03 Oct '18
Acting on the momentum of the #MeToo and #TimesUp movements, California legislators have leapt into action, putting forward legislation to protect employees who have been subjected to or opposed sexual harassment. They sought to limit confidentiality and nondisparagement provisions, restrict mandatory arbitration, increase recordkeeping and training obligations, extend the statute of limitations, and create individual liability for retaliation. In June, I wrote about the importance and potential impact of these bills in Sexual Harassment Law After #MeToo: Looking to California as a Model, published in the Yale Law Journal Forum.
On September 30, 2018, Governor Brown signed into law a number of the bills aimed at addressing sexual harassment and abuse. He vetoed several others, to the disappointment of employee rights advocates. Overall, however, the new laws are cause for celebration.
Bills Signed into Law
SB 820, The Stand Together Against Non-Disclosures (STAND) Act
SB 820 prohibits confidentiality provisions in the settlement agreement of any civil or administrative action that states a cause of action for: sexual assault; workplace harassment or discrimination based on sex; failure to prevent workplace harassment or discrimination based on sex; sexual harassment in a business, service, or professional relationship; and sex discrimination, harassment, or retaliation by the owner of a housing accommodation. The law permits restrictions on disclosure of the settlement amount. An employee is entitled to request confidentiality. The STAND Act will make it more difficult for employers to support and protect serial harassers.
AB 3109 makes a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
SB 1300 is a comprehensive bill that helps combat sexual harassment in a number of ways. Among other things, it:
- Prohibits nondisparagement agreements that gag employees from disclosing information about sexual harassment and other unlawful acts (often presented to employees at the outset of their employment as a condition of employment);
- Prohibits releases of claims presented in exchange for a raise, bonus, or as a condition of continued employment;
- Holds employers liable for failing to prevent all forms of unlawful harassment by third parties, not just sexual harassment;
- Confirms that prevailing defendants are entitled to fees and costs only when the action is frivolous, notwithstanding CCP section 998. This means that an employee need not fear that if she loses her case, that she may be forced to pay the company’s legal costs;
- Declares legislative intent regarding sex harassment, including that a single incident can constitute sex harassment, even absent extreme circumstances, that an employee’s work performance need not have suffered, and that summary judgment should rarely be granted;
- Makes sexual harassment training more robust.
AB 1619 increases the statute of limitations for civil action for sexual assault of an adult to
16 Oct '17
According to research cited by the California legislature, women in California still earn 84 cents for every dollar earned by a male counterpart. This is sightly better than the nationwide average of 80 cents. The wage gap is even wider for women of color (for example, African-American women earn 63 cents and Latinas earn 54 cents per male dollar). Closing the wage gap would give an additional $8,000 on average to each working woman in California—an additional $39 billion in total, benefiting families and the economy.
As I have written before, one of the reasons that the wage gap persists is that women’s lower prior salary is used to justify paying them less at new jobs. This means that a new employer without intentional bias can perpetuate the pay gap by relying on what may have been the result of bias elsewhere. The lifetime cost to women can be tremendous.
AB-168, authored by Assemblymember Susan Talamantes Eggman (D-Stockton) and signed into law by Governor Brown, seeks to close the gender pay gap. The newly enacted bill adds California Labor Code section 432.3.
Under section 432.3, effective January 1, 2018:
- Employers can no long ask job applicants about their salary history, including compensation and benefits.
- Employers can no longer consider prior salary as a factor in determining whether to offer an applicant a job or what salary to set for the position.
- Employers are required, upon request, to provide a job applicant with the pay scale for the position.
- A job applicant may still decide to voluntarily (without prompting) disclose their salary history information, and employers may consider voluntarily disclosed information when setting compensation.
The bill applies to all California employers, private and public.
Exempt from Section 432.3 is salary information that is subject to public disclosure pursuant to state and federal law, including the California Public Records Act and the Freedom of Information Act.
Hopefully, this new law will have a major impact on closing the wage gap.
