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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.
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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.
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21 Aug '19
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.
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Senate Bill 707 is directed at employers who force employees into arbitration then refuse to pay the fees
On May 28, 2019, the California Senate passed Senate Bill 707 (“SB 707”), otherwise referred to as the Forced Arbitration Accountability Act. SB 707 seeks to end an abusive tactic that employers use to deny their employees justice—forcing them to arbitrate their legal claims and then suspending the process by refusing to pay the arbitration fees. The bill would pull employees out of this legal limbo by giving them options that allow them to proceed with their cases despite employer non-cooperation. SB 707 also aims to examine the alarming lack of diversity in the arbitration industry. It would require arbitration service providers to collect and share demographic data about the self-reported ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators, as California judges are required to do.
1. OVERVIEW OF ARBITRATION
To understand the potential impact of SB 707, it is helpful to start with an overview of arbitration.
Arbitration is a form of private dispute resolution that takes place outside of the court system. In arbitration, an arbitrator—often a retired judge or lawyer—acts as both the judge and jury and renders a decision, which is generally final and binding. Employers are increasingly requiring employees to sign arbitration agreements and waive their right to a jury trial as a condition of employment. According to estimates from the Economic Policy Institute and the Center for Popular Democracy, almost 83% or 95 million of the country’s private, non-unionized employees will be subject to arbitration by 2024. These arbitration agreements are often buried in the fine print of job applications, employment agreements, or employee handbooks, and employees often only learn that they have signed arbitration agreements after-the-fact.
Arbitration generally favors employers. When employees are forced into arbitration, they are less likely to win their claims, and even when they do, they receive lower awards that employees who had jury trials.
One reason for this is that employers get to choose the rules governing the proceedings. The rules often make the process less favorable to employees, including by restricting discovery, limiting appeal rights, and prohibiting class actions. Discovery is the process by which each side formally obtains information from the other, including depositions (in which a party’s lawyer can examine witnesses under oath), interrogatories (written questions), requests for admissions, and requests for production of documents. In cases where an employee must prove that an employer acted with wrongful intent or discriminatory bias, the lack of meaningful discovery (for example, being denied the ability to take a sufficient number of depositions) can be fatal to an employee’s claim. (In some states, employers also use the rules to shorten the time that employees have to file their statutory claims (the statute of limitations) and to restrict legal remedies; this is not permissible in California.)
Another reason that the process favors employers is that . . .
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Senate Bill 135 could expand family and medical leave protections to many more California employees
UPDATE: On May 30, 2019, SB 135 was ordered to the inactive file at the request of Senator Jackson. However, several of the changes proposed in the bill were subsequently adopted during the following legislative session as part of Senate Bill 1383, which became effective on January 1, 2021. Among other things, SB 1383 expanded CFRA to:
- Apply to employees at workplaces with 5 or more employees (down from 50);
- Allow leave to care for grandparents, grandchildren, siblings, domestic partners, children of domestic partners, and adult children (in addition to care for parents, children, and spouses, which was already covered);
- Allow leave in some circumstances where an employee’s spouse, domestic partner, child, or parent is serving in active duty in the Armed Forces of the United States.
See our post on Senate Bill 1383 here.
On January 15, 2019, Senator Hannah-Beth Jackson of California’s 19th District introduced Senate Bill 135 (“SB 135”). The bill seeks to significantly expand California workers’ access to job-protected, paid family and medical leave by extending coverage under the California Family Rights Act and California’s Paid Family Leave program. The legislation follows Governor Gavin Newsom’s recent announcement that he is committed to expanding paid family leave.
Senator Jackson introduced SB 135 with four main goals:
- Ensuring that all workers have job protection when they take paid family leave.
- Extending the time period workers can take paid family leave to care for an ill family member and so that every newborn can be cared for by a parent or close family member for their first six months of life.
- Expanding and harmonizing the definition of family member in our family leave laws to reflect the realities of today’s working families.
- Increasing the wage replacement amount to ensure families can afford to take leave.
1. OVERVIEW OF EXISTING PROTECTIONS
To understand the potential impact of SB 135, it is helpful to start with an overview of California’s existing family and medical leave laws.
The Pregnancy Disability Leave Law (“PDLL”) allows employees to take up to four months of unpaid, job-protected leave for pregnancy, childbirth, or related conditions. The law covers all employees at companies with five or more employees; employees are covered from their first. . .
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On March 26, 2019, Ramit Mizrahi appeared on AirTalk (hosted by Larry Mantle) at KPCC to discuss the importance of SB 188, the CROWN Act.
The CROWN Act will prohibit workplace discrimination against employees who wear their hair in braids, locks, twists, and other protective hairstyles. It will prevent employers from enforcing seemingly “race neutral” grooming policies that prevent people of color from growing their naturally textured or curly hair or wearing it in certain hairstyles.
The CROWN Act will do so by amending the California Fair Employment and Housing Act (specifically, Government Code § 12926) to add the following definitions:
(w) “Race” is inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.
(x) “Protective hairstyles” includes, but is not limited to, such hairstyles as braids, locks, and twists.
The episode can be found here: Braids, locs and twists: new CA bill aims to protect certain hairstyles from workplace discrimination.
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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
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
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
AB 1619 increases the statute of limitations for civil action for sexual assault of an adult to
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Despite the federal Equal Pay Act of 1963 being on the books for over 50 years and California having its own Equal Pay Act, the gender wage gap has persisted.
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.
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UPDATE: On January 1, 2021, the California Family Rights Act (“CFRA”) was expanded to cover employees who work for employers with five or employees; as a result the New Parent Leave Act was rendered unnecessary and was repealed. While the New Parent Leave Act was short-lived, it was a stepping stone to provide more new parents with leave rights.
Read more about SB 1383, which expanded the CFRA, here.
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.
Eligibility requirements
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…
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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. . .
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- Ramit Mizrahi has been recognized as one of the Top 100 Super Lawyers and Top 50 Women Super Lawyers in Southern California in 2023.
- Ms. Mizrahi is being recognized in the 2023 Edition of The Best Lawyers in America©, published by U.S. News & World Report and by Best Lawyers.
- Ms. Mizrahi has been selected as a Top Attorney by Pasadena Magazine for 2023.
- Ms. Mizrahi is serving as Chair of the Pasadena Bar Association Labor and Employment Section.