By Anne-Marie Beck and Debra Ann Arviso
CCDA Legislative/Policy Committee
Enacted: Fair Employment and Housing Act Amendments SB1300
Enacted: Protection Against Secret Settlements SB 820
Enacted: Sexual Harassment Training for All Employees and Small Employers SB1343
Enacted: Freedom to Testify About Criminal Conduct and Sexual Harassment AB 3109
Enacted: Statute of Limitations for Sexual Assault Claims AB 1619
Enacted: More Women on Boards of Directors SB826
Enacted: Expanding Lactation Accommodation AB 1976
Enacted: Criminal Background Checks SB 1412
Enacted: Paid Family Leave Use for Call to Active Duty/Military Service SB 1123
Enacted: Human Trafficking Training for Hotel/Motel and Mass Transit Employers SB 970 & AB 203
Enacted: Talent Agencies Required to Provide Sexual Harassment Education AB 2338
Enacted: Expansion of Relationships Subject to Sexual Harassment Claims SB 224
Enacted: PAGA Relief for Unionized Construction Employers AB 1654
Enacted: Sexual Harassment Training for In-Home Supportive Services AB 3082
Enacted: Retailers Jointly Liable for Trucking Labor Violations SB 1402
Enacted: Emergency Ambulance Employee Safety and Preparedness Act Proposition 11
Introduced: California Community Colleges Waive Fees for Two Years AB 2
Introduced: Janitorial Workers: Sexual Violence and Harassment Prevention Training AB 2079
Introduced: Roll Back Dynamex Decision AB 71
Introduced: Expand protections for Independent Contractors AB 5
Enacted: Fair Employment and Housing Act Amendments
SB 1300 amends the Fair Employment and Housing Act (FEHA) as follows: (1) it makes employers liable for claims of sexual harassment, and any kind of unlawful harassment by non-employees where the employer knew or should have known of the harassment and failed to take appropriate corrective action; (2) it prohibits employers from requiring an employee to release a FEHA claim in exchange for a raise or bonus or as a condition of employment or continued employment; (3) it prohibits an employer from requiring an employee to sign a non-disparagement agreement or other document by which the employee would be restrained from disclosing information about unlawful acts in the workplace; (4) it provides guidance on bystander intervention training; and (5) it adds declarations of the Legislature’s intent with regard to the application of the anti-harassment laws. Among other things, the Legislature has declared that a single incident may be sufficient to create a triable issue regarding the existence of a hostile work environment; that harassment cases are rarely appropriate for disposition on summary judgment; and that the legal standard for sexual harassment does not vary by type of workplace.
Enacted: Protection Against Secret Settlements
SB 820 With settlement agreements, this law prohibits provisions that prevent disclosure of factual information pertaining to claims of sexual assault, sexual harassment, gender discrimination or related retaliation that have been filed in court or before an administrative agency. This new law does not prohibit a provision that prevents the parties to the agreement from disclosing the settlement amount, but, at the claimant’s request, it can limit the disclosure of the claimant’s identity or of facts that would lead to the discovery of the claimant’s identity.
Enacted: Sexual Harassment Training for All Employees and Small Employers
SB 1343 expands the sexual harassment training requirement to include employers with at least 5 employees. Currently, employers with 50 or more employees are required to provide at least 2 hours of sexual harassment prevention training to all supervisors and managers every 2 years, or within 6 months of an employee becoming a supervisor or manager. The amendment also requires employers to provide at least one hour of training to non-supervisory employees by January 1, 2020, and once every 2 years thereafter.
Enacted: Freedom to Testify About Criminal Conduct and Sexual Harassment
AB 3109 states that any provision in a contract or settlement agreement will be deemed unenforceable if it prohibits testimony about criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding. This covers only testimony that is required, such as by subpoena or a court order, or in response to a written request in an administrative or legislative hearing.
Enacted: Statute of Limitations for Sexual Assault Claims
AB 1619 extends the amount of time individuals may file a civil action for damages for sexual assault from three years to 10 years after the alleged assault or three years after the plaintiff discovered or reasonably discovered injury as a result of the assault, whichever is later.
Enacted: More Women on Boards of Directors
SB 826 requires publicly-held domestic and foreign corporations with its main executive offices in California to have a minimum of one female director on their boards by the end of 2019. Depending on the board’s size, as many as three female members may be required by the end of 2021.The fine for violating this law is $100,000 for the first violation and $300,000 for a second violation and any subsequent violations.
Enacted: Expanding Lactation Accommodation
AB 1976 brings California more in line with federal law, which requires employers to provide a lactation location other than a bathroom. As of now, employers in California must provide a private location in close proximity to where female employees work, other than a toilet stall, for them to express breast milk. The new law will provide undue hardship exemptions under limited circumstances.
Enacted: Criminal Background Checks
SB 1412 narrows an employer’s ability to consider sealed or expunged convictions to only those circumstances where a particular conviction would legally prohibit someone from holding that job. Right now, state law generally prohibits employers from considering an applicant’s judicially sealed or expunged convictions.
