California Employment Law Update

“Bill Bites” – More New Labor and Employment Laws in California

In addition to the #MeToo inspired legislation, which we covered in a recent blog post, Governor Brown signed several other pieces of legislation amending existing laws and imposing new requirements regarding employment. Here are our “Bill Bites,” which provide a snapshot of the new laws

  • PAGA Does Not Apply to Construction Workers: Assembly Bill 1654 bars employees in the construction industry who are subject to a collective bargaining agreement with a grievance procedure from bringing claims under the Private Attorneys General Act until when the collective bargaining agreement expires or January 1, 2028, whichever is earlier.
  • Reasonable Efforts Required to Provide Location for Expressing Breast Milk Other Than in a Bathroom: Assembly Bill 1976 requires that employers make reasonable efforts to provide an employee with the use of a room or other location to express breast milk, other than in a bathroom. The previous law required reasonable efforts to provide a location other than in a toilet stall.
  • Employers Can Ask Applicants About Salary Expectations: Assembly Bill 2282 adds definitions to the law prohibiting an employer from relying on salary history in determining whether to hire an employee, and clarifies that an employer can ask an applicant regarding his/her expectations of salary for the position.
  • State’s Paid Family Leave Extended to Active Duty or Family Member’s Active Duty: Senate Bill 1123 expands the scope of the California’s family temporary disability insurance program to include time off to participate in a qualifying exigency related to covered active duty or a family member’s active duty.
  • Right to Inspect and Receive Wage Records: Senate Bill 1252 clarifies that Labor Code Section 226’s right to inspect wage records also means that the employee has a right to “receive” those records.

Governor Brown Signs Slew Of #MeToo-Inspired Laws

This weekend Governor Brown signed many laws that were authored and gained traction in response to the #MeToo movement:

New Restrictions On Confidentiality Of Sexual Harassment/Discrimination Settlements

Senate Bill 820 prohibits confidentiality or non-disclosure provisions in settlement agreements that prevent the disclosure of factual information involving allegations of sexual misconduct – unless the party alleging the harm desires confidentiality language to protect his or her identity. The bill, which adds Section 1001 to the California Code of Civil Procedure, renders void as against public policy any provision in a settlement agreement that prevents the disclosure of factual information regarding sexual assault, sexual harassment (as defined in Section 51.9 of the Civil Code), workplace harassment or discrimination based on sex (as described in Section 12940 of the Government Code), along with failure to prevent, or retaliation for reporting, harassment or discrimination based on sex.

The law does not void confidentiality provisions that prevent disclosure of the amount paid in settlement of a claim. Importantly, the new law also contemplates a cause of action for civil damages for failing to comply with the new requirements.

New Restrictions Regarding Preventing Future Testimony

Assembly Bill 3109, which adds Section 1670.11 to the Civil Code, voids provisions in settlements that would prevent someone from testifying about alleged criminal conduct or alleged sexual harassment in an administrative, legislative, or judicial proceeding where the individual is requested to attend the proceeding pursuant to a court order, subpoena or written request from an administrative agency or the legislature.

New Requirements For Sexual Harassment Workplace Training

Senate Bill 1343 radically changes the requirements for workplace sexual harassment prevention training in the #MeToo era. The bill amends California Government Code Section 12950.1 and changes several workplace training requirements, including the following:

  • Training required by small businesses: Employers with at least 5 employees are now required to provide training to their employees (the bar was lowered significantly from the previous 50-employee threshold);
  • Training is no longer limited to supervisory employees: Employers are now required to provide sexual harassment prevention training to all employees, including non-supervisory employees. Specifically, one hour of classroom or other effective interactive training and education regarding sexual harassment must be provided to all non-supervisory employees, and two hours of the same to supervisory employees.
  • Training required within six months of job commencement: Employees are currently required to undergo training within six months of starting their jobs. Seasonal or temporary employees (or any employees that will be employed less than six months) need to undergo training within 30 days or 100 hours, whichever comes first.

