California has, at least in recent history, been a frontrunner for employee and workplace rights. Recent movements such as #MeToo and Time’s Up have rallied millions to bring forth change in how we protect our workforce and victims who might have otherwise remained silenced. This article will highlight a few new CA employment laws expected in 2020.
SB 1300—Workplace Harassment Claims
While SB 1300 took effect Jan. 1, 2019, certain portions of the amendments to Government Code Section 12940 will take place as of Jan. 1, 2020.
Specifically, the new amendments would prohibit employers from requiring employees to agree not to sue or bring claims against the employer under FEHA. Sign a non-disparagement agreement regarding disclosing information about unlawful acts within the workplace (it is not limited to sexual harassment) in exchange for bonuses, raises or condition of employee’s employment.
SB 1343—Workplace Harassment Training
SB 1343 originally required employers with five or more employees to provide sexual harassment training to all employees (supervisors and non-supervisors). The training of all employees was previously required to be completed within six months of hire or promotion, and employees must have received continued sexual harassment training every two years.
However, with the passing of SB 778, the deadline for the initial training for those employees has been pushed back to Jan. 1, 2021.
AB 5—Employee Misclassification
AB5 codifies & expands Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903.
In Dynamex, the Supreme Court confirmed that workers are presumed employees based on the “ABC” test. The test established the three prongs an employer must prove to show the worker is an independent contractor. Specifically, that the worker: (A) is free from control and direction of hiring entity; (B) performs work outside of usual course of hiring entity’s business; and (C) is customarily engaged in independently established trade, occupation or business.
AB 5 applies to all claims under the Labor Code rather than only claims related to wage orders and for claims of unemployment insurance.
Currently, “gig economy” based companies (such as Uber and Lyft) are pushing aggressively to fund a ballot measure to shield them from AB 5, including a carve-out exception. Current exceptions include bona fide business-to-business contracting construction contractors using subcontractors, referral agencies and service providers, motor clubs and individuals providing services to third parties.
AB 9—Extension of Employees’ Statute of Limitation to File FEHA Charges
AB 9 amends Government Code Sections 12960 and 12965 and will extend the time an employee has to file a charge of discrimination with the DFEH to three years.
This new law is set to become a game changer as it increases the current statute of limitation by an additional two years. As we witnessed through the #MeToo Movement, many victims of discrimination keep quiet, for fear of retaliation by their employers. Although this law increases the time to assert claims, a lawsuit cannot be filed without obtaining the right to do so from DFEH. Meaning, rather than filing a lawsuit for discrimination and/or harassment can occur up to four years after the misconduct of an employer.
AB 51—Prohibition of Arbitration Agreements … for some!
This law will prohibit employers from requiring that employees, prospective employees or applicants waive their right to bring forth their FEHA claims in court rather than submit them to arbitration. Further, it provides that an employer may not threaten, retaliate or discriminate against an employee if they refuse to consent to the waiver of any right, forum or procedure for a violation of FEHA or other specific statutes governing employment.
SB 188 (Mitchell)—Crown Act
SB188 amends Government Code Section 12926 and Education Code Section 212.1 and takes effect Jan. 1, 2020. FEHA states it is unlawful to engage in discriminatory practices based on protected characteristics (including race and ethnicity). This law would amend the definition of “race” to include traits historically associated with race, including but not limited to hair texture, protective hairstyles (including “braids, locks and twists”). SB 188 prohibits employers from discriminating employees based on hairstyle.
SB 3—Minimum Wage Increase
SB 3, also known as “Pathway to 15,” was enacted in 2016-2019 setting forth a schedule to increase minimum wage through 2023. The current schedule of minimum wage increase is as follows: $12/hour within 25 or fewer employees and $13/hour for 26+ employees by Jan. 1, 2020. $13/hour within 25 or fewer employees and $14/hour for 26+ employees by Jan. 1, 2021. $14/hour within 25 or fewer employees and $15/ hour for 26+ employees by Jan. 1, 2022. $15/hour within 25 or fewer employees by Jan. 1, 2023.
This is by no means an exhaustive list of new laws. Other laws coming into effect include AB 673 (Civil Penalties for Unpaid Wages), AB 749 (Voiding No-Rehire Provisions), SB 83 (extending duration for family leave to eight weeks), and SB 142 (Expansion of Lactation Accommodations). Read future columns for more information about the new laws. Stephen Danz Navid Kanani