NEW 2019 LABOR LAWS AFFECTING CA EMPLOYERS

Minimum Wage: Minimum Wage is $12.00 per hour effective January 1, 2019 for employers with 26 or more employees, and $11.00 per hour for employers with 25 or fewer employees. The minimum wage will continue to increase $1.00 per hour each year up to $15.00 per hour in 2022 for employers with 26 or more employees and 2023 for employers with 25 or fewer employees.

Effective January 1, 2019, agricultural employers under Wage Order 14 with 26 or more employees must pay their employees time and a half after 9.5 hours of work per day or 55 hours per week. Agricultural employers with 25 or fewer employees remain covered by old rules of paying time and a half only after 10 hours per day or 60 hours per week. This change in the law provides for a phasing in over a four year period for agriculture employees of the same overtime requirements that apply to all California hourly employees, e.g. overtime after 8 hours per day, 40 hours per week and the first 8 hours on the seventh consecutive day worked in a workweek; double time after 12 hours per day and after 8 hours on the seventh consecutive day worked in a workweek. This law also eliminates the existing agricultural exemption in the Labor Code relating to one day’s rest in seven worked.

Construction Industry PAGA Prohibition: AB 1654 prohibits construction industry employees from pursuing a Private Attorneys General Act (PAGA) claim where the worker is covered by a collective bargaining agreement and the CBA includes a grievance and binding arbitration procedure to address potential Labor Code violations. The CBA must meet certain conditions: prohibits all of the violations of the Labor Code that would be redressed by PAGA and provides for grievance and binding arbitration procedure to redress those violations; expressly waives the requirements of PAGA in clear and unambiguous terms; authorizes the arbitrator to award any and all remedies otherwise available under the labor code (other than those that would be payable to the state). The carve out under AB1654 expires on the date the collective bargaining agreement expires, or on January 1, 2028, whichever is earlier.

Paid Family Leave: In 2021, SB1123 will go into effect allowing employees to collect Paid Family Leave (PFL) benefits if they take time off for activities related to the covered active duty status of their spouse, registered domestic partner, child or parent who is a member of the US Armed Forces. These activities are called “qualifying exigencies” and include: official military ceremonies; briefings; changes to child care/financial/legal arrangements as a result of military service; counseling; or spending time with the covered service member during rest and recuperation leave, among others. PFL is not a mandated leave. However, if the employee is eligible for Family and Medical Leave (FMLA), they are eligible for up to 12 weeks of protected leave for qualifying exigencies and therefore would be eligible for up to 6 weeks of PFL which would run concurrently with FMLA.

Lactation Accommodation: AB1976 modifies current CA law covering Lactation Accommodation requiring employers to provide a room or other location, other than a toilet stall, in close proximity to the employee’s work area for an employee to express milk in private for the employee’s child. The new law replaced the term “toilet stall” with “bathroom”. In addition, employers that make a temporary lactation location available shall be considered in compliance if ALL of the following conditions are met: 1) they are unable to provide a permanent lactation location because of operational, financial or space limitations; 2) the temporary location is private and free from intrusion while an employee expresses milk; 3) the temporary location is used only for lactation purposes while an employee expresses milk; and 4) the temporary location otherwise meets the requirements of state law concerning lactation accommodation.

Salary History: The 2018 law banning inquiries about salary history and requiring employers to provide pay scales to applicants upon request have been clarified in AB2282 : 1) employers may ask about salary expectations for the position applied for; 2) only external applicants (not current employees) are entitled to a pay scale upon request, and only after completing an initial interview; and 3) the pay scale provided only needs to include salary or hourly wage ranges. Compensation decisions based on a current employee’s existing salary, such as for giving raises or bonuses, will be permissible if justified by factors such as a seniority or merit system, a system that measures earnings by quantity or quality of production; or a bona fide factor other than sex, race or ethnicity such as education, training or experience that is job related for that specific position.

Harassment – Defamation Protection: Under CA law, 1) employees who report sexual harassment, based on credible evidence and without malice, won’t be liable for injury to the alleged harasser’s reputation; communications between the employer and victims/witnesses will be protected; and an employer will now be permitted to reveal in a job reference whether an individual is not eligible for rehire because the employer determined that he/she engaged in sexual harassment.

Confidentiality Clauses in Settlement Agreements: SB820 prohibits any settlement agreement entered into on or after January 1, 2019, any provision that prevents the disclosure of information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex.SB820 expressly authorizes provisions that a) preclude the disclosure of the amount paid in settlement, and b) protect the claimant’s identity and any fact that could reveal the identity so long as the claimant has requested anonymity and the opposing party is not a government agency or public official.

Sexual Harassment: SB1300 makes several changes to CA’s Fair Employment and Housing Act (FEHA) relating to workplace harassment claims. It will prohibit an employer from requiring an employee, in exchange for a raise or bonus, or as a condition of employment or continued employment to: 1) Agree not to sue or bring a claim against the employer under FEHA; or 2) sign a non-disparagement agreement preventing the employee from disclosing information about unlawful acts in the workplace, including but not limited to sexual harassment. This does not apply to negotiated settlement agreements or severance agreements. This law also expands employer liability for unlawful harassment by nonemployees and prohibits a prevailing defendant from being awarded attorney’s fees and costs unless specific factors are proven.

Sexual Harassment Training: By January 1, 2020, employers with 5 or more employees must provide sexual harassment training to both supervisors and non-supervisorial employees. Supervisors must receive the required two hours of sexual harassment training and all other employees must receive one hour of training within 6 months of hire or promotion, and every two years after that. Temporary and seasonal employees must be trained within 30 days of hire or 100 hours worked, whichever is earlier if they are scheduled to work 6 months or less. In the case of temporary employees hired through a temporary service, the temporary service is responsible for providing the training.

Copies of Payroll Records: SB1252 clarifies existing law and requires employers to make and provide copies of payroll records to employees rather than requiring employees to find ways to make the copies themselves.

Workplace Health/Safety and Workers’ Compensation: Employers’ liability for workplace injury reporting violation penalties will be extended from six months to five years under AB2334. A change in the code’s definition of an “occurrence” as it relates only to citations for recordkeeping purposes means citations may be issued for the entire five-year mandatory record retention period until they are corrected or discovered by the California Division of Occupational Safety and Health (Cal OSHA), or until any recordkeeping duty is eliminated.

Joint Liability – Port Trucking Companies: Joint liability will be imposed on client employers who hire port drayage motor carriers (trucking companies) with certain unpaid employment related judgments, affecting businesses such as retailers, agriculture and auto dealers who rely on port truckers to transport products from ships. Port trucking companies will be placed on a Division of Labor Standards Enforcement website “blacklist” if they have an unsatisfied final judgment for taxes, various wage and hour violations, unreimbursed expenses, failure to provide workers’ compensation coverage, or independent contractor misclassification. A customer that uses a port trucking company on the blacklist will share all civil legal responsibility and civil liability for services obtained after the date the trucking company appeared on the list.

Direct Contractor: For certain private construction contracts, last year’s AB 1701 imposed liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to a worker under the contract. AB1565 was passed this year to remove a provision placed into the Labor Code by AB1701 that indicated a direct contractor’s liability for unpaid wages or benefits is in addition to any obligations and remedies otherwise provided by law and makes other clarifying changes. AB 1565 was effective September 19, 2018.