2019 Employment Law Changes
12.10.18
When the ball drops at midnight on New Year’s Eve, an array of new state laws passed by the California legislature in 2018 will immediately take effect. This SSCM Insight provides a brief summary of the most significant changes we see forthcoming. It is important for all employers to be aware of these changes and to modify any policies and procedures that may be impacted.
An Expansion of the Scope of Employer Communications About Prospective Employees (AB 2770)
Existing law allows an employer to inform a prospective employer whether or not the employer would rehire the employee. Such a communication is deemed privileged and protected from a lawsuit for defamation if done without malice. The new law now adds among those privileged communications the following (all require that there be no malice): (a) complaints of sexual harassment by an employee to an employer based on credible evidence; (b) communications between the employer and interested persons regarding a complaint of sexual harassment; (c) communications by the employer whether the employer’s decision to not rehire the employee is based on the employer’s determination that the former employee engaged in sexual harassment.
Limitations on Settlement Agreements About Sexual Harassment (SB 820 and AB 3109)
A new law makes a provision in a settlement agreement, entered into on or after January 1, 2019, preventing the disclosure of the factual information relating to the following civil and/or administrative claims, void as a matter of law and against public policy: (a) sexual assault; (b) sexual harassment; (c) workplace harassment or discrimination based on sex; (d) failure to prevent an act of workplace harassment or discrimination based on sex; (e) retaliation against a person for reporting harassment or discrimination based on sex; (f) harassment or discrimination based on sex; or (g) retaliation against a person for reporting harassment or discrimination based on sex. This bill expressly allows: (1) at the request of the claimant, that the settlement agreement include a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court as long as the opposing party is not a government agency or public official; and (2) that the settlement agreement include a provision that shields the disclosure of the amount paid in settlement of a claim.
Additionally, any provision in a contract or settlement agreement which waives a party’s right to testify in an administrative, legislative or judicial proceeding concerning alleged criminal conduct or sexual harassment, void and unenforceable.
Mandatory Sexual Harassment Training (SB 1343 and 1300)
Employers with 5 or more employees, including temporary or seasonal employees, will be required to provide at least 2 hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020 and every 2 years thereafter. Read more about this law here.
OSHA Reporting Requirements Expanded (AB 2334)
Currently, the Division of Occupational Safety and Health (“Division”) can issue a citation for employer violations of recordkeeping requirements. As of now, the Division is prohibited from issuing a citation more than six months after the “occurrence” of the violation. The new law provides, among other things, that an “occurrence” continues until (a) it is corrected, (b) the Division discovers the violation, or (c) the duty to comply with the requirement that was violated no longer exists. As a result, employers must now be hyper-vigilant to maintain all records required under OSHA law.
Clarification on Lactation Accommodation (AB 1976)
Employers are currently required to make reasonable efforts to provide an employee who wishes to express breast milk with the use of a room or other location, other than a bathroom, in close proximity to the employee’s work area for the employee to express milk in private for the employee’s child. Employers are also required to provide such employees a reasonable amount of break time. Under the new law, employers that make a temporary lactation location available to employees shall be deemed to be in compliance if all of the following conditions are met: (1) they are unable to provide a permanent lactation location because of operational, financial or space limitations; (2) the temporary location is private and free from intrusion while an employee expresses milk; (3) the temporary location is used only for lactation purposes while an employee expresses milk; (4) the temporary location otherwise meets the requirements of state law concerning lactation accommodation.
California Consumer Privacy (AB 375)
In another sweeping change to privacy, the California Consumer Privacy Act grants consumers with the right to be informed about what kinds of personal data companies have collected and why it was collected. Among other new protections when the law takes effect in 2020, consumers will have the right to request the deletion of personal information, opt out of the sale of personal information, and access the personal information in a “readily useable format” that enables its transfer to third parties without hindrance. We will have more about this law in our next update.
As with any new law, implementation is always an issue. In the new year, we will provide additional information as to the best way to implement these for both your current employees and future employees. For more information and for training, contact Ross Schwartz, Dick Semerdjian, Sarah Evans, Sierra Spitzer or Owen Praskievicz.