Enacted: Paid Family Leave Use for Call to Active Duty/Military Service
SB 1123 expands the scope of the disability insurance program to provide partial wage replacement benefits to employees who take time off for reasons associated with being called to active duty or the call to duty of the employee’s spouse, domestic partner, parent or child. Under California’s temporary disability insurance program, these benefits are provided to employees who take time off work for specified purposes.
Enacted: Human Trafficking Training for Hotel/Motel and Mass Transit Employers
SB 970 & AB 203 amends the Fair Employment and Housing Act to require that hotel, motel and mass transit employers train and educate employees who are likely to come in contact with victims of human trafficking. By January 1, 2020, these employers must provide “at least 20 minutes of classroom or other effective interactive training and education regarding human trafficking awareness” to any employee “who works in a reception area, performs housekeeping duties, helps customers in moving their possessions, or drives customers.” Existing law requires certain California businesses to post a notice relating to slavery and human trafficking.
Enacted: Talent Agencies Required to Provide Sexual Harassment Education
AB 2338 requires talent agencies to provide educational materials on sexual harassment prevention, retaliation, and reporting resources to adult artists and minors aged 14 to 17 and their parents and legal guardians, within 90 days of retention. For adult model artists only, talent agencies are required to provide materials on nutrition and eating disorders. Talent agencies must retain records for three years showing that the required educational materials were provided.
Enacted: Expansion of Relationships Subject to Sexual Harassment Claims
SB 224 expands the reach of sexual harassment claims under Civil Code § 51.9, which covers non-employment relationships. The amendments to Civil Code § 51.9 allow a plaintiff to prove a cause of action for sexual harassment against a defendant who held himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship, and specifically identifies investors, elected officials, lobbyists, directors, and producers among the potential defendants.
Enacted: PAGA Relief for Unionized Construction Employers
AB 1654 provides that unionized workers in the construction industry covered by certain collective bargaining agreements (“CBA”) will be exempt from the Private Attorneys General Act of 2004, commonly referred to as PAGA. As the number of PAGA lawsuits continues to increase in California, AB 1654 provides construction industry employers with an opportunity to resolve such disputes through entering into a collective bargaining agreement with a labor union.
Enacted: Sexual Harassment Training for In-Home Supportive Services
AB 3082 requires the In-Home Supportive Services (“IHSS”) program, administered by the State Department of Social Services and counties, to develop or otherwise identify standard educational material about sexual harassment and the prevention thereof to be made available to IHSS providers and recipients and a proposed method for uniform data collection to identify the prevalence of sexual harassment in the IHSS program.
Enacted: Retailers Jointly Liable for Trucking Labor Violations
SB 1402 makes retailers jointly liable for violations of state labor and employment laws when they hire trucking companies with unpaid final judgements for failure to pay truck driver wages, imposing unlawful expenses on employees, failure to remit payroll taxes or to provide worker’s compensation insurance, misclassifying employees as independent contractors, and other labor law violations.
Enacted: Emergency Ambulance Employee Safety and Preparedness Act
Proposition 11 allows private ambulance companies to continue their current practice of having emergency medical technicians and paramedics stay on-duty during their meal and rest breaks in order to respond to 911 calls. Private ambulance companies would attempt to reschedule meal and rest breaks that are interrupted by a 911 call.
Introduced: California Community Colleges Waive Fees for Two Years
AB 2 would expand the California College Promise to cover two academic years for certain students. Currently, the program waives some or all fees for certain students enrolled in at least 12 credits a semester, and who have filled out either the Free Application for Federal Student Aid or the California Dream Act application.
Introduced: Janitorial Workers: Sexual Violence and Harassment Prevention Training
AB 2079 empowers janitors to prevent rape on the night shift. This new law requires janitorial companies to allow workers to train each other on how to effectively exert their rights in the face of harassment. All employers applying for new or renewed registration must demonstrate completion of sexual harassment violence prevention requirements and provide an attestation to the Labor Commissioner. AB 2079 would also prohibit the Labor Commissioner from approving a janitorial service employer’s request for registration or for renewal if the employer has not fully satisfied a final judgment to a current or former employee for a violation of the Fair Employment and Housing Act.
Competing Bills Follow Supreme Court Decision on Definition of an Independent Contractor
AB 71 and AB 5 were proposed in response to the blockbuster decision by the California Supreme Court in the Dynamex case, where the court adopted an entirely new test for determining whether an individual is an employee or an independent contractor. This new legal standard, known as the “ABC Test,” provides a much narrower definition of an independent contractor than we have previously seen in California. Under the ABC Test, the hiring entity must establish all three of the following in order to classify a worker as an independent contractor: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact; (B) the worker performs work that is outside the usual course of the hiring entity's business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.
Introduced: Roll Back Dynamex Decision
AB 71 seeks to enact clear provisions protecting independent workers while rolling back the dangerous precedent set in the California State Supreme Court decision Dynamex Operations West v. Superior Court. These factors include, but are not limited to, the right to fire at will without cause and how to determine the method of payment, whether it’s by the job or the time it takes.
Introduced: Expand protections for Independent Contractors
AB 5 is intended to strengthen employee rights and define the role of an independent contractor. AB 5 would add to state law the “ABC test” regarding independent contractors and create a presumption that a worker who performs services for a hire is an employee.