To close out the 2019 legislative season, Governor Gavin Newsom signed dozens of bills into law, which will have lasting impacts for California employers. In addition to the summaries and clarifications from prior blog posts, below is an overview of key new employment laws.
AB 9: Extension of FEHA Statute of Limitations
AB 9, known as the Stop Harassment and Reporting Extension (“SHARE”) Act, extends the deadline to file an allegation of unlawful workplace harassment, discrimination, or civil rights-related retaliation under the Fair Employment and Housing Act (“FEHA”) from one year to three years. In so doing, AB 9 will impose a statute of limitations period that is six-times the length of the federal standard and three-times the length of the current state standard. The Act does not revive lapsed claims.
AB 25: Amendment to California Consumer Privacy Act (“CCPA”)
As reported in detail in our previous posts Employer Privacy by Design and Big Bang!, the CCPA goes into effect on January 1, 2020 and “grants consumers various rights with regard to their personal information held by businesses, including the right to know, access and request deletion of their data.” AB 25 clarifies that the CCPA gives rights to all individuals that a business collects personal information from, including applicants, current and former employees, contractors, emergency contacts, and dependents/spouses for purposes of administering benefits. Accordingly, any personal information a business maintains that can identify these individuals is subject to CCPA.
AB 51: Prohibition of Arbitration Agreements
AB 51 prohibits employers from requiring employees or applicants to waive any right, forum, or procedure for a violation of FEHA or the Labor Code as a condition of employment. It also prohibits employers from threatening, retaliating or discriminating against, or terminating employees or applicants because they refused to waive any such right, forum, or procedure. In addition to outlawing mandatory arbitration agreements, AB 51 also prohibits arbitration agreements that require employees to opt out of a waiver “or take any affirmative action in order to preserve their rights.” Notably. the express language of AB51 provides that the law does not invalidate any agreement governed by the Federal Arbitration Act and therefore it will not have any impact on the majority of arbitration agreements.
To the extent an arbitration agreement or class action or jury trial waiver in not governed by the FAA, effective January 1, 2020, an employer may only enter into such an agreement an arbitration agreement or class action or jury trial waiver with a California employee if that employee voluntarily and affirmatively chooses to enter into such an agreement or waiver.
AB 547: Sexual Violation and Harassment Prevention Training in the Janitorial Industry
This law requires the director of the Department of Industrial Relations to convene an advisory committee to identify qualified organizations that janitorial employers must use for in-person training on sexual violence and harassment prevention for janitorial employees.
AB 749: Settlement Agreements
AB 749 voids “no rehire” provisions in settlement agreements entered into on or after January 1, 2020. The law does include several notable exceptions, including where the employer has made a good faith determination that the individual engaged in sexual harassment or assault. Further, the law does not require an employer to rehire an individual “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.”
SB 142: Expansion of Lactation Accommodation Requirements
This bill expands existing law relating to lactation accommodation to add a number of new requirements for the lactation space itself, including access to running water and a refrigerator for storing milk, as well as employer policy requirements and document retention obligations. The bill also subjects employers to Labor Code penalties for violations.
SB 530: Harassment and Discrimination Prevention Training
SB 530 extends the deadline for mandatory sexual harassment training to January 1, 2021 for employers of seasonal, temporary, or other employees “hired to work for less than 6 months.”
SB 688: Unpaid Wages
This law amends Labor Code § 1197.1, which currently permits the Labor Commissioner to issue a citation where an employer has failed to pay at least the minimum wage. The law expands the power to issue a citation to instances where the employer has contractually promised to pay more than minimum wage but has failed to pay the promised wage.