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  • The Legislative Office Building in Sacramento

    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 Claim

    • 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.

  • hands signing an employment agreement

    Update 1/7/2020: A federal district court has issued a temporary restraining order blocking enforcement of AB 51. A hearing is set in the case for January 10, 2020.

    Update 10/10/2019: Governor Newsom signed AB 51 into law today.

    The California Legislature is trying for a third time to protect workers from being forced to sign arbitration agreements. It passed Assembly Bill 51 (“AB 51”), which, if it becomes law, will: (1) prohibit employers from conditioning employment, continued employment, or any employment-related benefit on the applicant or employee waiving rights under the Fair Employment and Housing Act (“FEHA”) or the Labor Code, including the right to proceed in civil court; (2) prohibit employers from retaliating against an applicant or employee for refusing to waive employment-related rights; and (3) deem violations of these provisions as “unlawful employment practices” under the FEHA.

    AB 51 follows in the footsteps of two nearly identical bills that then Governor Jerry Brown vetoed in 2015 and 2018. In his September 2018 veto message for Assembly Bill 3080 (“AB 3080”), Governor Brown expressed his belief that the bill ran afoul of U.S. Supreme Court precedent and “plainly violate[d] federal law.” He believed that California was preempted from interfering with the formation of arbitration agreements.

    Proponents of the bill disagree with Governor Brown’s analysis and argue that AB 51 will survive judicial scrutiny. As reflected in AB 51’s bill analysis, they argue that it “simply gives the worker the option of whether or not to form the contract in first place,” and “nothing in AB 51 selectively calls out arbitration contracts . . . .”[1] They further contend that “[a]ll the bill does is say that an employee cannot be forced to sign an arbitration agreement, and if the employee elects not to, the employee cannot be retaliated against.”[2]

  • hands signing an employment agreement

    Over the past two years, we have followed the many bills that the California legislature has passed with the momentum of the #MeToo and #TimesUp movements.  From last year’s omnibus sexual harassment bill (SB 1300), to the prohibition of confidentiality provisions in settlement agreements involving sexual harassment claims (SB 820), to the increase in time that employees would have to file claims under the Fair Employment and Housing Act (AB 9), these bills have been designed to increase protections for California workers.

    Assembly Bill 749 (“AB 749”), introduced by Assemblymembers Mark Stone, Lorena Gonzalez, and Eloise Reyes, is another #MeToo-inspired bill meant to protect employees. It tackles “no rehire” provisions that are frequently found in settlement agreements. Employees who settle their claims against their employers are often required to agree that they will never again work for the same employer or its related entities. Such provisions are punitive and can have a devastating impact on an employee, forcing some to leave their field or severely limiting their future employment prospects. The use of “no rehire” provisions often leads to the perverse outcome where victimized employees are forced out of their jobs while harassers continue to be employed.[1]

    AB 749, signed into law by Governor Newsom on October 12, 2019, prohibits and invalidates all provisions in settlement agreements that prevent workers from obtaining future employment with the settling employer or its affiliated companies. Through newly created Code of Civil Procedure section 1002.5, it makes such provisions in agreements entered into on or after January 1, 2020 void as a matter of law and against public policy. The bill is co-sponsored by the California Employment Lawyers Association and Equal Rights Advocates.

  • Bottles of pumped milk

    Update 10/10/2019: Governor Newsom signed SB 142 into law today.

    On September 11, 2019, the California Legislature passed Senate Bill 142 (“SB 142”), which would significantly expand lactation accommodations and protections for working mothers. Among other things, SB 142 would: (1) clarify employer obligations to provide breaks to nursing/pumping mothers; (2) require employers to provide safe and sanitary lactation rooms for employees wishing to express milk; (3) increase penalties for non-compliance; (4) prohibit discrimination and retaliation against employees who exercise or attempt to exercise their right to lactation accommodations; and (5) require that employers implement lactation accommodation policies.