13 Oct '17
Expansion of bonding rights for California parents
Thanks to the SB-63, introduced by Senator Hannah-Beth Jackson, California parents who work for smaller employers will now be allowed to take up to 12 weeks of unpaid job-protected leave to bond with a new child. During that time, their employers will be required to continue their group health coverage benefits. Government Code Section 12945.6, known as the New Parent Leave Act, will make bonding leave available to millions of additional workers — an estimated 16% of the California workforce who did not previously have this right.
To be eligible for the 12 weeks of leave under the New Parent Leave Act, the following criteria apply:
- The employee must have at least 12 months of service with the employer;
- The employee must have at least 1,250 hours of service during the prior 12 months; and
- The employee must works at a worksite with at least 20 employees within 75 miles.
The employee can take the bonding leave within one year of a child’s birth, adoption, or foster care placement.
Existing law, the California Family Rights Act (“CFRA”), provides similar parental leave rights…
18 Dec '16
Happy holidays and happy new year!
2016 has been a tumultuous year for all of us. But California continues to serve as a shining beacon, leading the way, including with legislation that protects workers. Here are five new laws worth celebrating as we welcome the new year.
1. Minimum Wage Increase to $15/Hour by 2023 — SB-3
Over the past few years, the California State Legislature has steadily increased the minimum wage, a move that helps stem the rising income inequality in our society. SB-3 increases the minimum wage for all employees to $15 an hour by 2023, and ties future increases to inflation. The schedule (subject to certain conditions) will be. . .
27 Sep '16
California workers have yet another reason to rejoice. This month, Governor Brown signed into law a bill that prohibits choice of law and choice of forum provisions in employment contracts.
Why is this law so important?
California has some of the strongest employee protections in the nation. However, some employers have sought to strip away these protections and to deter employees from asserting legal claims through the use of choice of law and choice of forum provisions. These provisions are often buried in arbitration agreements that are presented to employees or job applicants on a “take it or leave it” basis.
A choice of law provision is a term in a contract or agreement that requires that any dispute be governed by the laws of a particular jurisdiction. For example, if a California employee’s employment contract or arbitration agreement has a choice of law provision stating that the contract will be governed by Texas law, Texas law will likely trump California law for claims brought under the contract—even if this reduces or limits the employee’s claims or recovery. Choice of law provisions can make it difficult for employees to even understand their legal rights, as they are likely unfamiliar with the out-of-state laws that would apply to their claims.
A choice of forum provision determines where an employee can assert his or her claim. For example, if there is a choice of forum provision in an employment agreement that requires arbitration in Delaware, that would prevent an employee from being able to file a lawsuit in a California court. Instead, the employee would be forced to pursue their case in arbitration in Delaware. Such a provision serves to deter an employee from bringing forward legal claims because the employee would need to find a lawyer to take on the case in another state, would likely be unfamiliar with the out-of-state forum, would need to travel to the forum, and would have a case that is far more expensive to litigate because the witnesses are not in the same place as the forum.
New Labor Code section 925
07 Oct '15
On Tuesday, October 6, Governor Brown signed SB 358 (Jackson), the California Fair Pay Act. The Act, aimed at addressing the gender pay gap, will be the nation’s toughest. It seeks to ensure that women are paid equally for performing substantially similar work, and protects employees from retaliation for disclosing/discussing wages or seeking to enforce their rights. Credit goes to Senator Hannah-Beth Jackson (D-Santa Barbara) for authoring the bill, which had wide bipartisan support, and to co-sponsors
Equal Rights Advocates, California Employment Lawyers Association, and Legal Aid Society-Employment Law Center.
The Fair Pay Act Strengthens Existing Law
California’s Equal Pay Act, Labor Code section 1197.5, was first enacted in 1949 and revised in 1985. It is similar to the federal Equal Pay Act of 1963. The Fair Pay Act bolsters the California Equal Pay Act in the following ways:
1. It provides for equal pay for “substantially similar work,” not just equal work in the same establishment.
This means that a woman need not hold the exact job as her male comparators to seek equal pay. Instead, the works needs to be “substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions.”
2. It eliminates loopholes and limits employers defenses when a wage differential is challenged.
Previously, the following four defenses were permitted:
In a historic 14-1 vote yesterday, the Los Angeles City Council voted to raise the minimum wage to $15 per hour by 2020. The city attorney’s office has been directed to draft the language of the law for the Council’s final approval. Mayor Eric Garcetti has stated that he intends to sign the law.
