2019 has turned out to be a bumper year for employment legislation. The continued influence of the #MeToo movement can be seen in the number of bills meant to protect employees who have suffered harassment, discrimination, and retaliation. The California Legislature also targeted arbitration abuse, worker misclassification, and other wage and hour law violations. Below, we cover the top employment laws that were signed into law or vetoed this legislative session.
1. Bills Signed Into Law
AB 5 — Dynamex codification; independent contractors
- Codifies the Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 “ABC” test to determine whether a worker is an independent contractor or employee, with specified statutory exemptions. Under this test, an employer seeking to classify a worker as an independent contractor bears the burden of establishing:
(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, (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. . . .
- Applicable retroactively to all claims under Labor Code related to Wage Orders; prospectively to all other Labor Code claims. Applicable prospectively with respect to unemployment insurance.
- Contains numerous statutory exemptions, which apply retroactively. In these circumstances, apply the test laid out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.
- Prohibits employees from reclassifying existing employees as independent contractors.
More on AB 5 can be found in this blog post.
AB 9 — Increases Time to File Employment Discrimination Claims
- Gives employees more time to bring employment discrimination claims (including harassment and retaliation claims) by extending the deadline to file a verified complaint with DFEH for employment discrimination claims from one to three years.
- Date of verified complaint relates back to filing of intake form with the DFEH.
More on AB 9 can be found in this blog post.
AB 51 — Prohibiting Restrictions on FEHA/Labor Code Rights and Ending Forced Arbitration
- Effective January 1, 2020, prohibits an employer from requiring an employee to waive any right, forum, or procedure with respect to FEHA or Labor Code claims as a condition of employment, continued employment, or receipt of an employment-related benefit. (This prevents employer from requiring arbitration of FEHA and Labor Code claims.)
- Effective January 1, 2020, prohibits employer from retaliating, threatening, or discriminating against an employee for refusing to consent to the waiver of any such rights, forum, or procedures. Once in effect, employers will not be allowed to terminate or otherwise retaliate against employees for refusing to sign an arbitration agreement.
More on AB 51 can be found in this blog post.
AB 673 — Failure to Pay Wages: Penalties
- AB 673 provides that penalties for late payment of wages can be recovered by an employee as a statutory penalty through a Berman hearing (pursuant to Labor Code section 98).
- It would also allow the Labor Commissioner to recover a civil penalty for failure to pay wages on behalf of an employee in an independent civil action.
- Specifies that the employee can recover the statutory penalties through a Berman Hearing or civil penalties through the Labor Code Private Attorneys General Act of 2004 (“PAGA”) – but not both for the same violation.
AB 749 — Prohibits “No Rehire” Clauses
Adds Code of Civil Procedure § 1002.5, which provides that:
- Provides that an agreement to settle an employment dispute shall not contain a provision prohibiting, preventing, or otherwise restricting an employee who has made claims against an employer from obtaining future employment with the employer, or any parent company, subsidiary, division, affiliate, or contractor of the employer.
- Such a provision entered into on or after January 1, 2020 is void as a matter of law and against public policy.
- Does not apply if the employer has made a good-faith determination that the employee engaged in sexual harassment or sexual assault.
- Does not prevent an employer and employee from agreeing that an employee will resign their existing position as a condition of settlement.
More on AB 749 can be found in this blog post.
AB 1223 — Living Organ Donation
Amends Labor Code § 1510 to provide an additional 30 business days of unpaid leave in a one-year period to an organ donor for donation-related leave.
Section 1510 already provides for:
- 30 business days of paid leave to organ donors and 5 business days of paid leave to bone marrow donors for donation-related leave.
- Group health insurance to be maintained as if the employee is actively at work.
- Said leave not to be considered a break in service in calculating the employee’s right to salary adjustments, sick leave, vacation, paid time off, annual leave, or seniority.
AB 1748 — Changes to CFRA Re: Airline Flight Crews
- Amends the CFRA (Gov’t Code § 12945.2) so that the 1,250 hours of service requirement as applied to flight deck and cabin crew members is defined in a manner consistent with the FMLA.
- Authorizes the Department of Fair Employment and Housing to adopt regulations to calculate leave available to flight crew employees under these provisions.
SB 142 — Workplace Lactation Accommodations
- Amends Labor Code § 1030 to provide that every employer “shall provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child each time the employee has need to express milk.” (Italicized portion added to existing law.)
- Amends Labor Code § 1031, which provides for a lactation room or other space to express milk as follows:
- Requires that the lactation space:
- Not be a bathroom and be in close proximity to the employee’s work area, shielded from view, and free from intrusion while the employee is lactating.
- Be safe, clean, and free of hazardous materials.
- Contain a surface to place a breast pump and personal items.
- Contain a place to sit.
- Have access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump.
