Dear Clients and Friends,
Happy New Year! I hope you all had a memorable holiday season, and are returning to work refreshed and ready to embark on a wonderful new year. I have held off on inundating you with the legal updates that were passed this Fall until the holidays were behind us, but it is now time for my annual update on the relevant employment laws of which you should be aware. Please note that this is not an exhaustive list, but simply the legislative and case law highlights that will impact the majority of my clients.
As you’ll see, the California Legislature responded to the #MeToo movement in a big way, passing several laws that impact how sexual harassment is addressed in the workplace. Beginning with new training initiatives and extending through to the factual determination and settlement of such claims, the landscape has shifted and employers must be vigilant in handling these matters in a sensitive, thoughtful, and legally compliant way.
I have dedicated the first part of this update to the #MeToo-related laws. Beyond that, you’ll find some updates regarding minimum wages, salary basis thresholds, arbitration, lactation accommodation, and national origin discrimination. Some of these laws took effect during 2018, and others just became effective at the first of the year, but all are in effect now:
SEXUAL HARASSMENT TRAINING
It has long been the law in California that employers with 50+ employees provide sexual harassment training to their managers. However, this training will now be required of all employers with five or more employees. The training must be provided by the end of 2019 (and then once every two years thereafter, and within 6 months of any employee assuming a new position) as follows: two hours for all supervisory employees, and one hour for all nonsupervisory employees. If you have questions about how to comply with this new training requirement, or would like me to provide the training for you, please do not hesitate to contact my office to discuss it.
WAIVERS OF CLAIMS BY CURRENT EMPLOYEES
The California Fair Employment and Housing Act (“FEHA”) is the primary law that provides California employees with protection from discrimination, retaliation and harassment in employment. A new law provides that employees cannot be required to sign a release of liability for any violation of FEHA as a condition of continued employment, or in exchange for a bonus or a raise. Violation of this new provision would not only invalidate such a contract, but would also enable an aggrieved employee to sue for damages and other
relief. Notably, this law does not apply to negotiated settlement agreements.
A new law provides that no contract or settlement agreement can prohibit an employee from disclosing factual information relating to any claims filed in civil or administrative complaints that involve sexual assault, sexual harassment, and/or workplace harassment or discrimination based on sex (unless the agreement is a negotiated resolution of an internal complaint or demand letter brought by an employee). To the extent applicable, the amount of any settlement payment can still be subject to confidentiality. Please note that this new law will likely require revision to any standard form NDAs, Confidentiality Agreements, and Release Agreements that many employers use. If you would like your standard forms reviewed to ensure compliance, do not hesitate to contact me.
SEXUAL HARASSMENT CLAIMS; PROOF AND ATTORNEYS’ FEES
The California Legislature has made it easier for employees to prove sexual harassment in the workplace in a variety of ways, and has removed financial deterrents that may have discouraged employees from bringing such claims. For example, under new California law, even a single incident of harassing conduct, or one discriminatory remark, could be enough to create a hostile work environment. In addition, if an employer prevails in an action involving sexual harassment, the employer cannot recover attorneys’ fees and costs unless an action was frivolously brought or maintained (which is a very hard standard to prove).
NON #METOO UPDATES
MINIMUM WAGE UPDATES
Keeping track of all applicable minimum wages can be a full-time job. The California state minimum wage, and the minimum wages of several cities, increased as of January 1st. Many cities increase their minimum wages in July. To the extent that you employ workers in a city or a county that has a higher minimum wage than the State of California, you are bound by whichever minimum wage is higher. Below please find the current minimum wages for the most relevant jurisdictions for my clients (if you are wondering whether there
is a local ordinance that impacts you or your business, please feel free to contact me):
SALARY BASIS THRESHOLD FOR EXEMPT EMPLOYEES
In order for employees to be classified as exempt employees (i.e., not entitled to overtime compensation), they must perform certain kinds of work and earn a salary that is at least two times the state minimum wage for full-time employment. Based on this standard, every time the California minimum wage increases, this so-called “salary basis” threshold increases, as well. With the new minimum wages, in order for employees to even be considered exempt from overtime, they must now be paid at least $45,760 if the employer has up to 25 employees, and $49,920 if the employer has 26+ employees.
Please note that simply earning a salary that meets these threshold numbers is not enough to qualify for exempt status; an employee also has to meet the “duties” tests that all exemptions require. If you have any questions at all as to whether your staff is properly classified as exempt, please make an appointment with my office to discuss this important classification.
Employers have previously been required to provide a private, clean space for new mothers to express breast milk. New legislation clarifies that such a space cannot be in a bathroom.
NATIONAL ORIGIN DISCRIMINATION
We are lucky to have such a diverse workforce in California, and many employees who do some of our most important work do not speak English as a first language. In recognition of this diversity, the Legislature has established that English-only rules in employment are presumptively illegal unless an employer can establish that such a rule is justified by business necessity, is narrowly tailored, and is effectively explained to employees. Even when this exception can be established, such English-only rules are never permissible during any employee break or other non-work time.
In addition, other than requiring completion of the Form I-9, employers may not inquire into an employee’s immigration status unless required to do so by federal law and, further, cannot take action against an employee based on immigration status unless required to do so by federal law. If you have any questions as to what this means for your staff, and how to be in compliance with federal immigration law without violating this state mandate, please do not hesitate to contact me to discuss the matter.
In May of 2018, the United States Supreme Court held that class action waiver provisions in employment arbitration agreements are lawful and enforceable. As such, if you have an arbitration agreement with your employees and would like to add such a waiver to ensure that any class actions are subject to arbitration, that provision can (and should) be added. If you do not have an arbitration agreement, and/or want to discuss whether such an agreement would make sense for your employees, I am always available to discuss the pros and cons and help you make an individualized decision that makes sense for you.
As you can see, the courts and the legislature were busy in the past few months! To help you digest all of this information, and determine what action items you need to take, below is a checklist for you to use to figure out which of these new laws apply to you:
Review and potentially revise non-disclosure language in Settlement/Release Agreement forms, Confidentiality Agreements, Employee Handbooks, and Employment Agreements to carve out factual information relating to claims of sexual assault, sexual harassment, gender discrimination and related claims
Schedule Sexual Harassment Training for 2019 (applicable to employers with 5+ employees)
Ensure compliance with minimum wage and, for non-exempt employees, salary basis thresholds
Review classification of exempt employees and independent contractors to ensure that all workers are properly classified (as a reminder, the California Supreme Court issued a new standard for independent contractors in April 2018)
It is a great privilege of mine to work with all of you, and to help ease the burden that California law places on employers. If I can be of any assistance to you, either now or as the year progresses, please be in touch. I wish you a happy, healthy, and productive 2019.
Warmly, Lisa Pierson Weinberger, Esq.