California’s current minimum wage is $9 an hour, and is set to increase to $10 an hour statewide on January 1, 2016.
The Los Angeles minimum wage increases expected once the law is finalized are as follows:
- July 1, 2016: $10.50
- July 1, 2017: $12.00
- July 1, 2018: $13.25
- July 1, 2019: $14.25
- July 1, 2020: $15
After that, the minimum wage would increase annually pegged to a measure of inflation. Small businesses would have an extra year to comply and certain non-profits could seek an exemption.
This law will have a tremendous impact on working Angelenos. According to a report by Economic Roundtable, the UCLA Labor Center, and the UCLA Institute for Research on Labor and Employment, 723,000 employed, working-age adults in Los Angeles earn . . .
06 Jan '15
People are almost always surprised to learn that, despite the serious harms that they can cause, workplace bullying and hostile work environments are not illegal unless motivated by discriminatory or retaliatory bias that the law specifically prohibits. The short version: being a jerk to everyone is, well, perfectly legal.
Workplace bullying can be devastating. Those who are bullied feel humiliated and demoralized. The bullying can literally make them sick, causing stress and anxiety, depression, sleep disorders, and other illnesses. Employers also suffer as absenteeism increases, morale and productivity decline, and companies lose good employees.
Workplace bullying is also far too prevalent. A national survey conducted by Zogby found that 27% of people have suffered abusive conduct at work and another 21% have witnessed it happen. 7% of those surveyed said they were currently being bullied at work. The consequences of bullying were severe: 48% of those who were bullied said that they left their jobs or felt forced to quit because of the bullying, while 13% were terminated (probably in retaliation for speaking up), and another 13% were transferred to a different position.
05 Sep '14
California just made history as the second state to require paid sick days for employees! On August 30, 2014, Governor Jerry Brown signed into law the Healthy Workplaces, Healthy Families Act of 2014.
Employees will get three days of sick leave (24 hours) per year
Starting July 1, 2015, employees in California who work for 30 or more days within a year will be entitled to paid sick leave. They will accrue paid sick time at a rate of one hour per 30 hours worked, to a maximum of 24 hours or 3 days per year. Employees will be permitted to use the time off beginning on the 90th day of employment.
When can paid sick leave be used?
An employee will be able to use the paid sick time for:
- The employee’s own care – whether for diagnosis, care, or treatment of an existing health condition or for preventive care;
- Care for the employee’s child, parent, spouse, domestic partner, grandparent, grandchild, or sibling – whether for an existing health condition or for preventive care; and
- Certain uses by an employee who is a victim of domestic violence, sexual assault, or stalking.
Logistics of Using Paid Sick Leave
01 Jul '14
Happy tenth birthday to California’s Paid Family Leave Law! Paid Family Leave (PFL) first went into effect ten years ago today on July 1, 2004. For the past decade, most California workers have been entitled to paid leave when they take time off of work to care for a seriously ill parent, spouse, or child. Coverage was also expanded to cover care for a domestic partner. In addition, parents are entitled to paid leave to bond with a new baby during that first year or to connect with an adopted or foster child.
With paid family leave, California workers don’t have to choose between caring for a sick loved one and making ends meet. PFL provides for up to six weeks of wage replacement at about 55% of your pay, up to $1067 per week-through California’s Employment Development Department (EDD).
Today is a special day for PFLL for a second reason: the law, thanks to the passage of SB 770 last year, now provides you with paid leave if you take time off to care for . . . .
Mizrahi Law, APC
- 201 S Lake Ave, Ste 305, Pasadena, California 91101
- (626) 380-9000
- (626) 606-3999
- Ms. Mizrahi was elected as an officer of the State Bar of California Labor & Employment Law Section.
- Ramit Mizrahi has been selected as one of the Top 100 Super Lawyers® Rising Stars and Top 50 Women Rising Stars in Southern California.
- Ms. Mizrahi has been selected as a Pasadena Magazine Top Attorney.
- Ms. Mizrahi has been selected as a Los Angeles Magazine Top Women Attorneys In Southern California for the fourth year in a row.
Latest Blog Posts
- Posted in