Date: Jan 07, 2019
Magazine:
January/February 2019

The Democratic-controlled California Legislature was very busy last year, passing over 1,200 bills, more than 1,000 of which were signed into law by the governor. Dozens of employment and labor bill were signed into law, and several of those were instigated by the #MeToo movement. All of the laws summarized below are effective January 1, 2019, unless otherwise noted.

 

Sexual Harassment Prevention Training

SB 1343 provides that employers with at least five employees must provide at least two hours of sexual harassment prevention training to all supervisory employees and at least one hour of sexual harassment prevention training to all non-supervisory employees in California by January 1, 2020, and every two years thereafter. This is a major change from existing law, which required companies with 50 or more employees to provide such training, and only to supervisors. The law also directs the California Department of Fair Employment and Housing (DFEH) to develop, and make publically available, training materials that comply with the new requirements. Employers can direct employees to the DFEH online training materials or use those materials to develop and deliver their own training.

The law applies to temporary and seasonal workers. Beginning January 1, 2020, employers are required to provide such training to any employee hired to work for less than six months within 30 days after the date of hire or within 100 hours worked, whichever comes first. “Temporary services employers” (i.e., temp agencies and staffing companies) are required to provide the training to their employees, not the client.

 

Non-Employee Harassment

SB 1300 amends the Fair Employment and Housing Act (FEHA) relating to workplace harassment claims. First, it prohibits an employer from requiring an employee to agree not to sue or bring a discrimination claim under the FEHA in exchange for a raise or bonus or continued employment. Employees also can’t be compelled to sign a non-disparagement agreement or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including sexual harassment, except as part of a negotiated settlement agreement resolving an employee’s claim brought in an official forum or through the employer’s complaint process.

The new law also greatly expands the legal standard of harassment, including for example, expressly stating that a single incident is sufficient to prove harassment if the conduct unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile or offensive work environment. Under SB 1300, employers may be liable for sexual harassment committed by non-employees if the employer knew or should have known of the harassment but failed to take appropriate corrective action.

 

Restrictions in Confidentiality of Settlements

SB 820 prohibits settlement agreements from containing provisions preventing the disclosure of factual information related to claims of sexual harassment, sexual assault, and workplace harassment or discrimination based on sex, including retaliation for reporting such behavior.

The law still permits parties to keep the settlement amount and information about the claimant’s identity confidential, if the claimant requests. The new law applies to agreements entered into on or after January 1, 2019.

Under AB 3109, parties are prohibited from entering into an agreement that waives a party’s right to testify regarding criminal conduct or sexual harassment in an official proceeding, where such testimony is otherwise required by a court, agency or legislative body. Such provisions are unenforceable in any agreement entered into on or after January 1, 2019.

 

Lactation Accommodation

AB 1976 requires employers to provide a private location, other than a bathroom, for employees to express milk for the employee’s child and to afford employees a reasonable opportunity and amount of time to do so. The law expressly states that an agricultural employer is deemed to be in compliance if it provides an employee with a private, enclosed, and shaded space (e.g., an air-conditioned cab of a truck or tractor) to express milk.

 

Human Trafficking Notice

AB 2034 requires specified businesses, including farm labor contractors, to post a compliant notice regarding human trafficking in a conspicuous location in clear view of the public and employees where similar notices are customarily posted and to conduct employee training. Businesses subject to this posting requirement must comply starting January 1, 2019, and may use the model notice that is available for download on the State of California Department of Justice’s website.

 

Ag Overtime

AB 1066, which was signed into law in 2016, will gradually reduce the standard 60 workweek in agriculture to eight hours in a day and 40 hours in a workweek, over a four-year period. Beginning January 1, 2019, the requirement to pay overtime will kick in after an agricultural employee works 9.5 hours in a day or 55 hours in a workweek. The change applies to only those employers who employ 26 or more employees. Employers who employ 25 or fewer will be subjected to these new requirements on January 1, 2022, with an 8/40 workweek phased in over four years.

While the Department of Industrial Relations has not, as of this writing, received final approval from the Office of Administrative Law to update Industrial Welfare Commission Wage Order 14 (which covers wages and working conditions for agricultural employees), the updated wage order is expected to eliminate the overtime exemption for irrigators working for large employers on January 1, 2019.

 

State Minimum Wage Increase

The state minimum wage is set to increase to $12.00 per hour for employers with 26 or more employees. The rate is $11.00 for employers with 25 employees or fewer. The minimum salary under the white collar overtime exemption test is two times the state minimum wage or $49,920. Also, there are about 25 cities and counties that have their own minimum wage, and many of those will also increase on January 1, 2019.

The Adverse Effect Wage Rate, payable to H-2A workers and others in “corresponding employment” is expected to increase to $13.92 in California, $12.00 in Arizona, and $13.13 in Colorado and New Mexico, respectively.

 

Feed Truck Drivers

AB 2610 provides a limited meal break exception for commercial drivers transporting commercial feed to customers in remote rural areas, and authorizes them to commence the meal period after six hours of work under certain conditions. To qualify, the driver must be transporting nutrients and byproducts from a licensed commercial feed manufacturer to a customer located in a “remote rural location” and the driver must be paid at least 1.5 times the state minimum wage and receive overtime compensation as required by law. In addition, the driver must be provided a second meal period at the tenth hour of work in a day.

 

Payroll Records

Existing law allows employees to “inspect or copy” their personnel records. SB 1252 makes clear that employers must furnish copies of personnel files, wage statements and other employment-related records to employees, not just provide the employee the opportunity to make their own copies.

 

Salary History

Existing law prohibits employers from inquiring about an applicant’s salary history and requires employers to provide the pay scale for a position to an applicant upon request. AB 2282 amends the Labor Code to clarify that:

•  Employers can consider salary history information disclosed voluntarily and without prompting;

•  Employers may ask about an applicant’s salary expectations for the position they applied for;

•  Only applicants other than current employees may request and receive the pay scale for a position, and only after completing an initial interview; and

•  The pay scale provided only needs to include salary or hourly wage ranges (not bonuses or equity ranges).

In addition, employers may make compensation decisions based on a current employee’s existing salary if justified by one or more factors such as a seniority system, merit system, system that measures production, or a bona fide factor other than race or ethnicity, such as education, training or experience.

 

Paid Family Leave

AB 2587 removes the seven-day waiting period before an employee is eligible to receive Paid Family Leave wage replacement benefits to take time off to care for a seriously ill family member or to bond with a new child.

Western Growers members are encouraged to review their existing employment practices and employee handbooks, and to make all necessary updates to ensure compliance with the new laws.

WG Staff Contact

Jason Resnick
Vice President & General Counsel
949-885-2253

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