determining factors of a person’s race, and whether they were a second class citizen, hair today remains a proxy for race. Therefore, hair discrimination targeting hairstyles associated with race is racial discrimination.
(g) Acting in accordance with the constitutional values of fairness, equity, and opportunity for all, the Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.
AB 9 Statute of Limitations for FEHA Claims extended from 1 year to 3 years
In the past, if an employee wanted to sue a Practice for harassment, discrimination under California’s Fair Employment and Housing Act (“FEHA”), that employee had to first “exhaust administrative remedies” by filing a complaint with the Department of Fair Employment and Housing (“DFEH”) within 1 year of the alleged discriminatory act, and then the employee had 1 year from the date of the DFEH’s issuance of a right to sue notice to file a lawsuit. Many employers were able to get untimely claims dismissed. This bill expands that initial 1 year filing requirement to 3 years, the end result of which is that employers will now be forced to defend up-to-4-year-old stale claims. This bill is effective January 1, 2020.
SB 778 Sexual Harassment Training Clean-Up Legislation
This bill clarifies that employers with 5 or more employees (who have provided mandatory sexual harassment training in 2019) have until January 1, 2021 to provide 2 hours of training to supervisors and 1 hour of training to non-supervisory employees. This bill is currently effective.
AB 5 The Independent Contractor/Employee “ABC” Test
In a way, this new legislation is not a surprise. In 2018, the California Supreme Court set out the “ABC” test for determining whether a worker is an employee or an independent contractor in California in the case Dynamex v. Superior Court
“A” That the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and
“B” That the worker performs work that is outside the usual course of the hiring entity’s business; and
“C” That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed.
This is an extremely narrow test; most worker/workplace relationships will not qualify to retain independent contractor status. Many times they are prongs “B” and “C” where the problem lies. There are some pertinent exemptions from this test, including veterinarians. This bill is effective January 1, 2020.
AB 51 Employment Arbitration Agreements
This bill adds California Labor Code section 432.6 and generally prohibits a Practice from requiring any applicant for employment or any employee to waive any right, forum, or procedure (meaning forced arbitration) for a violation of any provision of FEHA or other specific statutes governing employment as a condition of employment, continued employment or the receipt of any employment-related benefit. The bill also prohibits an employer from threatening, retaliating or discriminating against or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. This bill does not apply to Arbitration Agreements that are “otherwise enforceable under the Federal Arbitration Act (meaning the business is engaged in interstate commerce) or post-dispute settlement agreements or negotiated severance agreements. This bill is effective January 1, 2020.
SB 707 Failure to Pay Fees to Initiate Arbitration
Even if your Practice is able to establish that it has a lawfully-drafted Arbitration Agreement, this law provides another potential barrier to enforcement by stating that if an employer fails to pay required arbitration fees (either associated with initiation of the arbitration or during the pendency of the arbitration) within 30 days of the due date, the employer is in material breach of the arbitration agreement and the employee may either proceed with a claim in Court or obtain an order requiring the employer to pay the arbitration fees and proceed in arbitration, along with an order imposing various forms of sanctions (monetary, issue, evidentiary, terminating). This bill is effective January 1, 2020.
AB 749 Settlement Agreements containing No-Hire Provisions
This bill prohibits a settlement agreement entered into on or after January 1, 2020 from containing a provision whereby the departing employee is prohibited from ever applying for a job with the employer and, if they do, the employer can summarily reject the application. Now, employees cannot be restricted from obtaining future employment with that employer. However, a no-rehire provision is allowed if the employer found, in good faith, that the settling employee committed sexual harassment or sexual assault. This bill is effective January 1, 2020.
SB 142 Increased Lactation Accommodation Requirements
In addition to already-existing lactation accommodation requirements, effective January 1, 2020, this bill requires an employer to provide a lactation room or location that includes prescribed features including, among other things, to provide access to a sink and refrigerator in close proximity to the employee’s workspace. The bill deems denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with State law. It also prohibits an employer from discharging, or in any other manner discriminating or retaliating against, an employee for exercising or attempting to exercise these rights. Employers with fewer than 50 employees are authorized to seek an exemption from the requirements of these provisions if it demonstrates that the requirement posed an undue hardship by causing the employer significant difficulty or expense however it would still require that employer to make a reasonable effort to provide a place for an employee to express milk in private, as specified. Employers must also develop and implement a policy regarding lactation accommodation and make it available to employees.
AB 25 Amendments to the California Consumer Privacy Act
This bill amends the 2018 California Consumer Privacy Act (CCPA), which grants consumers various rights with regard to their personal information held by businesses, including the right to request a business to disclose specific pieces of personal information it has collected and to have information held by that business deleted. AB 25 exempts until January 1, 2021, all of the CCPA’s requirements pertaining to employee data (information collected from a natural person by a business in the course of the natural person acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business), except for two
: Reasonable security measures to safeguard the data and disclosure of the categories of personal information collected about employees and job applicants and the business purposes for which the information is used.
AB 1223 Additional Organ Donation Leave
California employers with 15 or more employees already have a legal obligation to provide an employee with up to 30 days of paid leave per year for purposes of organ donation. This bill requires a private or public employer to grant an employee an additional unpaid leave of absence, not exceeding 30 business days in a one-year period, for the purpose of organ donation. This bill is effective January 1, 2020.
Red Flag Tips
~It is time for an Employee Handbook re-fresh.
~Complete your sexual harassment training.
~Make sure your job applications, offer letters and employment contracts are up-to-date.
If you have any questions or comments, please contact us!