The new bill will force many employers to overhaul their current training protocols in light of the new requirements. The bill also directs the DFEH to create online training modules that employees could take to fulfill the new requirements. However, if employers simply require employees to “comply” with the new law by clicking through government-supplied online training, that may not deliver the right message regarding the employer’s commitment to prevent and remedy workplace harassment. Employers should consider carefully how and what training to provide to all of their employees in order to ensure that the training is perceived by employees to be genuine. As the EEOC noted in its report on sexual harassment published in 2016, an “organization’s commitment to a harassment-free workplace must not be based on a compliance mindset, and instead must be part of an overall diversity and inclusion strategy.”

“Hostile Work Environment” Is Redefined; Release/Non Disparagement Agreements as a Condition of Employment or Promotion Are Banned

Senate Bill 1300 decrees that a single incident of harassing conduct is sufficient to create a triable issue of hostile work environment if the conduct interfered with a plaintiff’s work performance or otherwise created an intimidating, hostile, or offensive work environment. The law also explicitly rejects the prior standard for hostile work environment set by the 9th Circuit in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), an opinion written by former Judge Alex Kozinski who retired from the court in 2017 amidst allegations of improper sexual conduct while on the bench.

The law also makes it unlawful for an employer to require an individual to sign a release or non-disparagement agreement that purports to deny the employee the right to disclose information about unlawful acts in the workplace in exchange for a raise, bonus, or continued employment. The prohibition does not apply to a release or non-disparagement provision in a settlement that is negotiated with respect to alleged claims wherein the employee is represented by counsel.

Corporate Boards Are Required To Include Women

Senate Bill 826 requires that, by the end of 2019, all California publicly held companies have a minimum of one female on their board of directors; and by the end of 2021 a minimum of 2 female directors if 5 total directors, or 3 female directors if 6 or more total directors. Failure to comply will result in fines ($100,000 for the first violation and $300,000 for subsequent violations).

Sexual Harassment Claims Permitted Against a Defendant Who Holds Himself/Herself Out As Being Able to Help Plaintiff

Aimed at preventing directors and producers from taking advantage of young talent looking for a break, Senate Bill 224 creates a cause of action for sexual harassment where

  • Plaintiff proves there is a business, service, or professional relationship between plaintiff and defendant, or defendant holds himself or herself out as being able to help plaintiff establish a business, service, or professional relationship with the defendant or a third party;
  • Defendant has made sexual advances, solicitations, sexual requests, demands for sexual compliance, or other verbal, visual, or physical conduct of a sexual or hostile nature based on gender that were unwelcome and pervasive or severe; and
  • Plaintiff suffered or will suffer economic loss or personal injury.

Talent Agencies Required to Provide Talent with Educational Materials on Sexual Harassment

Assembly Bill 2338 requires that a talent agency, as a condition of the requirement that it be licensed with the Labor Commissioner, provide educational materials on sex harassment prevention, retaliation, and reporting resources to its talent (the artists). Failure to comply will result in $100 fines for each violation.

Human Trafficking Awareness Training Required of Certain Employees

Senate Bill 970 requires that employees who are likely to interact or come into contact with victims of human trafficking (e.g., those who have recurring interactions with the public such as receptionists, housekeepers, and drivers) go through 20 minutes of classroom or other interactive training regarding human trafficking awareness.

 

California Imposes New Mediation Disclosure Requirement On Attorneys

Earlier this month, Governor Brown signed new legislation (SB 954), which requires lawyers to provide their clients with a printed disclosure describing the confidentiality restrictions applicable to mediation.  This disclosure must be provided to a client as soon as reasonably possible before the client agrees to participate in a mediation.  Lawyers also will be required to obtain a printed acknowledgement, signed by their client, stating that the client has read and understands the confidentiality restrictions.

The bill was introduced in response to the legislature’s concern that clients lacked awareness of mediation confidentiality restrictions, especially with regard to communications, admissions, and writings connected to mediation that may be relevant for a possible malpractice suit against the attorney by the client.  The new law, which goes into effect on January 1, 2019, will add Section 1129 to the Evidence Code. Section 1129 contains the text of a sample disclosure that can be used to comply with the disclosure requirement.  In the interests of protecting the client, a lawyer’s failure to comply with the disclosure requirement will not serve as a basis to set aside an agreement reached as a result of the mediation.  (Sec. 1129(e)).

