In California: Workplace Legal Update for 2019

As featured in the Employers Council’s upcoming bulletin, California employers should be aware of the following legal changes to their workplaces, effective on or after January 1, 2019. Employers Council’s California Legal Services group will host its annual legal and legislative update webinar in January 2019. For more information, please contact CAInfo@EmployersCouncil.org.

Employers in California are again subject to a host of legal changes with respect to their workplaces for 2019.

Minimum Wage

Employers Council maintains a listing of current and future minimum wage rates as they apply to various California localities for members. Please refer to this listing for specific information on the many different minimum wage rates in effect in California for 2019.

Ban-the-Box Related to Expunged or Sealed Records

Private employers in California have been prohibited from making decisions based on expunged or sealed records, unless they operate in certain industries (such as healthcare), were regulatory requirements prohibit individuals with expunged or sealed convictions from holding certain positions. Amendments effective on January 1, 2019, provide further clarification to this prohibition. Specifically, employers may ask applicants about particular convictions if any of the following conditions apply:

  • An employer is required by law to obtain information about applicants’ particular conviction, even if it has been expunged or sealed;
  • The applicant is required to use or possess a firearm;
  • The law prohibits individuals with certain convictions from holding the position sought; and
  • The employer is prohibited by law from hiring an applicant who has that particular conviction.

Board Membership 

In late 2018, Governor Jerry Brown signed SB 826, a controversial measure designed to increase board membership rates for women. SB 826 is expected to be challenged in court during 2019. It requires that all publicly traded California companies have at least one woman on their boards by January 1, 2020. SB 826 also provides for a “ramp-up” schedule, thus requiring that all such public traded companies with five-member boards have two women on such boards by 2021, and six-member boards must have three women by 2021.

Cal/OSHA Form 300A 

On December 31, 2018, California employers who meet the definitions provided below are required to electronically submit Cal/OSHA Form 300A:

  • Otherwise non-exempt employers with 250 or more employees;
  • Employers with 20-249 employees who are members of Cal/OSHA-specified industries; and
  • Any employers directed by Cal/OSHA to submit its Form 300A electronically.

Beginning in 2019, employers must submit 300A by March 2 of the year following the year covered on the form.

Consumer Data Privacy

California’s expansive new law on consumer data privacy will go into effect on January 1, 2020. Employers will be well-served to spend time in 2019 to prepare for compliance with this new law.

Defamation

California excludes certain publications and other broadcasts of information from the reach of its defamation laws. Starting January 1, 2019, the following items will be treated as privileged publications or broadcasts for which defamation claims are limited:

  • Any complaint of sexual harassment made by an employee, without malice;
  • Communications between an employer and interested parties, without malice, regarding a complaint of sexual harassment; and
  • An answer by a current or former employer, without malice, as to whether an employee would be eligible for rehire based on an employer’s determination that the employee in question engaged in sexual harassment.

Discrimination Against Military Reservists 

California protects veterans from discrimination by employers under its Military and Veterans Code. Beginning January 1, 2019, the Code is updated to include the following prohibitions:

  • Employers may not restrict or terminate collateral benefits based on an employees’ temporary incapacitation related to duty in the State Military Reserve or federal reserve components of the U.S. Armed Forces;
  • Employers may not dissuade, restrict, or stop employees from enlisting or accepting a warrant or commission in the State Military Reserve or federal reserve components of the U.S. Armed Forces by threat or injury to the employee in respect to the terms, conditions, or privileges of employment because of said enlistment or acceptance of warrant or commission; and
  • Employers may not terminate an employee based on membership in federal reserve components of the U.S. Armed Forces.

Harassment, Generally

In addition to other requirements for harassment training and those related to settlement agreement, discussed elsewhere, California has also updated its sexual harassment laws to include the following items:

  • Employers are prohibited from requiring employees to sign releases of rights under the Fair Employment and Housing Act, a non-disparagement agreement, or other document that prohibits the disclosure of information about unlawful acts in the workplace, in exchange for (a) a raise or bonus, or (b) as a continued of employment or continued employment;
  • Employers may but are not required to offer bystander intervention training to employees;
  • Employers are prohibited from recovering fees and costs in a harassment suit brought by an employee, unless the court deciding the claim finds that the suit was brought frivolously, unreasonably, or without grounds; and
  • Employers are liable for harassment by nonemployees, including but not limited to sexual harassment, if the employer knew or should have known about the conduct and failed to take immediate, remedial action.

