Legislative Updates: Sexual Harassment Training Deadline Extended & Milestone Legislation On Worker Classification

This is bill-signing season in California, and in the last few weeks, the Legislature has approved two bills of note.

Sexual Harassment Training Deadline Extended

On January 1, 2019, a new law (SB 1343) went into effect that significantly expanded California's mandatory sexual harassment prevention training requirements. Under SB 1343, all California employers with 5 or more employees must provide two hours of sexual harassment training to all supervisory employees, and one hour of training to nonsupervisory employees. The training must take place within 6 months of hire or promotion to a supervisory position, and every two years thereafter.

SB 1343 required employers to provide this training by January 1, 2020, unless the employer already provided this training after January 1, 2019. This meant that for employers who provided training in 2018, they would have to again provide training in 2019 instead of waiting the two years.

Based on employers' concerns, Governor Newsom signed SB 778 on August 30, 2019 - an emergency clean-up bill that took immediate effect. SB 778 extends the sexual harassment prevention training deadline under SB 1343 from January 1, 2020 to January 1, 2021. Now, employers who trained their employees in 2018 can maintain their two-year cycle, and will not be required to provide training 2 years in a row. SB 778 further clarifies that employers who train their employees in 2019 are not required to provide refresher training until two years from the time to employee was trained.

The law also requires training for seasonal/temporary employees and migrant or seasonal agricultural workers.

What Does This Mean for Your Company?

• If you have 5 or more employees, you should set a two-year cycle for sexual harassment prevention training if you don't already have one. Ensure all employees receive training - 2 hours for supervisors and 1 hour for nonsupervisory employees.

• If you last trained your employees in 2017, make sure they receive another training this year. If you last trained your employees in 2018, you can maintain your two-year cycle, and train again in 2020. If you are training your employees this year, provide another training in 2021.

• Employers should also schedule interim trainings as needed for new employees and newly promoted supervisors to comply with the 6-month requirement. Maintain a process for identifying which employees need training, and documenting completed trainings.

The content of the training is also specified by law and employers should ensure their training meets these requirements.

Please reach out if you have questions about your training schedule or the content of your training. We can provide trainings at your workplace, or help you select a compliant program and set a schedule.

California Wades Further Into Worker Classification Debate

On September 18th, Governor Gavin Newsom signed Assembly Bill 5, which is aimed at requiring companies in the gig economy, including on-demand and ride-hailing companies such as Uber, Lyft, and DoorDash, to treat workers as employees rather than independent contractors. The legislation codifies a recent California Supreme Court decision, Dynamex Operations West v. Superior Court, 4 Cal. 5th 903 (2018). 

AB 5 provides that for the purposes of the provisions of the Labor Code, the Unemployment Insurance Code, and the wage orders, a person providing labor or services for remuneration shall be considered an employee rather than an independent contractor unless:

(1) the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work;

(2) the person performs work that is outside the usual course of the hiring entity’s business;

and (3) the person is customarily engaged in an independently established trade, occupation or business.

There are several occupations that are exempt from this new bill, including licensed insurance agents, certain licensed healthcare professionals, direct sales salespersons, real estate licensees, doctors, lawyers, architects, and private investigators.

What Does This Mean For Your Company?

Many large gig-economy companies have indicated that they will fight the new law, including pushing for a ballot measure during the next election. The fight is not over.

However, this would be a good time to work with your legal counsel to review any independent contractors your company works with to make sure they are properly classified as independent contractors, whether they will be subject to this new law if it goes into effect, and how to reclassify the worker as an employee if necessary. If you have any questions or want to do such a review, we can help.

Happy Fall!
Clements Employment Law