United States: 2020 California Employment Laws

California employers take heed! Numerous new California employment laws are coming your way. The following six employment-related bills were signed into law and go into effect on January 1, 2020:

AB 749: A common provision in settlement agreements is that a former employee is not permitted to seek employment with his/her previous employer. These provisions, also known as "no-rehire" clauses, give an employer the assurance that they will not have to deal with the plaintiff again as a prospective employee. If the plaintiff does apply for a position with the employer, the employer can reject the application outright, no questions asked. This practice will soon be unlawful. Any such "no hire" clauses that are part of settlements entered into after January 1, 2020 are void as a matter of law and against public policy. The exception is where the employer has made a good-faith determination that the settling employee engaged in sexual harassment or sexual assault. AB 749, however, will not require an employer to rehire an individual "if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person."

SB 778: Since 2005, employers with 50 or more employees have been required to provide at least two hours of sexual harassment training to supervisory employees every two years. SB 1343 which was passed in 2018, expanded the number of employers that are required to provide harassment training by reducing the threshold from employers with 50 or more employees to employers with five or more employees. SB 1343 additionally required one hour of sexual harassment training and to non-supervisory employees. All sexual harassment training for both supervisors and non-supervisors was to be completed by January 1, 2020. SB 778 now extends that deadline to January 1, 2021.

AB 51: Employers are prohibited from requiring new applicants or current employees to sign mandatory arbitration agreements that cover any discrimination claims under the Fair Employment and Housing Act (“FEHA”) and any claims under the Labor Code. Additionally, an employer may not retaliate against an employee who chooses not to enter into such an agreement. An employer will only be able to enter into an arbitration agreement with an employee if that employee voluntarily and affirmatively chooses to enter into such an agreement. While AB 51 specifically states that it does intend to invalidate arbitration agreements that are enforceable under the Federal Arbitration Act ("FAA"), it is expected that AB 51 will be quickly challenged.

AB 9: An employee who claims discrimination, harassment, and/or retaliation under the FEHA must first file a verified complaint with the Department of Fair Employment and Housing before filing a civil claim in court. Starting in 2020, an expanded statute of limitations for such claims will take effect and employers may find themselves having to defend against discrimination/harassment/retaliation lawsuits four years from the alleged occurrence.

SB 142: Labor Code §1030 requires all employers to provide a reasonable amount break time to allow nursing mothers to express breast milk. While employers are currently required to provide employees a lactation room, other than a bathroom, that is close to the employee's work area, SB 142 adds that the employee be provided access to a sink with running water and a refrigerator in close proximity to the employee's workplace and mandates that the lactation room must (1) be safe, clean, and free of hazardous materials; (2) contain a surface to place a breast pump and personal items; (3) contain a place to sit; and (4) have access to electricity or alternate devices. If a multipurpose room is used for lactation and other uses, lactation must take precedence over other uses. A failure to provide lactation accommodation is deemed to be a violation of Labor Code §226.7, entitling the employee an additional hour of pay at the employer's regular rate of pay. SB 142 also contains an anti-retaliation provision and requires employers to develop and implement a lactation accommodation policy.

AB 5 codifies the California Supreme Court's Dynamex West, Inc. v Superior Court decision that, subject to heavily-lobbied exemptions, makes it extremely difficult to classify most California workers as independent contractors. More details about AB 5's "ABC test" can be found in our previous alert, here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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