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2020 New Employment Laws – Part 3 of 3

February 14, 2020

Summary of New Laws for Employers- Part 3 of 3

by JoLynn Scharrer

This is the last in a three-part series providing a summary of some of the new laws enacted in California which may have an impact on employers. For many of these new laws in the series, employers should conduct a review of employee handbooks and the inclusion of policies supporting enforcement to demonstrate compliance.

SB 142 Lactation Accommodation

California employers are required to provide rest periods to employees during the workday. Employees are entitled to an hour’s pay for each rest period not provided. Employers are also required to provide such a rest break to allow employees to express milk for infant children. The new law requires an employer to provide a location with access to a sink and refrigerator close to an employee’s workspace for lactation. Employers are prohibited from discharging, discriminating, or retaliating against an employee for exercising these rights. There is an exemption employers may seek when they employ fewer than 50 employees and can demonstrate that the requirements pose an undue hardship or expense. Employers are now required to develop and implement a policy regarding lactation accommodation and make it available for employees.

SB 188 Hairstyle Discrimination

Under the California Fair Employment and Housing Act, it is unlawful to engage in discriminatory hiring, promotion, and termination based on certain protected characteristics, including race. Existing law defines terms such as race, religious beliefs, and sex, among others, for purposes of the act. This bill provides that the definition of race for these purposes also includes traits historically associated with race, including, but not limited to, hair texture and protective hairstyles, and defines protective hairstyles for purposes of these provisions.

SB 707 Arbitration Agreements

If an employer requires the execution of an arbitration agreement, the employer (as the party drafting the agreement) is required to pay certain fees and costs before an arbitration may proceed. This bill states that the employer is in breach of the agreement if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date. Such a failure causes the employer to be in default and the employer waives its right to compel arbitration. The bill authorizes the employee to either withdraw the claim from arbitration and proceed in court or compel arbitration in which the drafting party is required to pay reasonable attorney’s fees and costs related to the arbitration. If the employee proceeds with an action in court, the bill provides that the statute of limitations for all claims brought or that relate back to any claim brought in arbitration are tolled. The bill requires the court to impose a monetary sanction on the employer under those circumstances. If the employee compels arbitration, the bill requires the arbitrator to impose appropriate sanctions on the employer, including monetary sanctions, issue sanctions, evidence sanctions, or terminating sanctions. This bill also requires a private arbitration company to collect and report demographic data relative to ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators.

AB 51 Employee Waiver- Arbitration Agreements

As of January 1, 2020, this new section of the Labor Code prohibits an employer from requiring a job applicant or employee to waive any right, forum or procedure in connection with a violation of the California Fair Employment and Housing Act or other statutes governing employment as a condition of employment or related benefits. This would include the requirement that an employee sign an arbitration agreement as a condition of employment. The bill prohibits employers from threatening, terminating, retaliating or discriminating against any applicant or employee for refusing to waive these rights. This code section authorizes injunctive relief and attorneys’ fees. Nothing in this section invalidates a pre-existing arbitration agreement that is otherwise enforceable under the Federal Arbitration Act or a pre-existing settlement or severance agreement.

SB 688 Forfeiture of Undertakings for Failure to Pay Minimum Wage

Existing law makes an employer who fails to pay or causes a failure to pay an employee a wage less than the minimum wage subject to citation by the Labor Commissioner, a civil penalty, restitution of wages, liquidated damages, and certain other applicable penalties. This bill adds that if the Labor Commissioner determines that an employer has paid a wage less than the wage set by contract in excess of minimum wage, the Labor Commissioner may issue a citation to the employer to recover restitution of the amounts owed. In addition, existing law requires an employer seeking to file a writ of mandate with the court to contest an assessment of a civil penalty by the Labor Commissioner to post an undertaking. Existing law provides that some or all of the undertaking may be forfeited to the affected employee if the employer does not pay the court’s judgment regarding wages or damages owed within 10 days of the entry of the judgment. This bill instead requires that the undertaking be forfeited to the Labor Commissioner.

SB 530 Construction Industry Training for Discrimination and Harassment

This new law allows an employer who employs workers pursuant to a multiemployer collective bargaining agreement (CBA) in the construction industry to satisfy harassment prevention training if an employee has received such training with one of the following in the last 2 years: an employer by a signatory to the CBA with the same trade, a registered building and construction trades apprenticeship program approved by the Division of Apprenticeship Standards (DAS), or a labor management training trust or cooperation committee.

AB 673 Late Wage Payment Penalties

As of January 1, 2020, California employees will be able to seek penalties from their employers for late payment of wages. Employers are already subject to penalties for paying wages late when an employee resigns or is terminated. But now an employee can recover penalties for wages that are paid late during employment. The bill amends Labor Code § 210 to create a new private right of action to seek penalties for the late payment of wages.  Previously, only the Labor Commissioner was permitted to seek penalties under § 210. For any initial violation, one hundred dollars ($100) for each failure to pay each employee. For each subsequent violation, or any willful or intentional violation, two hundred dollars ($200) for each failure to pay each employee, plus 25 percent of the amount unlawfully withheld. The only good news for employers in AB 673 is that employees have to choose whether to recover under § 210 or under the Private Attorney General Act (PAGA). The Labor Commissioner can seek § 210 penalties through administrative proceedings but no longer has the right to recover them by filing suit in court.

SB 229 Anti- Retaliation Enforcement The new law expands the Labor Commissioner’s means for enforcing an employer’s violation of the Labor Code’s anti-retaliation provisions.  If the Labor Commissioner investigates a retaliation complaint and determines that a violation took place under the Labor Code, the Labor Commissioner may issue a citation to the employer responsible for the violation.  SB 229 establishes procedural requirements and deadlines for the Labor Commissioner to file citations with the court for judicial enforcement and the collection of remedies.  The bill also provides procedural requirements for any person or employer who wishes to contest such citation.

JoLynn M. Scharrer is a shareholder at Hunt Ortmann and leads the firm’s Employment Law Group and Insurance Group. Our team is ready to guide you with handling your employment matters.  Please contact us at: employment@huntortmann.com.

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