Employment Law Updates for 2020

Employment law is constantly evolving. Every year, the state of California passes new labor laws that impact the employment relationship. The following are some of the most prominent changes that will take effect on January 1, 2020.

AB 5: Independent Contractors

AB 5 codifies California Supreme Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court, making it more difficult to treat workers are independent contractors. The passage of this bill has been discussed in depth in a previous blog article.

AB 9: Extension of FEHA Statute of Limitations

Under existing law, a person making a claim of discrimination or harassment under the Fair Employment and Housing Act (“FEHA”) must “file a complaint with the Department of Fair Employment and Housing within one year from the date upon which the last unlawful practice occurred.” This is known as exhausting administrative remedies.

The purpose of the administrative exhaustion requirement is to give the DFEH an opportunity to investigate the claim. The original one-year period was implemented due to difficulties in investigating older claims. Over time, witnesses begin to have a vague memory of events.

The legislature has decided that vague memory is no longer an issue. AB 9 extends the statute of limitation period to three years. Therefore, it is even more crucial for employers to maintain appropriate records and take notes of conversations that take place regarding discrimination and harassment.

AB 51: Prohibition of Arbitration Agreements

Under AB 51, employers will no longer be able to compel workers into arbitration for state discrimination claims or those brought under the Labor Code. AB 51 also prohibits arbitration agreements that require employees to opt out of a waiver “or take any affirmative action in order to preserve their rights.”

The stated purpose of AB 51 is to ensure that: (1) all persons have the full benefit of the rights, forums and procedures (rights) established by FEHA and the Labor Code; and (2) there is no retaliation against a person for refusing to consent to the waiver of such rights.

Experts are predicting that this new law will likely be challenged based on federal preemption and the established policy favoring arbitration agreements. Nevertheless, should have a competent attorney review their arbitration agreements and policies that may be perceived as coercive.

AB 749: “No Rehire” Settlement Agreements

The #MeToo movement has already greatly impacted California employment law. Last year, the legislature made all confidentiality provisions in sexual harassment claims void as a matter of law. AB 749 will now make “no rehire” provisions void in settlement agreements entered into on or after January 1, 2020.

This applies to all agreements settling employment disputes. However, the law does include several notable exceptions, including where the employer has made a good faith determination that the individual engaged in sexual harassment or assault. Further, the law does not require an employer to rehire an individual “if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.”

AB 1804: Reporting Occupational Injuries and Illnesses

AB 1804 will require employers to report serious workplace injuries, illnesses, or death immediately by telephone or through an online platform to be developed by the Division of Occupational Safety and Health. There is currently no online platform so, employers are permitted to make these reports by telephone or email until the online platform is created. There is a $5,000 civil penalty for noncompliance.

SB 142: Expansion of Lactation Accommodation Requirements

California law requires all employers to provide all nursing employees with breaks throughout the day to express breast milk. The employer shall make reasonable efforts to provide the 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.

SB 142 expands existing law relating to add a number of new requirements for the lactation space itself, including access to running water and a refrigerator for storing milk. There are also employer policy requirements and document retention obligations. The bill will subject employers to Labor Code penalties for violations.

SB 188: Hairstyle Discrimination

SB 188, the Crown Act, will expand the FEHA’s definition of race to include traits historically associated with race, such as hair texture and “protective hairstyle” (e.g., braids, locks, and twists). The bill takes aim at traditional professional norms by addressing “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks.” Employers are advised to evaluate their current dress and grooming standards.

SB 530: Harassment and Discrimination Prevention Training

California employers of five (5) or more employees, including those who work outside California, are required to provide sexual harassment prevention training to all employees every two years. Supervisors must receive two hours of training, and all other employees must receive one hour of training. SB 530 extends the deadline for mandatory sexual harassment training to January 1, 2021 for employers of seasonal, temporary, or other employees “hired to work for less than 6 months.”

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Daniel Thompson is an employment lawyer with Davis & Wojcik APLC, a Southern California based law firm with offices located in Temecula and Hemet. He can be reached at (951) 652-9000.