Harassment Prevention Training

California employers who maintained workforces of 50 or more employees have been required to provide supervisors in California with two hours of harassment prevention training for many years. However, California has now updated the mandate to include any employers with five (5) or more employees; thus, triggering compliance obligations for small businesses. In addition, California employers must now also provide nonsupervisory employees with harassment prevention training by January 1, 2020. Employers Council has discounted offerings for both supervisor and nonsupervisory in-person or online training. For more information, contact CAInfo@EmployersCouncil.org.

In addition, California janitorial employers must provide biennial sexual violence and harassment training for employees. Also, as of July 1, 2018, California employers were required to provide employees with DFEH-185, a pamphlet on sexual harassment.

Human Trafficking

California employers must update their existing human trafficking postings to include (1) a number available to receive text messages in order to request help, support, or other services, and (2) update the list of nonprofit organizations featured on the poster.

In addition, hotel and motel operators must provide 20 minutes of human trafficking awareness training to each of their employees who is likely to come into contact or interact with victims of human trafficking.

Lactation Accommodation

As of January 1, 2019, California employers must also take the following steps with respect to accommodating lactation in the workplace:

  • Offer an area or room for lactation other than a bathroom; and
  • Provide a temporary lactation location that meets the conditions specified in the Lactation Accommodation law.

The law also allows for employers to assert undue hardship defenses to compliance with the law in relation to the employer’s size, nature, or structure.

Minor Work Permits

California law requires most minors to obtain and present a work permit before commencing employment. An update to this law not prohibits denial of such work permits based on the minor’s grades, Grade Point Average (GPA), or school attendance for minors who seek to participate in government-sponsored programs during school breaks.

Oakland’s Measure Z, Regarding Hotel Worker Protections

In addition to raising the minimum wage for hotel workers, Oakland hotel operators must now also provide panic buttons, limit mandatory overtime, carefully weigh termination decisions that could be perceived as retaliatory and occurring within 120 days of an exercise of rights by an employee under the measure, and more.

Overtime Exemption Pay Increases for Exempt Computer Professionals, Physicians, and Surgeons

California allows for some exempt employees to be paid an hourly rate as long as they perform certain statutorily provided duties. These exemptions apply, in part, to computer professionals, physicians, and surgeons. As of January 1, 2019, the minimum hourly rates and monthly or annual salaries that must be paid for the exemption to attach will change.

  • Computer professionals paid on a salary basis must now be paid $94,603.25 (up from $90,790.07);
  • Computer professionals paid on a monthly salary basis must be paid $7,883.62 (up from $7,565.85);
  • Computer professionals paid on an hourly basis must be paid no less than $45.41 hourly (up from $43.58 hourly); and
  • Physicians and surgeons paid an hourly rate must be paid no less than $82.72 hourly (up from $79.39 hourly).

Salary Ban Inquiries

In early 2018, employers sterilized their application forms of salary history inquiries, but questions remained. California passed several amendments to the salary history inquiry ban to clarify the ban and also to provide more options for employers. Specifically, in addition to defining the terms “pay scale,” “reasonable request,” and “applicant,” California law also allows employers to (1) ask applicants of their salary expectations, and (2) make compensation decisions based on current salary as long as any wage differential is supported by one or more specified, nondiscriminatory factors.

Waiver and Release Agreements

Employers in California who utilize waiver and release agreements incident to end-of-employment or a settlement must make several changes to said agreements in order for them to be enforced by California courts.

  • Such waivers cannot waive a party’s right to testify in administrative, legislative, or judicial proceedings regarding criminal conduct or sexual harassment;
  • Such waivers cannot prevent the disclosure of factual information related to a civil or administrative claim as it relates to (1) sexual assault, (2) sexual harassment, and/or (3) workplace harassment or discrimination based on sex, a failure to prevent an act of workplace harassment or discrimination based on sex, and/or retaliation against a person for reporting harassment or discrimination based on sex; and
  • Arbitration provisions must now be enforced by courts unless grounds exist for rescission of the agreement, rather than the old law, which specified that a California court must enforce such a provision unless grounds exist for revocation of the agreement.