Mcle Self-study: New Employment Laws for 2020
| Jurisdiction | California,United States |
| Author | By Michael S. Kalt and David J. Duchrow |
| Publication year | 2020 |
| Citation | Vol. 34 No. 1 |
By Michael S. Kalt and David J. Duchrow
Michael S. Kalt is a partner at Wilson Turner Kosmo LLP in San Diego, and represents employers against discrimination, harassment, retaliation, and wage and hour claims. David J. Duchrow is a mediator and attorney in the Law Office of David J. Duchrow in Santa Monica, and represents employees, including in class action, union, and public sector matters.
A new calendar year generally brings a number of new state laws for California employers to consider, and 2020 will not be an exception. Accordingly, discussed below are the new laws of general application for California employers, followed by those particularly applicable to public sector or unionized employers. Unless otherwise indicated, each takes effect January 1, 2020.
New Labor Code § 432.6 precludes employers from requiring applicants or current employees to agree as a condition of employment, continued employment, or the receipt of any employment-related benefit to waive any right, forum, or procedure related to any violations of the Fair Employment and Housing Act (FEHA) or the Labor Code, including the right to file a claim with a state or law enforcement agency. It also precludes employers from threatening, retaliating, or discriminating against any employee or applicant (including terminating their application for employment) who refuses to consent to the waivers prohibited under this section. It also specifies that any agreement requiring an employee to opt out of a waiver provision or to take any affirmative action to preserve their rights will be considered a condition of employment.
This prohibition applies to any contracts for employment entered into, modified or extended on or after January 1, 2020, but does not apply to post-dispute settlement agreements or negotiated severance agreements.
Anticipating a preemption challenge, it also provides that it is not intended to affect any agreements otherwise enforceable under the Federal Arbitration Act. The law's author states it also does not preclude arbitration agreements for FEHA and Labor Code claims, but simply precludes employers from requiring them as a condition of employment, or retaliating against employees who choose not to agree to arbitration.
New Government Code § 12953 specifies that it shall be an unlawful employment practice, thus implicating the FEHA, for an employer to violate new Labor Code § 432.6. Lastly, prevailing plaintiffs who enforce their rights under this section would be entitled to recover their reasonable attorney fees and injunctive relief (e.g., reinstatement, nullification of the improper contract provisions, etc.).
Extended FEHA Statute of Limitations (AB 9)This law extends from one year to three years the deadline for an employee to file an administrative charge with the Department of Fair Employment and Housing (DFEH) after an unlawful employment practice occurs. It also makes conforming changes to the provision allowing employees an additional period up to 90 days if they first obtain knowledge of the facts of the alleged unlawful practice after the limitations period had expired. This extended limitations period will not revive already lapsed claims, and the law defines "filing a complaint" as filing an intake form with the DFEH, with the operative date of a subsequently-filed verified complaint relating back to the filing of the intake form.
It also amends Government Code § 12965 to clarify that the DFEH's one-year period to investigate an employee's complaint and decide whether to bring a civil action starts from the filing of a verified complaint, rather than simply an intake form.
FEHA Amendments for "Protective Hairstyles" (SB 188)Responding to concerns that many existing dress and grooming codes have a disparate impact on African Americans, this new law amends the definition of "race" under FEHA to include "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles." Protective hairstyles, in turn, are defined as "including, but . . . not limited to, such hairstyles as braids, locks, and twists."
According to the bill's author, this provision invalidates: (1) dress/grooming provisions that explicitly preclude such hairstyles; and (2) facially neutral dress/grooming provisions that employers enforce by precluding such hairstyles.
Delay of and Clarification for New Sexual Harassment Training Deadlines (SB 778)Enacted in 2018, SB 1343 extended so-called AB 1825 harassment training in two material respects: (1) it required employers with five or more employees (rather than 50 employees) to provide this training; and (2) it required employers to train both supervisors and non-supervisory employees. However, as the contemplated January 1, 2020 compliance date approached, several ambiguities arose, including whether employees trained in 2018 needed to be retrained in 2019, and when training must be provided to non-supervisory employees.
SB 778 modifies or clarifies California's new harassment training requirements in three respects. First, it extends the deadline for most employers to comply with the new harassment training requirements from January 1, 2020 to January 1, 2021.
Second, the new January 1, 2021 deadline removes the prior concern that supervisors trained in 2018 had to be retrained in 2019 to meet the 2020 deadline. In fact, SB 778 specifically provides that employers who provided legally-sufficient training in 2019—whether to comply with the previously announced January 1, 2020 deadline or because they simply still wish to do so earlier—will not be required to provide any further refresher training or education until two years thereafter. Further, it specifies that moving forward, employers must provide this sexual harassment training and education to each California employee once every two years.
Third, SB 778 specifies that non-supervisory employees must be trained within six months of hire, thus harmonizing it with a similar rule requiring supervisor training.
This law was immediately effective on August 1, 2019 due to its urgency clause.
Extended Training Deadlines for Temporary/Seasonal Employees and Modified Training Requirements for Construction Employees (SB 530)SB 1343 had also enacted training deadlines unique to temporary/seasonal employees, requiring beginning January 1, 2020, that temporary, seasonal or other employees hired to work less than six months be trained within the earlier of 30 days or 100 hours worked after hire. SB 530 extends this deadline to "beginning January 1, 2021."
It also identifies a procedure whereby employers to a multi-employer collective bargaining agreement in the construction industry may satisfy the harassment training requirements via the training an employee has received through another employer to the multi-employer agreement.
Harassment Training for Janitorial Service Workers (AB 547)This law enacts specific harassment training rules related to the janitorial service industry, including requiring peers to provide direct training on harassment prevention for janitors. It also requires employers (as defined), upon request, to provide a copy of all training materials used during the training and require employers to use a qualified organization from the list maintained by the Department of Industrial Relations.
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Employers will need to maintain records for three years identifying the names and addresses of all employees engaged in rendering janitorial services for the employer.
Codification of Dynamex's "ABC" Test for Independent Contractors (AB 5)In 2018, the California Supreme Court issued its landmark decision in Dynamex Operations West, Inc. v. Superior Court, 4 Cal. 5th 903 (2018), articulating a new legal test (the so-called "ABC test") for determining whether someone is an independent contractor or an employee. Broadly speaking, AB 5 states the Legislature's intent to codify the Dynamex decision, thus protecting it from legislative or judicial rollback, while also enacting several additional significant changes.
First, new Labor Code § 2750.3 makes clear that Dynamex's ABC test for independent contractors applies to all provisions of the Labor Code, the Industrial Welfare Commission's Wage Orders or the Unemployment Insurance Code, unless those provisions discussing an "employee" specifically contain an alternative definition. Thus, an individual providing labor or services shall be considered an employee absent all of the following "ABC" factors being met: (A) the person is free from control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; (B) the person performs work that is outside the usual course of the hiring entity's business; and (C) the person is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.
Due to the significant opposition to Dynamex's holding, AB 5 also contains many significant potential exceptions from the ABC test. First, subsection (b) enumerates various occupations that remain governed by the so-called Borello standard rather...
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