Employment Law Update 2019
The new year brings with it some significant changes and updates to the laws that California employers must be aware of. Below are a few of the highlights. If you have any questions about these or any other employment laws you should be adhering to, please feel free to contact any of our Labor and Employment attorneys.
Minimum wage. On January 1, 2019, minimum wage increased to $12/hr for employers with 26 or more employees and $11/hr for employers with 25 employees or less. If you have exempt employees, make sure that their salary is at least twice the new minimum wage.
#MeToo. Several laws concerning sexual harassment at the workplace have been enacted that in a nutshell impact employers as follows:
– Employers with 5 or more employees must now provide anti-harassment training (previously 50 or more) and employers must provide 2 hours of training to supervisory employees and at least one hour of training to non-supervisory employees by January 1, 2020 and once every two years thereafter. Training must include harassment based on gender identity (including transgender status), gender expression, and sexual orientation.
– It is now unlawful for an employer to require an employee to release a claim under the Fair Employment and Housing Act (FEHA) (e.g., discrimination, harassment, retaliation) in exchange for a bonus, raise, or continued employment.
– It is now unlawful to have any provision in a contract or settlement agreement that prevents a party to a contract from testifying about criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding.
– Settlement agreements cannot prevent disclosure of factual information pertaining to claims of sexual assault or harassment, gender discrimination or related retaliation that have been filed in court or before an administrative agency (EEOC or DFEH). Note that this law does not prohibit a provision that prevents disclosure of the amount of the settlement.
– Communications between employers and anyone with an interest in a sexual harassment complaint, such as victims and witnesses, are not liable for any resulting damage to the alleged harasser’s reputation, as long as the communication is made without malice.
– Former employers are not liable for resulting injury to former employee’s reputation if, in response to inquiries from prospective employers, the former employer indicates that it would not rehire the former employee based on a determination that the former employee engaged in sexual harassment so long as the statement is made without malice.
– It is now more difficult for employers to prevail on harassment claims because of certain statements of legislative intent amending FEHA, e.g., 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 hostile work environment.
– By the end of 2019, publicly held domestic or foreign corporations with principal executive offices in California must have a minimum of one female director on its board and by the end of 2021, these corporations must comply with the following: (1) if its number of directors is six or more, the corporation shall have a minimum of three female directors; (2) if the number of directors is five, the corporation shall have a minimum of two female directors; (3) if its number of directors is four or fewer, the corporation shall have a minimum of one female director.
– Lactation accommodation is amended to obligate employers to provide a location other than a bathroom (previously toilet stall) for lactation, and it should be a permanent location but it can be temporary 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. An agricultural employer may comply by allowing an employee to use the air-conditioned cab of a tractor or truck.
– If an employee requests to copy their payroll records, the employer must now provide the copies (within 21 days of the request).
Ag Industry specific. An updated version of Wage Order 14 has been issued and can be found here. As it explains, overtime now begins at 9.5 hours daily and 55 hours/week for those with 26 or more employees.
Court Rulings. The courts issued significant decisions for employers in 2018 including:
Dynamex Operations West, adopting the ABC test for determining whether a workers is an independent contractor or employee for obligations imposed by the applicable wage order, and making it the hiring entity’s burden to prove that the worker is free from direction and control, the worker is performing working outside the usual course of the hiring entity’s business, and the worker is engaged in an independently established trade, occupation or business of a different nature than that performed for the hiring entity to establish an independent contractor relationship.
Epic Systems, upholding mandatory class action waivers in employment (although yesterday in New Prime, Inc., the court held that all interstate transportation industry workers are exempt from the Federal Arbitration Act).
AHMC Healthcare, Inc., affirming that rounding time is lawful so long as it is neutral.
Troester v. Starbucks, rejecting the “de minimis” principle except possibly as to wage claims involving activities that are so irregular or brief that it would be unreasonable to require compensation.
Here are a few reminders from changes in 2018:
Background checks. Most employers are prohibited from inquiring about an applicant’s criminal history on a job application or any time before extending a conditional offer of employment. If an employer runs a criminal background check after a conditional offer of employment is made, the employer cannot consider, distribute or disseminate information about an arrest not resulting in in a conviction, referral to or participation in a pretrial or post trial diversion program and non-felony convictions for possession of marijuana that are two or more years old. If an employer intends to deny an applicant a position of employment solely or in part because of the conviction history, the employer must first perform an individualized assessment analyzing: whether the criminal history has a direct and adverse relationship with the specific duties of the job, the length of time since the conviction, completion of any sentencing and nature of the job being sought, whether considering the criminal convictions may have an adverse impact on individuals based on a protected category such as gender, race, national origin, etc.
Pay history. Don’t ask job applicants about compensation and benefits they earned at the prior position. You cannot rely on salary history to determine whether to offer employment to the applicant or what salary to offer.
Parental leave. Employers with 20 or more employees within a 75-mile radius must provide 12 weeks of unpaid leave to eligible employees (employed at least 12 months and worked at least 1,250 hours in the 12 month period preceding the leave) after the birth of a child, adoption or foster care placement.
Notice of rights to employees. Employers must provide written notice to new hires about the rights of victims of domestic violence, sexual assault, or stalking. The Labor Commissioner has posted a model notice here.