Posted in Employment Law
A number of new laws impacting California employers go into effect in 2019. Some apply narrowly to specific industries others cover most employers.
Oil Facility Emergency Responder Exception for Employee Breaks
The California Supreme Court in its 2016 decision Augustus v ABM Security Services held that the plaintiffs (security guards) need to be completely relieved of work obligations during their statutorily mandated rest breaks. The court ruled that state law prohibits “on-duty” and “on-call” rest breaks when workers may need to return to work at a moment’s notice. The state legislature created an exception for those holding safety-related jobs at facilities involved in the processing, refining, transport or storage of crude oil or petroleum products. They may be required to carry a communication device and respond to an emergency even when “on break,” but must be paid for any rest period interrupted or missed. This is effective September 20, 2019.
No Required Meal Break for Drivers Hauling Animal Food
Another exception to mandatory breaks concerns meal breaks for drivers hauling animal food. The legislature reasoned that commercial drivers dealing with time sensitive deliveries may not be able to safely leave the roadway and take a meal break. They can, instead, take a meal period break after their delivery was made. This law goes into effect January 1, 2019.
Nursing Mothers Get More Space
When California law requiring employers to provide a place for nursing mothers to express their milk at work was first enacted for many employers that place was a bathroom. That’s not good enough for the state legislature which enacted a new law mandating employers to make reasonable efforts to provide a room or other location in close proximity to the employee’s work area, other than a bathroom. If it’s not feasible a temporary location can be used if it’s private, free from intrusion and used only for lactation purposes. The law is effective January 1, 2019.
#MeToo Movement Impacts State Laws
The #MeToo movement backlash against sexual harassment received substantial traction in the state legislature resulting in a number of new laws. They go into effect on January 1, 2019.
- One makes unenforceable any contract or settlement agreement language waiving a party’s right to testify in a criminal proceeding or a sexual harassment lawsuit.
- Another new law prohibits settlement agreements in civil actions from barring a party from disclosing factual information concerning alleged workplace harassment or sex discrimination (except for the name of the claimant).
- Employers are prohibited from requesting employees sign a release of a claim or right under the state Fair Employment and Housing Act (FEHA) in order to receive a raise or bonus or as a condition of employment or continued employment. An employee also cannot be required to accept a nondisparagement agreement or other document that prevents the person from disclosing information about unlawful acts in the workplace, including sexual harassment.
- Current law makes some communications privileged so they can’t be used as the basis of a civil action, including statements about a person’s job performance or qualifications of a job applicant, if they are made without malice by a current or former employer to a prospective employer. A new law expands that privilege to include complaints of alleged sexual harassment by an employee. A current or former employer could also state whether or not the employer would rehire a current or past employee. If the response is the person wouldn’t be rehired it could be disclosed that decision is based the former employee’s sexually harassing behavior.
- Employers having fifty or more employees have been mandated to train supervisors every two years on the prevention of workplace sexual harassment and what to do after allegations are made. That requirement now includes every employer with five or more employees and the training must be given to all employees, not just supervisors. Supervisor training must be two hours while it can be one hour for other employees. Employers have until January 1, 2020, to comply.
Human Trafficking Training for Hospitality Employees
Hotels and motels need to train employees likely to come into contact with victims of trafficking human trafficking awareness. The deadline to start doing this is January 1, 2020.
New Protections for Drayage Drivers at California Ports
These drivers working at the state’s ports are often misclassified as independent contractors, not employees. Not only can this lead to wage theft, lost benefits and increased taxes but since they need to pay for their own trucks they can be at the mercy of unscrupulous trucking companies. The state legislature declared them “the last American sharecroppers.” A new law forces customers of certain port drayage motor carriers to share liability with the carrier for its failure to comply with worker classification laws. This is effective January 1, 2019.
Restrictions on FEHA Action Attorney’s Fees for Defendants
A new law states a defendant that prevails in a FEHA action cannot be awarded fees and costs unless the court finds that the lawsuit was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” This goes into effect January 1, 2019.
Attorneys Need to Provide New Disclosures Before Mediations
The California evidence code states what’s been said, admitted or communicated in writing in preparation for mediation is not admissible and can’t be requested during the discovery process in a later proceeding. This includes legal malpractice claims, which may come as a surprise for some clients. To better inform clients, attorneys need to have them sign a disclosure before mediation, acknowledging the client understands these restrictions. The law is effective January 1, 2019.
Discrimination and Apprenticeship Programs
Under new Labor Code provisions effective January 1, 2019,
- Anyone willfully discriminating in recruitment or an apprenticeship program on any basis protected by FEHA can be found guilty of a misdemeanor.
- Discrimination is expressly prohibited in any building and construction trade apprenticeship program.
Legislature Clarifies Its Intent Concerning Workplace Harassment
The legislature, through statutory language, stated what needs to be shown to sustain a harassment claim filed under FEHA,
- Under the 1993 US Supreme Court decision Harris v Forklift Systems the court stated, “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.” Following this decision the legislature states it’s sufficient to prove that a reasonable person subjected to the conduct would find it made the job more difficult.
- A single incident of harassing conduct, if severe enough, can be sufficient to create a triable issue about whether or not there was a hostile work environment.
- A discriminatory remark, even if made by someone who didn’t make an employment related decision, may be relevant in proving a hostile work environment.
- The legal standard for sexual harassment should not vary by type of workplace.
