By Sweta Patel
Employers need to be aware of the new California laws going into effect January 1, 2019. Below is a partial list, not exhaustive, of the major developments impacting employers. Please feel free to contact us if you need additional information or have questions.
SB 1300 — FEHA Amendments
FEHA is being amended in a number of respects, including (1) new Gov. Code § 12964.5 makes it an unlawful practice for an employer to require an employee to release a FEHA claim in exchange for a bonus, raise, or continued employment; (2) amendment to Gov. Code § 12940 will make employers liable for any kind of unlawful harassment by non-employees (not just for sexual harassment as under existing law) where the employer knew or should have known of the harassment and failed to take appropriate remedial action; and (3) new Gov. Code § 12923 will make it harder for employers to prevail on harassment claims (e.g. a legislative declaration that harassment cases are rarely appropriate for resolution on summary judgment that a single act of harassment may suffice to support a finding of a hostile work environment).
AB 2770 – Harassment Complaints as Privileged Communications
AB 2770 codifies case law into Civil Code § 47 to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made without malice and the employer conducts its internal investigation without malice. AB 2770 extends the scope of that privilege to allow a former employer to say it would not rehire an applicant based on the employer’s determination that the former employee committed sexual harassment.
SB 820 — Limits on Non-Disclosure Agreements
Under the new Code of Civ. Proc. § 1001, settlement agreements from civil or administrative complaints may no longer prevent an individual from disclosing factual information related to claims of sexual assault or harassment or discrimination, including retaliation for reporting sexual harassment or discrimination. A claimant may request a provision in the agreement that conceals all of his or her identifying information. The accused, however, has no such protection. On the bright side, if there is one, parties’ may still require the settlement amount to remain private.
AB 2282 – Clarifies Salary History Legislation
AB 2282 clarifies that although employers may not ask an applicant for salary history information, they may ask about an applicant’s “salary expectation” for the position.
Labor Code § 432.3 requires employers to give “applicants” the “pay scale” for a position upon “reasonable request.” AB 2282 clarifies that:
(1) “Applicant” means an individual who is seeking employment (not a current employee applying internally for transfer or promotion);
(2) “Pay scale” means a salary or hourly wage range (not including bonuses or equity-based compensation); and
(3) “Reasonable request” means a request made after an applicant has completed an initial interview.
In addition, AB 2282 adds that employers are not prohibited from making a compensation decision based on a current employee’s existing salary, so long as any wage differential resulting from that compensation decision is justified by one of the Equal Pay Act factors (seniority or merit system, production system, or a bona fide factor such as education, training, or experience).
AB 1976 — Lactation Accommodation
Labor Code § 1031 currently permits an employer to designate a bathroom (not toilet stall) to be an acceptable lactation location. Under the law as amended, employers must make reasonable efforts to provide a room other than a bathroom in close proximity to the employee’s work area. An employer may provide a temporary lactation location if the employer is unable to provide a permanent location due to operational, financial, or space limitations. The temporary location must be private, free from intrusion when in use, and not used for other purposes when in use.
SB 1252 — Copy of Payroll Records
Labor Code § 226 already requires that employees have a right to inspect or copy their payroll records and that they must be allowed to do so within 21 days of such a request. This amendment clarifies that if an employee requests a copy of the records, the employer must provide the copies (actual cost of reproduction may be charged to the current or former employee).
SB 1412 — Criminal History Inquiries
SB 1412 adds exceptions to Labor Code § 432.7, which limits the information an employer may ask a job applicant about his or her criminal history. The current law prohibits an employer from asking a job applicant to disclose information concerning arrests that did not result in a conviction (with exceptions), referrals to pretrial or post-trial diversion programs, or convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law. The law makes exceptions for employers in certain circumstances, including when an employer is required by law to inquire about a conviction or is prohibited by law from hiring an applicant who has been convicted of a crime.