- Employers must provide access to a sink with running water and a refrigerator (or cooling device) suitable for storing milk in close proximity to the employee’s workspace.
- Where a multipurpose room is used for lactation, the use of the room for lactation shall take precedence over other uses during that time.
- Allows employers in multitenant/multiemployer locations to share space.
- Provides undue hardship exemption for employers with fewer than 50 employees; removes said exemption for any other employer.
- Requires that the lactation space:
- Amends Labor Code § 1033, which:
- Provides that denial of reasonable break time or space to express milk is deemed a failure to comply under Section 226.7; and allowing an employee to file a complaint with the Labor Commissioner pursuant to Section 98.
- Prohibits an employer from discharging, discriminating, or retaliating against an employee for exercising their rights under this chapter, and allowing them to file a complaint with the Labor Commissioner pursuant to Labor Code § 98.7.
- Provides for the Labor Code to issue citations and impose civil penalties of $100 for each day that an employee is denied reasonable break time or adequate space to express milk.
- Adds Section 1034 of the Labor Code, which requires that employers develop and implement a lactation accommodation policy.
More on SB 142 can be found in this blog post.
SB 188 — The CROWN Act
Amends the FEHA’s definition section, Gov’t Code § 12926 to:
- Define “race” as being “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”
- Provide that “‘protective hairstyles’ includes, but is not limited to, such hairstyles as braids, locks, and twists.”
More on SB 188 can be found in this blog post.
SB 530 — Construction Industry: Discrimination and Harassment Prevention
- Authorizes certain construction employers to satisfy sexual harassment training and education requirements by demonstrating that the employee has undergone the training within the past two years under specified circumstances.
- Provides that the DLSE shall develop recommendations for an industry-specific harassment and discrimination prevention policy and training standard for use by employers in the construction industry.
- Provides for the DLSE to convene an advisory committee to assist in developing this standard.
- Allows an apprenticeship program to provide prevention of harassment programs for journey-level workers and maintain records of the training.
SB 707 — The Forced Arbitration Accountability Act
- Provides legal recourse in situations where employers do not pay for or participate in the arbitration process, including allowing an employee to proceed in court or continue in arbitration.
- Imposes mandatory monetary sanctions on any drafting party who fails to timely pay arbitration costs and fees, and permits the imposition of additional evidentiary, terminating, or contempt sanctions, as the court or arbitrator sees fit.
- Requires arbitration companies to begin reporting demographic data relative to ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators as self-reported by the arbitrators.
More on SB 707 can be found in this blog post.
SB 778 — Sexual Harassment Training Requirements
Extends by one year, to January 1, 2021, the deadline for employers to comply with the FEHA’s requirement that an employer having five or more employees shall provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of training to all nonsupervisory employees in California.
2. Vetoed Bills
AB 403 — Labor Code §§ 98.7 and 1102.5 Amendments
Would have extended the statute of limitations for retaliation claims under the Labor Code, and allowed for reasonable attorney’s fees to a plaintiff who brings a successful Labor Code § 1102.5 (whistleblower retaliation) claim.
AB 500 — School and Community College Employees: Paid Maternity Leave
Would have required school districts, charter schools, and community colleges to provide at least 6 weeks of paid leave to academic or certificated employees who are absent from duty because of pregnancy, miscarriage, childbirth, and recovery from those conditions.
AB 589 — Immigrant Workers Protections
- Would have added Labor Code § 1019.3, imposing criminal and civil penalties on employers who knowingly take or destroy passports, identification, or other immigration documents in the course of trafficking, peonage, slavery, involuntary servitude, or a coercive labor practice.
- Would have required posted notice that withholding immigration documents is a crime, and other information.
- Would have added Labor Code § 1019.5, requiring employers to provide employees with a “Worker’s Bill of Rights,” to be developed by the Department of Industrial Relations, and to maintain written acknowledgements of receipt.
AB 1478 — Eliminating Exhaustion with LWDA for Certain Claims
Would have amended Labor Code §§ 230 and 230.1 to provide that an employee can bring a private civil right of action—and obtain attorneys’ fees—on claims for discrimination/retaliation in violation of these statutes. (Labor Code § 230 prohibits discrimination against employees who are the victims of domestic violence, sexual assault, stalking, or other crimes, and who take time off work to appear in court, or to obtain legal relief. Labor Code § 230.1 requires that employers with 25 or more employees permit time off to victims of domestic violence, sexual assault, or stalking for the purposes of seeking medical or psychological treatment, safety planning, or related services/treatment.)
SB 218 — Local Government Discrimination Enforcement
Would have amended the Fair Employment and Housing Act to allow local governments to enact local anti-discrimination ordinances related to employment, with local agency enforcement.
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Photo credit: “The Legislative Office Building, Sacramento” by Tony Webster is licensed under CC BY-SA 2.0
