Legislative Update: California Continues To Strengthen Employment Protections In Response to the “Me Too” Movement
Now that the California legislative session for 2019 has come to a close, it’s time to review the new laws that impact the workplace, update policies accordingly, and train relevant managers and staff. Below we highlight four new laws that will impact all workplaces in California:
1. AB 8 – Extends Time To File A Complaint With the Department of Fair Employment and Housing (DFEH) from One to Three Years
The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation in employment based on protected classifications such as race, national origin, sex, sexual orientation, religion, age over 40, disability, and medical condition, among others. Under the old law, an employee who believed he or she had been aggrieved by an unlawful practice under FEHA had one year from the date of such unlawful practice to file a complaint with the DFEH. Assembly Bill 9 (AB-9), signed by Governor Newsom this month, extends the time period to file a complaint from one year to three years for complaints alleging employment discrimination. This new law specifies that it does not revive lapsed claims, but does not specify what happens to existing claims for which the previous one year statute of limitations has not yet lapsed. We advise seeking legal counsel to assess the impact of this law on any pending DFEH complaints.
2. AB 749 – A “No-Rehire or Future Employment” Clause is Now Prohibited in Settlement Agreements Resolving Employment DisputesThis new law prohibits an employer who settles an employment dispute from including in the settlement agreement a provision that prohibits, prevents, or otherwise restricts the current/former employee from working for the employer. This does not apply if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault, and clarifies that an employer does not have to continue to employ or rehire a person if a legitimate nondiscriminatory or non-retaliatory reason exists for terminating or refusing to rehire. This law applies to agreements entered into on or after January 1, 2020. We advise seeking legal counsel to review any settlement/severance agreements that may be impacted by this new law.
3. AB 51 – Ban on Mandatory Arbitration of Employment Claims This new law set to take effect on January 1, 2020, adds a new Section 432.6 to the Labor Code prohibiting employers from requiring an applicant or employee as a condition of employment, continued employment, or the receipt of any employment-related benefit to agree to mandatory arbitration of alleged violations of FEHA or the entire Labor Code. The new law also prohibits employers from implementing arbitration agreements using a voluntary opt-out procedure. There are significant questions about whether this new statute is invalid based on conflict with the Federal Arbitration Act (FAA). Legal challenges are likely, and the law may be scaled back or found entirely unenforceable. In the meantime, employers should review any arbitration agreements, including arbitration clauses within other employment agreements, with their legal counsel and decide how to proceed.
4. SB 142 – New Requirements for Employee Lactation Accommodations This new law requires employers provide a lactation room or location for expressing breastmilk that has specific requirements, including a surface to place a breast pump and personal items, a place to sit, and access to a sink and refrigerator suitable for storing milk in close proximity to the employee’s workspace. This law also requires that employers develop and implement a policy regarding lactation accommodation that includes a statement about the employee’s right to request lactation accommodation, how to make that request, and a statement about the employee’s right to file a complaint with the Labor Commissioner for violations. Further, the law makes a denial of reasonable break time or adequate space to express milk the same as a failure to provide a rest period in accordance with state law (and with the corresponding penalties). We have developed several California-compliant lactation accommodation policies and training programs, and are happy to talk with your team on developing one for your company.