Legislative Update For California Employers

By Swerdlow Florence Sanchez Swerdlow & Wimmer

November 15, 2019

Last month, California Governor Gavin Newsom signed a number of employment-related bills that will affect employers throughout the state. In addition to AB 5, which restricts the use of independent contractors, California employers also should be aware of the following legislative changes:

1. AB 51 – Prohibition On Arbitration Agreements.

This legislation seeks to ban mandatory arbitration agreements as a condition of employment. It adds Section 432.6 to the California Labor Code, which makes it unlawful for any person to require a job applicant or any employee to waive any right, forum, or procedure pursuant to the California Fair Employment and Housing Act (FEHA) or the Labor Code as a condition of new or continued employment or in order to receive any employment-related benefit. Section 432.6 also makes it unlawful for an employer to threaten, retaliate, or discriminate against an applicant or an employee for refusing to waive any right, forum, or procedure pursuant to FEHA or the Labor Code.

Notably, the legislation explicitly states that it is not intended to invalidate written arbitration agreements that are otherwise enforceable under the Federal Arbitration Act (FAA). Additionally, the legislation does not apply to arbitration agreements entered into prior to January 1, 2020, nor does it apply to post-dispute settlement agreements or negotiated severance agreements.

The legislation will likely be challenged on the ground that it is preempted by the FAA – a federal law. Employers that wish to guard against potential challenges to the law should ensure that all current employees have executed valid, FAA-governed arbitration agreements by the end of 2019.

2. AB 9 – Increased Time To File Charge Of Discrimination & Harassment.

Currently, employees who wish to file a discrimination, harassment, or retaliation lawsuit against their employer pursuant to FEHA must first file an administrative charge with the California Department of Fair Employment and Housing (“DFEH”) within one year of the alleged adverse employment action. AB 9 extends this deadline to three years. The bill goes into effect January 1, 2020, and does not revive lapsed claims.

3. SB 142 – Expanded Lactation Accommodation Requirements.

Existing California law requires employers to provide a reasonable amount of break time to employees desiring to express milk for the employee’s infant child. Existing law also requires an employer to make reasonable efforts to provide the employee 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 breast milk in private.

SB 142 now requires employers to provide a lactation room with prescribed features, including access to electricity and a place to sit. The legislation also requires employers to provide access to a sink with running water and a refrigerator in close proximity to the employee’s workspace. SB 142 also provides that an employer’s failure to provide adequate break time or adequate lactation space shall be deemed a violation of an employer’s rest-period obligations and, therefore, employees may seek to recover one additional hour of pay at the employee’s regular rate for each instance in which a lactation break or proper space is not provided. SB 142 also requires all employers to implement a lactation accommodation policy. Employers should review and/or develop such policies before January 1, 2020.

4. SB 778 – Extension Of Time To Complete Harassment Training.

Last year, then-Governor Jerry Brown signed SB 1343, which required employers with five or more employees to provide at least two hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all non-supervisory employees by January 1, 2020, and once every two years thereafter. SB 778 now provides that employers with five or more employees have until Jan. 1, 2021 (not January 1, 2020) to complete the mandatory one- and two-hour employee harassment prevention trainings. SB 778 also clarifies that new non-supervisory employees must be provided sexual harassment training with six months of hire, and new supervisory employees must be provided sexual harassment training within six months of the assumption to a supervisory position. The bill also clarifies that an employer who has provided this training and education in 2019 is not required to provide it again until two years thereafter.

Contact your SFSS&W attorney if you need any assistance in reviewing or implementing arbitration agreements, drafting or updating a lactation accommodation policy, fulfilling the harassment prevention training requirements, or if you have any other employment-related inquiry.