NEW EMPLOYMENT LAWS THAT WILL AFFECT EMPLOYERS
By: Jeanne Rosenberg

Governor Jerry Brown has signed all the legislative bills for 2018, his last as Governor of California, clearing the way for newly elected Governor Gavin Newsom to take his place next year. We now provide you with a compilation of employment related laws effective January 1, 2019, except when otherwise indicated.

AB 1066: Phase In of Overtime for Farmworkers

AB 1066, which went into effect in 2017, phases in new overtime requirements for agricultural employers, the first of which begins as the clock strikes midnight at the New Year.  Starting in 2019, AB 1066 lowers the 10-hour-day threshold for overtime to 9.5 hours in a day and 55 hours per week when overtime pay is required. This only applies to employers with 26 or more employees.

Not only does this affect overtime wages, but also causes an adverse effect to employees on the minimum amount of paid sick leave employers are required to offer. Under California’s paid sick leave law, employees should be given the greater of either 24 hours or three days of PSL, regardless of whether the frontloading or accrual method is selected. This means that employees whose regular work day are 9.5 hours would get a minimum of 28.5 hours of paid sick leave per year.

For more information regarding this bill and its gradual phase-in to the standard 8 hour day/40 hour workweek model, see our previous post here.

SB 1300: Expanded Fair Employment and Housing Act

As we previously reported here, employers will be prohibited, with certain
exceptions, from requiring an employee to sign a release of claims under the Fair Employment and Housing Act in exchange for a raise or bonus, or as a condition of employment or continued employment. Employers are also prohibited from requiring an employee to sign a non-disclosure agreement that aims to deny the employee the right to disclosure of unlawful acts in the workplace, including sexual harassment.

SB 820: Settlement Disclosure of Sexual Harassment Claims

Settlement agreements entered into will prohibit and make void any provision that prevents the disclosure of factual information related to civil or administrative complaints of sexual harassment, sexual assault, workplace harassment, or discrimination based on sex. As previously reported here, this bill does not prevent parties from mutually agreeing to settle, but it will prohibit individuals and/or businesses from requiring a claimant to remain silent about the alleged assault/harassment as a condition of settlement. Further, SB 820 expressly authorizes provisions that (1) preclude the disclosure of the amount paid in settlement of a claim and (2) protect the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested such anonymity and the opposing party is not a government agency or public official.

AB 3109: Disclosure of Sexual Harassment

AB 3109 makes a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in any proceeding concerning alleged criminal conduct or sexual harassment. In many settlement/severance agreements, it is not uncommon to include a provision that a former employee will not participate in any actions against the employer or will not make any disparaging remarks against the employer. Now, any provision that does not allow an employee to testify when they are required by subpoena or requested in writing by an administrative agency or legislature will be void. This bill was previously reported here.

SB 1343: Expanded Duties for Employers Regarding Sexual Harassment Training

SB 1343 requires an employer of five or more employees to provide sexual harassment training within 6 months of assuming their position and once every two years thereafter. By January 1, 2020, all supervisors must receive at least two hours of training, and all nonsupervisory employees must receive at least one hour. For more information regarding this bill, see our previous post here.
AB 1976: Accommodation for Lactation
This bill requires employers to make reasonable efforts to provide workers with a use of a room or private area that is not a restroom to pump breast milk. Existing law required that employers only make a reasonable effort to provide both a lactation space that is not a bathroom stall. If an employer can demonstrate that providing a separate room (other than a bathroom) would create an undue hardship, an employer shall make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. For more information regarding this bill, see our previous post here.

AB 1654: Expanded Exemption of PAGA Claims for Union Construction Employers

This bill exempts employers in the construction industry from claims under the Private Attorneys General Act of 2004 (“PAGA”) if the employees are covered under a valid collective bargaining agreement (“CBA”) in effect any time before January 1, 2025 that expressly provides for the wages, hours of work, and working conditions of employees. As previously posted here, this applies to any CBA in currently in effect until the CBA expires or January 1, 2028, whichever is earlier.

SB 1252: Right to Receive a Copy of Employment Records
Labor Code section 226 is amended to provide employees the right to receive a copy of their employment records. If requested by the employee, the employer must provide copies to the employee rather than require the employee copy the records on their own.

SB 224: Sexual Harassment Relationships Expanded to Venture Capital Industry
Civil Code section 51.9 is amended to expand the definition of sexual harassment under the Unruh Act, a California civil rights law that prohibits discrimination based on things like sex, race, religion, age and disability. The Unruh Act, in its previous form, prohibited sexual harassment between people who have a business relationship but don’t work for the same company and the plaintiff was not able to easily terminate the business relationship. Now, under SB 224, a plaintiff has a viable claim for sexual harassment if they prove, among other things, that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party. In addition, the amendment eliminates the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship.

Furthermore, to drive the point home, the statute has been amended to specifically include lobbyists, elected officials, directors, producers, and investors as examples of persons that can be subject to a claim for sexual harassment.

