California Employment and Labor Law Updates – 2018

On September 30, 2018, Gov. Brown signed Assembly Bill 2799. The new law requires employers with more than one employee submitting initial applications or renewing applications to sell marijuana to include a statement that they do or will have within one year of the application one supervisor and one employee who have completed a Cal-OSHA 30-hour generla industry outreach course.

On September 30, 2018, Gov. Brown signed Senate Bill 1412. Except in specific situations defined by law, employers are not allowed to use in hiring or employment decisions or seek to have applicants or employees disclose information concerning participating 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 to include when (1) the employer by law is required 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 that 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.

On September 30, 2018, Gov. Brown signed Senate Bill 1343. The new law requires employers with five (5) or more employees to provide sexual harassment training to their employees by January 1, 2020, and then every two years after that. They must provide supervisors with two (2) hours of training and nonsupervisory with one (1) 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.

On September 30, 2018, Gov. Brown signed Senate Bill 1300. The new law makes the following changes to the Fair Employment and Housing Act:

• Employers are now clearly liable for any unlawful harassment by non-employees. Previously, liability for non-employees only applied to sexual harassment. Non-employees include applicants, unpaid interns or volunteers or persons providing services pursuant to a contract in the workplace.
• Except for a few exceptions, employers may not require or induce employees to release a claim or right under FEHA.
• Except for a few exceptions, employers may not require employees to sign nondisparagement agreements that prevent the employee from disclosing information about unlawful acts in the workplace including sexual harassment.
• Employers may provide employees bystander intervention training.
• Authorizes courts to award prevailing parties in civil actions based on 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 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.

On September 30, 2018, Gov. Brown signed Assembly Bill 1976. The new law makes changes to employers’ obligations to nursing mothers. California law requires employers to provide employees who are nursing mothers reasonable break time through the workday to express breast milk. Prior to the change, employers were required to provide these employees with the use of a room or other location other than a toilet stall to take their break. The new law changes the location requirement so that employers must provide employees who are nursing with a location that meets minimum requirements such as that the location is used only for lactation purposes while an employee expresses milk. The new law also creates specific requirements for agricultural employers. Employers who can demonstrate to the Department of Industrial Relations that the new requirements would cause a hardship may be allowed to comply with the prior, less strict requirements.

On September 30, 2018, Gov. Brown signed Assembly Bill 2012. The new law makes changes to the paid parental leave requirements for school districts and community college districts that use certain differential pay systems. Under the prior law, some employees who were on parental leave and who had exhausted their paid sick leave were entitled to receive, for the remainder of the parental leave period, the difference between their salary and the cost of a substitute or temporary replacement. The new law standardized all paid parental leave requirements so that employees, after they had exhausted their paid sick leave, would receive 50% of their salaries for the remainder of the parental leave period.

On September 27, 2018, Gov. Brown signed Senate Bill 1123. The new law extends the family temporary disability insurance program (paid family leave) to cover time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the individual’s spouse, domestic partner, child, or parent in the armed forces of the United States.

On September 22, 2018, Gov. Brown signed Assembly Bill 2358. The new law expressly prohibits building and construction trades apprenticeship programs from discriminating against applicants or participants based on race, sex, religious creed, or national origin. It also requires apprenticeship programs to 1) designate one or more individuals to oversee equal opportunity compliance, 2) to maintain records demonstrating compliance, and 3) include specific equal opportunity pledges in their apprenticeship standards and other publications. All existing apprenticeship programs must comply with all the obligations of the new law within 180 days after it becomes effective. New apprenticeship programs must comply with the obligations upon registration or 180 days after the law becomes effective, whichever is later.

On September 19, 2018, Gov. Brown signed Assembly Bill 1565. The new law makes changes to California Labor Code 218.7 which makes direct contractors liable for subcontractors unpaid wage liabilities. The changes are intended to eliminate confusion caused by the original language of the statute and to ensure the statutes provisions are not construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions including interest owed.

On September 19, 2018, Gov. Brown signed Assembly Bill 1654. The new law creates an exception to the state’s Labor Code Private Attorney General Act (CA Labor Code 2698 – 2699.6) for construction workers who are subject to collective bargaining agreements in effect any time before January 1, 2025, that contain, among others provisions, a grievance and binding arbitration procedure to redress violations. The new law authorizes the exception until the collective bargaining agreement expires or until January 1, 2028, whichever is earlier, and would repeal the bill’s provisions on January 1, 2028.

On September 19, 2018, Gov. Brown signed Assembly Bill 2334. The new law makes the following changes to the state’s Workers’ Compensation and Occupational Safety and Health laws:

• It removes restrictions on the use by the Office of Self-Insurance Plans of the Department of Industrial Relations of individually identifiable information as necessary to carry out its duties.
• It authorizes the director of Industrial Relations to publish information regarding the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of public self-insured employers’ workers’ compensation programs.
• It clarifies the definition of an “occurrence” under the state’s Health and Safety Code for purposes of it six (6) month statute of limitation to continue to publish information regarding the costs of administration, workers’ compensation benefit expenditures, and solvency and performance of public self-insured employers’ workers’ compensation programs.
• It requires the Division of Occupational Safety and Health to monitor the rulemaking and implementation of the United States Department of Labor’s Occupational Safety and Health Administration’s Improve Tracking of Workplace Injuries and Illnesses rule with respect to the electronic submission of workplace injury and illness data. It also requires the Division of Occupational Safety and Health to convene an advisory committee within 120 days when the Occupational Safety and Health Administration eliminates or substantially diminishes federal submission requirements to evaluate how to implement changes necessary to protect the goals of the Improve Tracking of Workplace Injuries and Illnesses rule.

On September 17, 2018, Gov. Brown signed Senate Bill 1252. The new law clarifies that employees have the right to “inspect or receive a copy of” their payroll records. Previously, the law stated that employees have a right to “inspect or copy” their payroll records.

On September 14, 2018, Gov. Brown signed Senate Bill 1428. The new law prohibits individuals who are authorized to issue work permits to deny a work permit for a minor seeking to participate in a government-administered employment and training program that will occur during regular summer recess or vacation based on the minor’s grades, grade point average or school attendance.

On September 5, 2018, Gov. Brown signed Assembly Bill 2388. Current law requires the Labor Commissioner to give written consent for minors under 16 years of age to take part in certain types of employment in the entertainment industry. There is an exception from this consent requirement for the appearance of minors in radio or television broadcasting exhibitions if the minors do not receive compensation directly or indirectly, the engagement of the minors is limited to a single appearance lasting not more than one hour, and an admission fee is not charged for the radio broadcasting or television exhibition. The new law expands this exception to minors under the age of 16 who are involved in digital exhibitions.

On July 9, 2018, Gov. Brown signed Assembly Bill 2587. Under the state’s paid family leave law, employers are allowed to require employees to take up to two (2) weeks of earned but unused vacation leave before and as a condition of employees receiving paid family leave benefits. Prior to the new law, up to one (1) week of this vacation leave was to be applied to the statutory seven (7) day waiting period that was eliminated by subsequent legislation. This new law changes the statutory language to remove application of the vacation leave rule to the now non-existent waiting period.

On April 3, 2018, the San Francisco Board of Supervisors approved amendments to its Fair Chance Ordinance, also know as it ban the box ordinance. Amongst other changes, the ordinance now applies to employers with 5 or more employees instead of 20 or more as before. See the Board of Supervisor’s Legislative Digest for a comparison between the ordinance before the changes and after.