In his first year in office, Governor Gavin Newsom signed a number of new California workplace-related bills that create new compliance obligations for employers in the state. We highlight the key employment related bills signed in 2019 below:
Codifying Dynamex and the ABC Test
Referring to the bill as “landmark legislation,” Governor Newsom signed AB 5 into law, which becomes effective on January 1, 2020. In sum, the new law codifies the “ABC test” laid out in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. 5th 903, which sets forth a three-part test for determining whether a worker qualifies as an independent contractor. The bill exempts certain occupations but gig-economy workers (such as ride-share drivers) are not included in the exemptions.
Extension for Anti-Harassment Training Requirement
SB 778 revised mandatory anti-harassment training deadlines, and resolved confusion about re-training requirements for employees who already received training in 2018 or 2019. The new law extends the deadline for employers with five or more employees to provide sexual harassment prevention training as well as employers to provide one hour of training to non-supervisory employees (in addition to two hours for supervisors) to January 1, 2021.
Expanding the Definition of Race
SB 188 (Crown Act), expands the Fair Employment and Housing Act’s definition of race to include traits historically associated with race, such as hair texture and “protective hairstyle” (e.g., braids, locks, and twists).
Ban on Mandatory Arbitration Agreements for Discrimination Claims
Signed by Governor Newsom on October 10, AB 51 prohibits employers from requiring applicants or employees to waive “any right, forum, or procedure” for a violation of any provision of the Fair Employment and Housing Act or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit. The bill also prohibits employers from threatening, retaliating or discriminating against, or terminating any applicant or employee because of the refusal to consent to the waiver of “any right, forum, or procedure” for a violation of specific statutes governing employment. This bill also makes violations of the prohibitions described above, unlawful employment practices under the Fair Employment and Housing Act. Many similar bills have been proposed in the past, but this is the first one that has been enacted into law.
Statute of Limitations on the FEHA
Also signed on October 10, AB 9 extends the period within which a claimant may file a complaint with the Department of Fair Employment and Housing (“DFEH”) from one year to three years. It does not apply to revive lapsed claims.
SB 142 requires employers to provide a lactation room for employees that meets certain requirements such as: (1) be safe, clean, and free of toxic or hazardous materials; (2) contain a surface to place a breast pump and personal items; (3) contain a place to sit; (4) have access to electricity; and (5) have access to a sink with running water and a refrigerator in close proximity to the employee’s workplace. The bill also makes a denial of lactation break time or space a violation under rest period laws and subjects the employer to a $100 penalty per violation. The bill requires employers to develop and implement a lactation accommodation policy which must be included in employee handbooks and provided to new employees or when an employee inquires about or requests parental leave. Lastly, the bill imposes new building standards by requiring the California Building Standards Commission to adopt new rules which will require the installation of lactation spaces.
Prohibition of “No Rehire” Provisions
Signed on October 12, AB 749 prohibits settlement agreements from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person, from working for the employer against which the aggrieved person has filed a claim or any parent company, subsidiary, division, affiliate, or contractor of the employer. The bill also clarifies that an employer and an aggrieved employee are free to agree to end the employment relationship, or to prohibit or otherwise restrict the employee from obtaining future employment with the employer, if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault. The bill also clarifies that employers are not required to continue to employ or rehire a person if there is a legitimate non-discriminatory or non-retaliatory reason for terminating or refusing to rehire the person. The bill provides that a provision in an agreement entered into on or after January 1, 2020, that violates this prohibition is void as a matter of law and against public policy.