SB 1412: New Limits on Criminal Background Checks

Labor Code section 432.7 is amended to limit the exception for both public and private employers that are required by law to screen applicants using a criminal background check. The new law only permits inquiries about an applicant’s criminal history to a “particular conviction” that is relevant to the position sought by the applicant. Particular convictions is defined as “conviction for specific criminal conduct or a category of criminal offenses prescribed by [law] that contains requirements [and/or] exclusions…expressly based on that specific criminal conduct or category of criminal offenses.” Inquiries into particular convictions are only permitted in the following situations:

  • The employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation;
  • The employer requires the applicant to possess or use a firearm in the course of his or her employment;
  • An individual with that particular conviction is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation;
  • The employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

SB 826: Women on Corporate Boards
By close of 2019, SB 826 requires public companies whose principal executive offices are located in California to have at-least one female director on its board. By the close of 2021, must comply with the following standards:

  • Four or fewer board members: minimum of 1 female director;
  • 5 board members: 2 female directors;
  • 6+ board members: minimum of 3 female board members.

For more information regarding this bill, see our previous post here.

SB 970: Human Trafficking

As previously posted here, by January 1, 2020 and every two years thereafter, hotels and motels must provide at least 20 minutes of training and education regarding human trafficking awareness to an employee who will likely interact or come into contact with victims of human trafficking, such as an employee who works in a reception area, performs housekeeping duties, help customers in moving their possessions, or drives customer.
COUNSEL TO MANAGEMENT:

There are a lot of new laws this year; please make sure to take the time to understand the implications of these laws and how they may affect your company. If you have any questions or concerns regarding the new bills or how to comply with their requirements, please do not hesitate to contact the experts at the Saqui Law Group.

Welcome to WAPA

Governor Signs Ag Overtime Bill

Ignoring the pleas of real farmworkers and the agricultural industry, Governor Edmund G. Brown Jr. today signed AB 1066, the ag overtime legislation. This means that California will have the most stringent trigger of any state in the country for overtime for farmworkers, with 45 states having no overtime protection at all. The Governor signed this bill, supposedly to bring “equality to all workers”, yet taxi cab drivers, commercial fishermen, car salesmen, student nurses, computer programmers, and carnival workers all work without any overtime provisions whatsoever. The Governor signed this ag overtime bill in the same year that minimum wage legislation was also passed that will take California to the highest minimum wage as well as legislation forcing California to adopt additional greenhouse gas regulations for businesses in California. California is the only state in the country subject to such regulations. Today’s signing occurred despite numerous requests by the agricultural industry to meet with the Governor to discuss our concerns. The message is clear. California simply doesn’t care. These provisions will be phased in over the next few years ending with the overtime provisions to be triggered at 8 hours per day and 40 hours per week.

In the Beginning As folks transitioned out of cotton and into tree nuts, the industry recognized the need to have active and effective representation at the local, state and national levels. Having enjoyed such effective representation over the years from the California Cotton Ginners and Growers Associations, these folks yearned for the same representation in the tree nut processing industry. Issues such as air quality, food safety, labor, taxes, employee safety, and environmental concerns are at the forefront, and there is a significant need for an aggressive and dynamic Association to lead the industry into the next decade and beyond. In recognition of this, the Western Agricultural Processors Association was created in 2009. The Western Agricultural Processors Association (WAPA) shares staff and office space with the California Cotton Ginners and Growers Associations taking advantage of a unique and opportunistic situation. WAPA is a voluntary dues organization with four shared staff and one dedicated staff person. Regulatory, legislative and legal issues fall under the purview of this new organization for the tree nut processing industry, which includes almonds, pecans, pistachios and walnuts. From air quality permits to conditional use permits, from regulatory hearings on greenhouse gases to federal legislation on food safety, and from OSHA violations to assisting members on hazardous materials business plans, no issue is too small or too large for WAPA. WAPA has assembled one of the best and most capable staffs in the industry, and the results are already starting to show Membership The Western Agricultural Processors Association represents facilities involved in the processing of almonds, pecans, pistachios and walnuts.Membership in the Association is classified as Regular memberships are limited to almond hullers or processors, pecan and pistachio processors, and walnut dehydrators and processors. Associate memberships are limited to any individual or business entity which is not engaged in agricultural processing, but which provides products or services directly related to the agricultural processing industry. WAPA Associate members include, but are not limited to, commodity brokers, accounting firms, and insurance brokers. Organization The Western Agricultural Processors Association is governed by a Board of Directors, elected by its membership.The Board consists of up to 15 members from throughout the state, and throughout the industry.The Board meets on a quarterly basis and conducts an Annual Meeting in the spring of each year.WAPA, in conjunction with the California Cotton Ginners and Growers Associations, conducts a special training school for its members focused on safety.In combination with the school, the Association holds a Labor Management Seminar for all of the managers. Consulting Services In researching and considering the concept of forming a new organization, the Boards of Directors for the California Cotton Ginners and Growers Associations instructed staff to perform some of the work on a consulting basis first. The point was to determine the workload from consulting and to determine if there was sufficient interest. In November of 2007, the Association began conducting services under consulting contracts for such services as air quality permits and safety plans.The effort has been so successful that demand has progressed outside the tree nut industry into other agricultural processing facilities, including vegetable dehydration facilities, tomato processing facilities, and wheat mills, as well as cotton gins in Arizona.It was determined by the new Board of Directors of WAPA, that WAPA would maintain the consulting services to provide offsetting income to help with the expenses of getting the new organization up and running.Today, WAPA provides for a long list of satisfied clients in the agricultural processing industry, by providing critical services such as air quality, safety, food safety, and environmental issues (Hazardous Materials Business Plan, Spill Prevention Control and Countermeasure Plans, etc.).