However, attorneys who fail to comply with the disclosure requirement risk discipline from the State Bar. An amendment to Section 1122(a)(3) makes any communications, documents, or writings related to compliance with Section 1129 fair game to be used in a disciplinary proceeding against an attorney who fails to comply with the disclosure requirement.

With the January 1, 2019 effective date of the new law fast approaching, California lawyers who regularly engage in mediation should begin making it their common practice to disclose, in writing, the mediation confidentiality restrictions and obtain written acknowledgement from their clients of the same.

Could “CEO Action Pledge” Lead to Unintended Consequences?

The #MeToo movement has propelled employers across the U.S. to look not only at their policies for dealing with discrimination and harassment but also at their efforts to hire and promote employees from traditionally underrepresented groups. More than 450 CEOs and presidents across 85 industries have signed the CEO Action for Diversity & Inclusion, a pledge designed to promote diversity in the workplace. In an expert analysis for Law360, Anthony Oncidi looks at the potential implications of this pledge on employment litigation: https://lnkd.in/dV4GZij

 

 

September 2018 California Employment Law Notes

We invite you to review our newly-posted September 2018 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

Social Media Mania — Be Careful Out There!

Employers are increasingly turning to social networking sites to find additional information about candidates. In fact, recent articles suggest that an applicant’s failure to have a social media presence is viewed by many employers as a decided negative, and a 2006 CareerBuilder survey found that 70 percent of employers use social networking sites to research candidates, a number that certainly has gone up since the survey was conducted.

While employers are understandably interested in getting as much useful information as they can about candidates, they should also be aware of the restrictions California law imposes on access and use of social media. Since 2013, California Labor Code Section 980 has prohibited employers from requiring or requesting an employee or applicant to disclose a username or password for the purpose of accessing the employee’s or applicant’s personal social media. See Cal. Employment Law Update New California Law Protects Employee Use of Social Media” (Sept. 28, 2012) for a discussion of the statute.

Employers also need to be alert to the fact that in viewing an applicant’s public social media, they may obtain information that they are prohibited from considering (e.g., an applicant’s race, age or nationality, previous criminal convictions, possible pregnancy status, disabilities, etc.).

As social media grows ever larger and more popular, employer use of such sites in assessing job applicants will only increase. While social media may provide a fertile source of information, employers must remain alert to comply with California law and not unwittingly obtain or use information that they may not permissibly use.

Do California’s New Restrictions on Independent Contractors Apply Retroactively?

On May 1, we reported on the California Supreme Court’s opinion in Dynamex Operations West, Inc. v. Superior Court, in which the Supreme Court set forth the standard for determining if a worker may properly be classified as an employee or independent contractor. See  Cal. Employment Law Blog (May 1, 2018). An issue that the Court did not address is whether its opinion should be applied retroactively or prospectively only. To the frustration of many, on June 20 the Court itself denied a petition for rehearing that asked the Court to consider that very issue.

Despite the Supreme Court’s unwillingness to take up the issue, at least for now, it’s an issue that the lower courts are being asked to determine now on a daily basis. One of the first such decisions came from an Orange County Superior Court judge who ruled that Dynamex should be applied both prospectively and retrospectively. Johnson v. Imperial Showgirls, Orange Cty. Super. Ct. (Aug. 5, 2015 ).

In Johnson, a class of exotic dancers alleged they had been misclassified as independent contractors and were owed additional compensation as employees. A key issue was whether Dynamex should be applied retrospectively. If so, it would be used to determine if the dancers had been misclassified; if not, then Dynamex could be used only to determine the dancers’ current status.

The general rule is that judicial decisions are given retroactive effect, and the trial court pointed to that rule in reaching its decision. The court also noted that the Supreme Court could have, but chose not to, make a statement that its decision applied only prospectively. In addition, the court noted that the Supreme Court had denied petitions for rehearing and refused any efforts to reconsider or amend its original decision. This, in the trial court’s view, provided additional support for its conclusion that, in line with the usual rule, Dynamex is to be applied retrospectively.

We will continue to monitor decisions on this issue. In the meantime, California employers should continue to use Dynamex to analyze any existing independent contractor arrangements regardless of when they were formed.

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