The California legislature and court system was again very busy in 2018. Below is a roundup of issues to watch for as the New Year comes closer. This is by no means a full list of everything that has changed in the last year. If you have questions about updating your internal policies or documents, you should seek advice from your attorney.
Note that the following only applies to employers and businesses doing business in California.
Remember that the California minimum wage goes up to $11.00 per hour for businesses with 25 employees or less, and $12.00 per hour for employers with 26 or more employees. Keep in mind that minimum wage is also a local issue. Counties and municipal governments over the last several years have enacted their own minimum wage statutes and regulations. Always make sure to check the local laws as well as the state laws.
The California Supreme Court handed down a decision earlier this year that provided a new framework for determining who is an independent contractor. Essentially, the employer should look at a three-prong test:
- Whether the worker can perform the work free from the control of the employer;
- Whether the worker is performing work that is outside the employer’s usual business; and
- Whether the worker has their own independent business that performs the same type of work as provided to the employer.
There is a lot more nuance, so don’t read the three-prong test above and assume that you’re fine. If you have questions about whether a particular worker might need to be reclassified as an employee under the new rubric, call an attorney.
This being the year of the woman, California passed a bunch of bills attempting to make the business environment more conducive to women who work in California. Following are some of the more important to watch for:
SB 1300 – This is a large bill that does several different things, including making employers liable under FEHA for any unlawful harassment by nonemployees; prohibiting employers from requiring FEHA waivers or nondisclosure agreements as a condition of hiring, raises, or bonuses; prohibiting successful defendants from collecting attorney’s fees, unless in a frivolous case; and allows employers to offer bystander training for their employees.
SB 820 – As discussed in a previous post about hiring alleged sexual harassers, after January 1, 2019, settlement agreements may not prevent an alleged victim of harassment, discrimination, retaliation, and a few other types of claims from disclosing the facts that led to the settlement agreement. Do note that this law only applies to cases where an actual filing has been made, and may not apply to pre-litigation settlements.
SB 3109 -Prevents provisions that waive someone’s right to testify against someone accused of a crime, or of sexual harassment.
SB 224 – Adds to the list of professional relationships that can give rise to a claim for sexual harassment, and allows DFEH to investigate.
SB 1343 -Adds another sexual harassment training requirement for all employers with 5 or more employees. The trainings must start by January 1, 2020.
AB 1967 – Employers must provide lactation locations that are not bathrooms, unless provided a very narrow exemption.
SB 826 – Publicly held corporations in California must include at least one woman on the board.
AB 2770 – Passed to prevent defamation claims against alleged victims of sexual harassment, this law allows past employers to disclose that they would NOT re-hire an applicant because of sexual harassment claims.
AB 2282 – Clarifies and updates some previously ill-defined terms in the salary history ban passed last year and the year before.
Other Employment Updates
SB 1252 – Employees have the right to receive a copy of their pay statements, not just to inspect it.
AB 1565 – Provides clarification about what employment liability a direct contractor takes on behalf of a sub, and the process for withholding payments.
SB 1412 – Provides updates to ban the box criminal history requirements. Requires that employers use only a “particular conviction” relevant to the ob to screen job applicants.
As of right now, class action waivers in arbitration agreements are still viable, according to the US Supreme Court. California continues to attempt to find ways around the cases that have found in favor of companies using class action arbitration waivers, but as of yet California has been unsuccessful.
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