    SB 142 comes on the heels of last year’s Assembly Bill 1976 (“AB 1976”). AB 1976 required that employers “make reasonable efforts” to provide a lactation room other than a bathroom. Under SB 142, employers must provide such a room, subject to a limited undue hardship exemption.[1]

    Given Governor Gavin Newsom’s support for the expansion of paid family leave from six weeks to eight weeks, and his championing of increased worker protections, we are optimistic that he will sign SB 142 into law.

    WHAT DOES SB 142 DO?

    SB 142, introduced by Senator Scott Weiner (D-San Francisco) and principally co-authored by Assemblymember Lorena Gonzalez (D-San Diego), amends Labor Code sections 1030, 1031, and 1033 and adds section 1034. The amendments and additions, which are discussed below, significantly expand lactation accommodations and protections for working mothers.

  • The September 2019 issue of the California Lawyers Association’s Labor & Employment Law Review featured Ramit Mizrahi’s final message as Chair of the Labor and Employment Law Section. In her column, Ramit invites readers to reflect on their lives and life choices, and thanks those who made her role as Section Chair possible.

    CLA September Message from the Chair

  • Various workers standing together

    Governor Newsom has signed into law Assembly Bill 5 (“AB 5”), a landmark bill that will give millions of California workers job benefits and protections by limiting the circumstances under which employers can classify them as independent contractors. Unlike contractors, employees receive broad protections and benefits under California law—including Labor Code protections (minimum wage, overtime, meal and rest breaks, sick pay), unemployment and disability insurance, workers’ compensation, anti-discrimination law protections, and leave law rights.

    1.       What does AB 5 do?

    AB 5, authored by Assemblywoman Lorena Gonzalez (D-San Diego), codifies and expands the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”). In Dynamex, the Supreme Court reaffirmed that all California workers performing services for hire are presumptively employees, and held that the proper test in determining whether a worker should be classified as an independent contractor for purposes of California wage orders is the “ABC” test. 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 . . . .

    (Id. at 955-56.)

    AB 5 extends the ABC test to apply to all claims brought under the Labor Code (not just to claims related to wage orders) and to claims for unemployment insurance. The bill has a number of carve-outs, discussed below.

  • podium

    On October 12, 2019, Ramit Mizrahi will be presenting at the California Lawyers Association’s 2019 Annual Meeting. She will be providing a California employment law legislative update, covering the new laws passed this year.

    Date and time: October 12, 2019, 8:45 a.m. – 9:45 a.m.

    Location: Monterey Conference Center, Portola Hotel & Spa at Monterey Bay, CA

    Additional information can be found on the CLA 2019 Annual Meeting page.

  • Update 10/10/2019: Governor Newsom signed AB 9 into law today. AB 9 increases the time to file claims under the Fair Employment and Housing Act, Pregnancy Disability Leave Law, and California Family Rights Act from one year to three years. However, it does not revive previously lapsed claims.

    Last year, we outlined several bills that California legislators put forth in response to the momentum of the #MeToo and #TimesUp movements. While Governor Brown signed many of these bills into law, he vetoed several important ones. Among the legislation he vetoed was AB 1870, a bill that would have given more time to employees to file employment discrimination claims. Given AB 1870’s broad support, was resuscitated as AB 9. Like its predecessor, AB 9 sought to extend from one to three years the time that employees have to file an administrative complaint with the Department of Fair Employment and Housing—the first step before being able to file a lawsuit.

    Before delving into AB 9 and its impact, it is helpful to start with an overview of statutes of limitations and California’s administrative filing requirements for employment law claims.

  • Applause

    Ramit Mizrahi has been recognized in U.S News & World Report’s 2020 Edition of The Best Lawyers in America© for her work in employment law representing individuals.

    Ms. Mizrahi has also been selected to the 2020 Southern California Super Lawyers® list, again for her work in employment law representing individuals.

    Both honors reflect peer recognition of excellence in practice.

    This marks the eighth year that Ms. Mizrahi has been recognized by Super Lawyers®, including having previously been distinguished as being among the top 100 Rising Stars and top 50 Rising Stars women for three consecutive years.

    Ms. Mizrahi and the Mizrahi Law team remain committed to serving as tenacious advocates for the firm’s clients while working to build collegiality and community in the legal profession.

