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2019 brings with it a host of new laws for California employers. With almost 40 million people living in our Golden State, the legislature continues its steadfast dedication to pass the country’s most employee-friendly laws. Consequently, employers are advised to quickly review, digest, and implement these new laws as they unfold.

The new laws include an expansion on sexual harassment training requirements, placing a prohibition on certain sexual harassment nondisclosure agreements, broadening lactation accommodation requirements, and implementing the mandatory inclusion of women on corporate boards of directors. Surprisingly, Governor Brown vetoed the more onerous bills passed by lawmakers, including a law to ban arbitration for claims arising under the Labor Code and the Fair Employment and Housing Act (FEHA).

Here are some of the most widely applicable new California laws:

Most California Employers Will Be Required to Provide Sexual Harassment Training

Senate Bill 1343. This law requires any employer with five or more employees (including temporary or seasonal workers) to provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every two years thereafter. The further law requires that employees be trained during calendar year 2019; any employees trained in 2018 or before must be retrained.  To ease this burden, the California Department of Fair Employment and Housing created one-hour and two-hour online training courses that fulfill these requirements.

California Civil Code Amended to Expand Employment Relationships Subject to Sexual Harassment Claims

Senate Bill 224. An amendment to the Civil Code that creates new types of employment relationships that are subject to a claim for sexual harassment where one party holds him or herself as being able to help another establish a business or professional relationship, either directly, or with a third party. This eliminates the need for a plaintiff to prove there was an inability to easily terminate the relationship. Those persons who may be held liable include, among others, an investor, elected official, lobbyist, director and producer.

Employers Can No Longer Reward Employee Release of FEHA Claims

Senate Bill 1300. This bill established that it is an unlawful practice for an employer to require an employee to release a FEHA claim in exchange for a bonus, raise or continued employment. The law also expanded liability for employers beyond just sexual harassment to now encompass any kind of unlawful harassment by nonemployees where the employer knew or should have known of the harassment and failed to take appropriate remedial action. Additionally, lawmakers encompassed several statements of intent designed to make summary judgment an uphill battle for employers, such as, hostile work environment cases are “rarely” appropriate for disposition on summary judgment and that a single incident of harassing conduct can be sufficient to create a triable issue of fact regarding a hostile work environment claim.

Women to Be Required on Corporate Boards of Directors

Senate Bill 826. By the end of 2019, publicly held domestic or foreign corporations with principal executive offices in California must have a minimum of one female director on the board. A corporation may increase its number of directors to comply with this mandate. Additional requirements for the inclusion of women on corporate boards of directors are set to take effect in the end of 2021, when a minimum of three female directors must be present on boards with six or more directors; two female directors must occupy seats if the board has five directors; and if the board has four or fewer directors, one female director is sufficient to satisfy the law.

Amendments to Existing Lactation Accommodations

Senate Bill 1976. SB 1976 requires employers to make “reasonable efforts” to provide a room other than a bathroom to accommodate employees expressing breast milk. While the law encourages employers to make the location permanent, it permits the use of a temporary space if the employer cannot find a permanent solution due to operational, financial or space limitations. There is a limited exception which includes employers who can establish the law creates an undue hardship taking into account the size, nature, or structure of the business.

Expansion of Paid Family Leave

Senate Bill 1123. In an effort to broaden paid family leave benefits for employees who take leaves of absences for specified purposes and receive partial wage replacement, this amendment adds new reasons for leave: being called to active duty or a spouse, domestic partner, parent or child being called to active duty. This law comes into effect beginning January 1, 2021.

Narrowing Allowance of Criminal History Inquiries

Senate Bill 1412. Under prior law, employers were permitted to inquire about an applicant’s or employee’s criminal history where federal or state law required such an inquiry. SB 1412 narrows this exception, allowing employers to delve into criminal history only when an employer is required by law to ask about a “particular conviction” or in a situation where an employer is prohibited by law from hiring someone with a “particular conviction.” The law defines “particular conviction” as a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.

Clarification of the Fair Pay Act

Assembly Bill 2282. In 2017, the legislature enacted the Fair Pay Act, which prohibited employers as of January 1, 2018, from asking job applicants for “salary history information.” However, the law left several questions unanswered. AB 2282 attempts to clarify the Act by making clear that an “applicant” is an individual who seeks employment and not a current employee.  Further, it defines “pay scale” as a salary or hourly wage range that does not include bonuses or equity ranges. Notably, employers are allowed to inquire about an applicant’s salary expectations without violating the Fair Pay Act.

Waiving a Party’s Right to Testify in a Criminal Proceeding is Prohibited

Assembly Bill 3109. Pursuant to the new law, any contract or settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in a legal proceeding regarding criminal conduct or sexual harassment on the part of the other contracting party, or the other party’s agents or employees, is void and unenforceable. The law applies to testimony whether required or requested by court order, subpoena, or administrative or legislative request.

Prohibition of Confidentiality Provision in Certain Settlement Agreements

Senate Bill 820. Covering both private and public employers, the Stand Together Against Non-Disclosures (STAND) Act prohibits the inclusion of a provision in a settlement agreement that prevents the disclosure of factual information relating to claims of sexual assault, harassment, discrimination or related retaliation in the workplace. Any such provision entered into on or after January 1, 2019, is void as a matter of law and against public policy. The law does carve out an exception for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, as long as the anonymity is requested by the claimant and a government agency or public official is not a party to the agreement.

By Karl Schlecht and Edwin Schwartz