We’ve gone over AB 5, AB 51 and several other new laws in previous posts over the past few months. Go back and read the previous posts. You know you want to. Anyway, Governor Newsom signed many other new employment laws in the past few weeks, which will change California employment law.
Here is a short summary of some of the big changes coming your way. (For a more complete discussion, go to our new laws seminar that I previously plugged). Unless otherwise stated, these laws take effect January 1, 2020:
Expanded Time to File a FEHA Charge
AB 9 – The time period for filing a discrimination charge under the Fair Employment and Housing Act is extended from one to three years from the date of violation. Once the DFEH issues a right to sue, however, the plaintiff still has one year to file a lawsuit. This law will make it much harder for employers with poor record keeping, small HR departments, or high turnover in management, to defend against these claims. It will make it harder for any employer to find witnesses to investigate stale allegations. Incidentally, the law also contains provisions providing for extensions to the three year period under limited circumstances. Charges filed based on the Unruh, Ralph or Bane Acts will remain subject to a one-year filing period.
Amendment to AB 5 Adding a New Excluded Category
AB 170 is the first amendment to AB 5, the independent contractor law. AB 170 adds to one of the categories of workers excluded from the Dynamex ABC Test, provided certain conditions are met.
Harassment Training for Janitorial Contractors; Licensure
AB 547 imposes new training and registration requirements on janitorial contractors. This is one of those areas that non-janitorial contractors must review, because of the possibility of joint employer liability under AB 5’s “business to business” section and the existing provisions of the Labor Code.
New Labor Code Section 210 Penalties
AB 673 allows employees to recover penalties under section 210 of the Labor Code at a Labor Commissioner hearing, or via PAGA claim, but not both. It also adds a penalty for violating the state’s Equal Pay Act.
AB 749 bans “no rehire” provisions in settlement or separation agreements, with a few exceptions (e.g., the employer in good faith determines the employee committed sexual harassment or sexual assault). Also, the employer is not required to rehire if there was a legitimate business reason for ending the original employment relationship. This will require careful re-drafting of separation and severance agreements. Again.
Living Organ Donation
AB 1223 amends the existing organ donation leave law, set out in Labor Code section 1510. In addition to the previous paid 30-day leave, the new law adds 30 days of unpaid leave in a one-year period. Don’t ask.
Notice of Dependent Care Leave
AB 1554 adds section 2810.7 to the Labor Code, and requires employers to notify employees – in two different ways – of any deadline to withdraw funds from Flexible Spending / Dependent Care Accounts. One of the two ways may be electronic.
AB 1805 modifies the definition of “serious injury or illness” and “serious exposure” that trigger employers’ obligations to report the illness, injury or exposure to CalOSHA.
Litigation Disclosures and Sanctions
Unable to control the former litigator in me, I previously covered some amendments to discovery rules related to document requests and Interrogatories. Here’s another.
SB 17 creates a voluntary “initial disclosure” system that is similar to federal courts’ disclosures. However, the disclosures are required only via stipulation / court order. Additionally, the new law imposes a new $250 sanction (on top of other discovery sanctions) for certain discovery violations, and allows the Court to order the lawyer to report the sanction to the state bar.
Domestic Partnership Expansion
SB 30 revises “Domestic Partner” law by removing the requirement that the partnership be between same-sex couples, or that one of the partners has to be over 62 in the case of opposite sex couples. Essentially, the purpose of the law is to create an equivalent category of “marriage” without using the term. Employers will have to be careful when asking for verification of domestic partnership, when it does not require proof of marriage. This revision will affect rights under policies, benefits, and other employment matters that are not preempted by federal law.
Lactation Rest Periods and Location
SB 142 expands employers’ obligations regarding lactation accommodation, including physical location, and the consequences of inadequate location breaks and facilities.
Another Anti-Arbitration Law
SB 707 modifies the California Arbitration Act, and will impose serious consequences on employers that fail to timely pay arbitration fees and costs if required to do so under an arbitration agreement. The law not only purports to allow an employee to claim a material breach and waiver of the arbitration agreement, but also seek sanctions for non-payment of the arbitration fees. Unlike AB 51, this law seems to be directly applicable only to arbitration contracts and, so, may be preempted by the Federal Arbitration Act in cases where the federal law applies. But draft carefully and pay those fees on time just in case.
Again, this is not a complete list. The summaries are provided for convenience. Employers should review the laws themselves with competent employment lawyers.