By Lindsay J. Nakagawa, Attorney
In response to high-profile employment related controversies that dominated the headlines in 2018, the California legislature enacted a number of new employment-related laws. The following provides a brief summary of each. Where applicable, employers must comply with the following laws on or before January 1, 2019.
Current law requires employers to provide a reasonable break time and private location, other than a toilet stall, for employees that desire to express milk. Commencing on January 1, 2019, employers must reasonably attempt to provide a private location for lactation purposes. The lactation area must be in close proximity to the employee’s usual work area and cannot be a bathroom. Employers can provide a temporary area if a permanent location is unavailable.
Employers cannot rely on the salary history of an applicant for employment in the hiring process, nor may employers ask about an applicant’s salary history. This prohibition against considering the salary history of a job applicant does not apply to current employees of the company applying for a different position. Employers may still ask the applicant about his or her salary expectations. Finally, Employers must provide the salary range for a position upon request by an applicant who has completed an initial interview.
Certain communications are considered privileged and are protected from claims for defamation, including statements made by a former employer to a prospective employer regarding whether the employer would rehire the employee. A new law would add to those protected privileged communications: (a) complaints of sexual harassment made about an employee to an employer, if based on credible evidence, (b) communications between the employer and interested persons regarding the complaint of sexual harassment, and (c) communications by the employer regarding whether the employer would rehire the employee, and whether the decision to not rehire is based on the employer’s determination that the former employee engaged in sexual harassment.
Harassment by Nonemployees
Under California’s Fair Employment and Housing Act (FEHA), employers can be responsible for the sexual harassment of employees by nonemployees (such as volunteers, applicants, unpaid interns, or service providers) if the employer or its supervisors knew or should have known of the harassment. A new law expands the types of activity for which the employer can be responsible for actions of nonemployees to include harassment based on race, religion, ethnicity, and other protected statuses. Nor may an employer require an employee to release a claim under FEHA or require an employee to sign a non-disparagement agreement as a condition of employment or to receive a raise or bonus.
Discrimination and Harassment
Current law prohibits sexual harassment where a professional relationship exists between the plaintiff and defendant and provides examples of such relationships. A new law, enacted in response to the #MeToo movement that swept the entertainment and technology industries in 2018, extends the prohibition on sexual harassment to situations where the defendant holds himself or herself out as being able to help the plaintiff establish or further a business or professional relationship with the defendant or third-party, and expanded the examples to include politicians, investors, directors, and producers.
Confidentiality Clauses in Settlement Agreements
Employers cannot require an employee to sign a provision in a Settlement Agreement that prohibits an employee from disclosing facts related to: (a) sexual assault, (b) sexual harassment, (c) workplace harassment or discrimination based on sex, (d) failure to prevent any of the foregoing, or (e) retaliation against a person for reporting any of the foregoing.
Employers must provide a copy of a current or former employee’s employment record, including but not limited to information regarding the amounts earned, hours worked, and the employee’s identity, as soon as practicable upon request from the employee, but not later than twenty-one (21) days.
Waivers of Right to Testify
A provision in a Settlement Agreement, such as a confidentiality clause, that requires a party to waive its right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment of the other party or its employees is void when such testimony is pursuant to a court order, subpoena, or written request,
In 2016, the California legislature enacted a bill designed to increase the minimum wage over a six-year period. On January 1, 2019, California employers with 26 or more employees must pay a minimum wage of $12.00 per hour. California employers with 25 or fewer employees must pay a minimum wage of $11.00 per hour. **Please note that some cities in California may require a higher minimum wage than mandated by state law. Give us a call if you have questions about the required minimum wage in your jurisdiction.
Overtime for Agricultural Workers
Previously, employers were not required to pay overtime to agricultural workers. The California legislature enacted a new law providing a four-year phase out of the overtime exemption for agricultural workers. Commencing on January 1, 2019, agricultural employees that work more than nine and one-half (9.5) hours in a workday or work more than fifty-five (55) hours per workweek, must receive overtime at the rate of one and one-half (1.5) their usual pay. The number of hours required for overtime will decrease each year until 2022.
Existing law prohibits employers from considering a job applicant’s expunged or judicially sealed convictions when extending an offer of employment. Exceptions are made, however, for certain sensitive positions or where individuals convicted of a particular crime cannot legally hold the applied-for job. A new law limits the convictions that can be considered in those exceptions to only those particular convictions relevant to the job or employer.
Board of Directors
By the end of the 2019 calendar year, a publicly held corporation whose principal executive office is located in California must have at least one female director on its Board of Directors.
If you have questions or need assistance in updating your company practices and policies to comply with the new laws, please give us a call. We are happy to help!
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