With the new year comes new laws that affect California employers. The following is the "A to Z" of changes in law that may affect your business in 2019.
Agreements Not to Sue for Workplace Harassment
Employers are now prohibited from requiring an employee, in exchange for a raise or a bonus, or as a condition of employment or continued employment to (1) agree not to sue or bring a claim against the employer under the FEHA or (2) sign a non-disparagement agreement that prevents the employee from disclosing information about unlawful acts in the workplace. These prohibitions do not apply to a negotiated settlement agreement.
Ban the Box
After generally prohibiting employers from considering judicially sealed or expunged convictions when conducting a criminal background check for a job application, the Legislature has amended the law to narrow an employer's ability to consider sealed or expunged convictions to only those circumstances where a particular conviction would legally prohibit someone from holding that job.
Under a new law, confidentiality clauses that prohibit the disclosure of factual information other than the claimant's identity are prohibited in any settlement agreement in a case where sexual harassment, assault or discrimination has been alleged.
Defamation Protection After Harassment Complaints
The Legislature codified the law to protect victims of sexual harassment and employers from defamation claims by clarifying that (1) employees who report harassment won't be liable for injury to the alleged harasser's reputation; (2) communications between the employer and victims/witnesses will be protected; (3) an employer is permitted to reveal in a job reference whether the individual is not eligible for rehire because the employer determined that the individual engaged in sexual harassment; and (4) employees who report harassment, based on credible evidence and without malice, won't be liable for injury to the alleged harasser's reputation.
"Employee" or "Independent Contractor"?
In determining whether a worker is an employee or an independent contractor for purposes of the worker's eligibility for overtime wages, minimum wages, meal breaks and rest breaks, the worker is presumed to be an employee unless the employer can show (A) that the worker is free from the 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) that the worker performs work that is outside the usual course of the hiring entity's business; and (C) that the worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed.
Fair Labor Standards Act
The California Labor Code differs significantly from the Fair Labor Standards Act (FLSA) and other states' laws. Some of California's labor laws are stricter than federal requirements. Always make sure you are in compliance with the applicable laws.
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Human Trafficking Training
Employees of intercity passenger rails, light rails and bus stations as well as certain hotel and motel employees must receive training on recognizing and reporting suspected human trafficking.
Independent Contractor Test
Two competing bills have been submitted in the Legislature, one to codify the new test for determining whether a worker is an independent contractor and one overturning the new test. We will update you if either bill is passed.
Joint Employer Liability – Port Trucking Companies
Employers who hire trucking companies with certain unpaid employment-related judgments affecting businesses such as retailers, agriculture and auto dealers will be jointly liable for those judgments.
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An employer must provide a location other than a toilet stall for an employee to express breast milk. The location must be private and in close proximity to the employee's work area.
Starting Jan. 1, 2019, California's minimum wage goes up to $11.00 per hour for businesses with 25 or fewer employees and $12.00 per hour for business with more than 25 employees. Several cities and counties are also increasing their minimum wage in 2019, including Berkeley, Cupertino, El Cerrito, Los Angeles County, Malibu, Mountain View, Palo Alto, Richmond, San Diego, San Francisco, San Jose, San Leandro, San Mateo, Santa Clara and Sunnyvale. Please contact us if you need more information.
An employer may be responsible for harassing acts of nonemployees if the employer knew or should have known of the conduct and failed to take immediate corrective action.
One Incident Can Create a Hostile Work Environment
The Legislature declared that a single act of harassment can create a hostile work environment, thereby making early dismissal of a hostile work environment lawsuit less likely.
Paid Family Leave – Active Duty Status
Beginning Jan. 1, 2021, employees will be able to collect Paid Family Leave benefits if they take time off for activities related to the covered active duty status of their spouse, registered domestic partner, child or parent who is a member of the armed forces. These activities are referred to as "qualifying exigencies" and include official military ceremonies and spending time with the covered service member during rest and recuperation leave.
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Starting Jan. 1, 2019, Redwood City's minimum wage will be $13.50 per hour.
Salary History Law Updated
After banning inquiries to job applicants about salary history, the Legislature amended the law to clarify that (1) employers can ask about an applicant's salary expectations for the position being applied for; (2) external applicants, but not internal applicants, are entitled to a pay scale for the position applied for; (3) the pay scale only needs to include salary or hourly wage ranges; and (4) compensation decisions based on a current employee's existing salary may be permissible if justified by factors such as a seniority or merit system.
By Jan. 1, 2020, employers with five or more employees must provide sexual harassment training to all employees. The law previously only required employers with 50 or more employees to provide training to supervisors.
Unenforceable Contract Provisions
A provision in a contract or settlement agreement will be unenforceable if it prohibits a party to the contract from testifying about criminal conduct or sexual harassment in an administrative, legislative or judicial proceeding.
Verification of Compliance
Need verification of compliance with all these laws? We can do an audit for you!
When Do These Laws Take Effect?
While most take effect in 2019, some will not until 2020 or 2021.
Be sure to review your overtime calculations to ensure you are paying employees correctly.
Yes, You're in California
There are a lot of employment laws.
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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.