CALIFORNIA EMPLOYMENT LAW UPDATE 2019
Even though we are well into 2019, it is important for employers to be aware of and understand the importance and ramifications of the changes to California’s employment law landscape, which can affect their day to day operations. Some highlighted changes in California law are discussed below. The experienced employment law attorneys at Gehres Law Group are ready to assist employers in navigating the sometimes confusing and ever-changing employment laws in this State.
Wage Law ChangesFirst up is a reminder that California’s minimum wage went up to $12.00 per hour for employers with 26 or more employees, and $11.00 per hour for employers with 25 or fewer employees. Minimum wage increases will continue at the rate of $1.00 per hour until January 1, 2022 for larger employers, and January 1, 2023 for smaller employers. See California Labor Code Section 1182.12. Higher rates may be in effect for employers located in certain cities which have enacted their own minimum wage rates.
Exemptions for agricultural workers relating to overtime and other working conditions have been repealed or changed. Beginning January 1, 2019, agricultural employees must receive overtime at one and a half times the employee’s regular rate of pay for all hours worked in excess of nine and a half hours in one workday or 55 hours in one work week. The overtime threshold is reduced by one-half hour per day or five hours per week every year until January 1, 2022 when the threshold matches the eight hours per day/40 hours per week requirements applicable to most other workers. The double-time threshold will be set at 12 hours per day beginning January 1, 2022. The timeline for compliance is delayed by three years for small employers–those with 25 or fewer employees.
The labor code was also amended to clarify that an employer may ask applicants their salary expectations for the position applied for. The law also authorizes employers to make compensation decisions based on employees’ current salaries, only if any wage differential is justified by one or more specified factors, including a seniority system or a merit system. See California Labor Code Sections 432.2 and 1197.5.
Under the State’s paid family leave law, employers are now allowed to require employees to take up to two weeks of earned, but unused, vacation leave before, and as a condition of, employees receiving paid family leave benefits.
Although not set into effect yet, beginning January 1, 2021 California’s existing paid family leave program will expand to employees who request time off related to their own active duty military service, or that of a close family member. Current law only provides partial wage replacement to employees who take off due to the serious illness of themselves or a family member, or to bond with a new child.
Finally, employers are now required to provide copies of an employee’s payroll records within 21 days of the employee’s request. This new law involves a change in the language to ensure that employers understand they are required to make and provide the copies itself, as opposed to making the records available for the employee to copy.
Sexual HarassmentA new law in California requires employers with five or more employees to provide sexual harassment training to their employees by January 1, 2020, and then every two years after that. Specifically, employers must provide supervisors with two hours of training and nonsupervisory with one hour of training. Previously, only employers with 50 or more employees were required to provide the training. The new law also requires the Department of Fair Employment and Housing to develop compliant sexual harassment training courses.
An amendment to the FEHA made clear that a single incident of harassing conduct is sufficient to create a triable issue of hostile work environment, if the conduct interfered with an employee’s work performance or, otherwise created an intimidating, hostile, or offensive work environment. The law explicitly overrides the prior standard for hostile work environment set by the 9th Circuit in Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2000), which held that a single incident of sexual harassment did not support a cause of action.
Also, as a part of the amendments to the FEHA, California Government Code §§12900 – 12996, employers are now clearly liable for any unlawful harassment by non-employees, not just sexual harassment as was the previous case. Non-employees include applicants, unpaid interns or volunteers or persons providing services pursuant to a contract in the workplace. With few exceptions, employers are now prohibited from requiring or inducing employees to release a claim or right under FEHA or require employees to sign non-disparagement agreements which prevent the employee from disclosing information about unlawful acts in the workplace, including sexual harassment.
Finally, FEHA now authorizes courts to award prevailing parties in civil actions, under the FEHA, reasonable attorney’s fees and costs including expert witness fees. It restricts courts’ ability to award reasonable attorney’s fees and costs to prevailing defendants to only those times when the court determines the action was frivolous, unreasonable, or groundless when brought, or that the plaintiff continued to litigate after it clearly became so.
Other Discrimination and Accommodation IssuesLactation accommodation rules were also modified for 2019. Existing law requires employer to provide a location, other than a toilet stall, to be used for lactation (or at least make reasonable efforts to do so). The location should be permanent, unless the employer is unable to provide a permanent location and the temporary location is private and not used for other purposes while being used for lactation. There is some flexibility for agricultural employers, allowing them to comply by providing an air-conditioned cab of a truck or tractor. See California Labor Code Section 1031.
The statutes governing employee criminal background checks and hiring/employment decisions under The Fair Chance Act were also amended. Except in specific situations, employers have previously not been permitted to use in hiring or employment decisions, information disclosed an employee concerning the employee’s participation in a pretrial or posttrial diversion program or concerning a conviction that has been judicially dismissed or ordered sealed. The new law makes changes to the specific situations when the general prohibition does not apply. These exceptions to the general prohibition include situations where (1) the employer is required by law (State or Federal) to obtain information regarding the particular conviction of the applicant, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, (2) the applicant would be required to possess or use a firearm in the course of his or her employment, (3) an individual with a particular conviction is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation, or (4) the employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.