  • pregnant worker contemplating her leave

    Introduction — California Protections for Pregnant Workers

    California law offers strong protections to employees who have been subjected to discrimination and harassment. Despite that, pregnancy discrimination and retaliation for standing up to discrimination remain rampant. Once employees have been wrongfully terminated, they often know to reach out to seek legal help immediately. But current employees are often more confused about what to do. They may rightfully feel afraid about reporting unlawful conduct to Human Resources, particularly when the conduct is coming from their immediate supervisor. What if it just makes the situation worse? Indeed, far too often, Human Resources is more concerned with protecting the company than with taking the immediate corrective action that the law requires of them. A retaliating supervisor can make a job feel like death by 1,000 paper cuts: scrutinizing, criticizing, and nit-picking every action by an employee, making them feel ostracized or humiliating them in front of their peers, and leaving them in a constant state of fear and anxiety. Indeed, if true, the experiences of the Google employee whose memo went viral demonstrate the myriad ways that a company can fail its employees and allow discrimination and retaliation to persist.

    An employee’s best hope is to be fully informed about their legal rights. They can then decide whether to report internally, to file a claim with one of the government agencies that investigates and enforces anti-discrimination laws, to seek private counsel to negotiate an exit or to file suit, or to make a conscious decision to wait (being mindful that if a person waits too long, they may forever lose their ability to assert the claim–a post on this topic will be forthcoming). To that end, I provide the following brief overview of employment protections for California workers subjected to pregnancy discrimination and retaliation. Note that many of these topics have been covered in greater depth elsewhere throughout the blog. (The archive categories are listed to the right of this post.)

    1.       Discrimination

    The Fair Employment and Housing Act (“FEHA”) prohibits discrimination against employees because they belong to a protected category (sex, pregnancy, race, religion, disability, etc.). This includes refusing to hire or promote employees, terminating them, or discriminating against them in compensation or in terms, conditions, or privileges of employment.

    2.       Harassment

    The FEHA further prohibits harassment against employees, applicants, unpaid interns or volunteers, and contractors because of their protected status. Employers are strictly liable for harassment by a supervisor. They are liable for harassment by non-supervisors, and even non-employees, if they knew or should have known of the conduct but failed to take immediate and appropriate corrective action. Employers are obligated to take all reasonable steps to prevent harassment from occurring. An employee need not lose tangible job benefits (e.g., be terminated or demoted) to establish harassment. More on workplace harassment can be found here.

    3.       Retaliation

    The FEHA protects an employee who has “opposed any practices forbidden” under the Act.

    An employee is engaging in protected activity when she opposes any practice that would violate the FEHA, even if the practice is not directed at her: “The ‘opposition’ clause protects conduct by an employee who is not the direct victim of a practice made unlawful under Title VII, but who ‘opposes’ such discrimination against others.” (Chin, et al., Cal. Practice Guide Employment Litigation (2019 The Rutter Group) ¶ 5:1527.) Thus, it is unlawful for an employer to retaliate against an employee who reports or otherwise opposes pregnancy discrimination. The FEHA separately imposes liability on an employer for failing to prevent retaliation.

    An employee does not have to be right that discrimination actually occurred; they are protected if they had a good-faith belief of discrimination.

    Employees also have protections under California’s general whistleblower protection statute, Labor Code § 1102.5, which protects employees from retaliation when they (1) disclose information that they reasonably believe to violate state, federal, or local laws or regulations, or (2) refused to participate in any activity that would violate state, federal, or local laws or regulations.This protection applies whether the employee complains (a) externally to a government or law enforcement agency or to a public body conducting an investigation, inquiry or hearing, or (b) internally to “a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance” (e.g., their manager or HR).

    Employees are protected even if the disclosures were part of their job duties (so for example, a safety officer is still protected when speaking out about unsafe conditions). Family members of a person who has, or was perceived to have, engaged in protected activities are also protected from retaliation.

    Despite these protections, research has shown that when discrimination or harassment is reported, the consequences can be dire: an estimated 75% of employees who speak out against workplace mistreatment faced some form of retaliation.

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