California Employment Law Update – October 2018

Criminal History and Job Applicants

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 1412) specifying that employers, public agencies, private individuals, and corporations (employer) may:

• Ask employees or applicants about an arrest when they are out on bail or on their own recognizance pending trial.
• When complying with state, federal, or local law:
  • Conduct criminal background checks for employment purposes.
  • Restrict employment based on criminal history.
  • Seek or receive an applicant’s criminal history report when obtained pursuant to procedures otherwise provided under applicable law.

Additionally, employers may ask an applicant about, or seek from any source, information regarding a particular conviction if any of the following apply (per 12 U.S.C. § 1829, other federal law, federal regulation, or state law):

• Regardless of whether a particular conviction was expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation:
  • The employer is legally required to obtain information about it;
  • An individual with that particular conviction is legally prohibited from holding the position sought; or
  • The employer is legally prohibited from hiring an individual who has that particular conviction.
• The applicant would be required to possess or use a firearm in the course of employment.

The law also newly defines the following:

• A particular conviction is a conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation, or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses.
• A conviction is a plea, verdict, finding of guilt, regardless of whether a sentence is imposed by the court. However, any adjudication by a juvenile court or any other court order or action taken with respect to a person who is under the process and jurisdiction of the juvenile court continues to be protected.

The law is effective January 1, 2019.
Read CA S.B. 1412

FEHA, Harassment, Training, and Nondisparagement Agreements

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 1300) amending the California Fair Employment and Housing Act (FEHA) as follows:

• By removing the word “sexual” from the protections against harassment and thereby making employers responsible for the acts of nonemployees with respect to all harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take immediate and appropriate corrective action.
• An employee of an entity subject to the FEHA who is alleged to have engaged in any prohibited harassment may be held personally liable for any act in violation of the law.
• Employers are authorized to provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to act when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.
• In exchange for a raise or bonus, or as a condition of employment of continued employment, employers are prohibited from requiring the execution of a release of a claim or right under the FEHA or from requiring an employee to sign a nondisparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. An agreement or document in violation of either of those prohibitions is contrary to public policy and unenforceable.

The law is effective January 1, 2019.
Read CA S.B. 1300

Home Care Aide Registry and Disclosure of Personal Information

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 2455) requiring, for any new registration or renewal of registration of a home care aide occurring on and after July 1, 2019, the State Department of Social Services to provide, upon request, a labor organization an electronic copy of a registered home care aide’s name, telephone number, and cellular telephone number. The department must also establish a simple opt-out procedure that would allow a home care aide to prohibit it from sharing his or her information and would require the department, at the time of registration or renewal of registration, to inform a home care aide how to use the simple opt-out procedure.
The law also prohibits labor organizations from using or disclosing the shared information, with exception.
The law is effective January 1, 2019.
Read CA A.B. 2455

Lactation Accommodation in the Workplace

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 1976) specifying that an employer who makes a temporary lactation location available to an employee is in compliance with the state’s workplace lactation accommodation requirements if all of the following conditions are met:

• The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.
• The temporary lactation location is private and free from intrusion while an employee expresses milk.
• The temporary lactation location is used only for lactation purposes while an employee expresses milk.
• The temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.

An agricultural employer, is in compliance with the law if it provides an employee wanting to express milk with a private, enclosed, and shaded space, including, but not limited to, an air-conditioned cab of a truck or tractor.
Additionally, if an employer can demonstrate to the California Department of Labor that the requirement to provide the employee with the use of a room or other location, other than a bathroom would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business, then an employer must make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.
The law is effective January 1, 2019.
Read CA A.B. 1976

Mandatory Placement of Women on Board of Directors

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 826) requiring all of the following:

• By no later than the close of the 2019 calendar year, a publicly held domestic or foreign corporations (corporation) whose principal executive offices (per its SEC 10-K form) are located in California must have at least one female on its board of directors.
• By no later than the close of the 2021 calendar year, corporations must comply with the following, as applicable:
  • If its number of directors is six or more, then the corporation must have a minimum of three female directors.
  • If its number of directors is five, then the corporation must have a minimum of two female directors.
  • If its number of directors is four or fewer, then the corporation must have a minimum of one female director.

According to the law, a female is an individual who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth. The California Secretary of State will impose the following fines for violations:

• $100,000 for failure to timely file board member information with the Secretary of State.
• $100,000 for a first violation.
• $300,000 for a second or subsequent violation.
• Each director seat required to be held by a female, which is not held by a female during at least a portion of a calendar year, is a violation. However, a female director having held a seat for at least a portion of the year is not a violation.

The law is effective January 1, 2019.
Read CA S.B. 826

Settlement Agreements and Confidentiality

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 820) prohibiting a provision in a settlement agreement that prevents the disclosure of factual information relating to any of the following claims that are filed in a civil or administrative action:

• Sexual assault.
• Sexual harassment.
• Workplace harassment or discrimination based on sex.
• Retaliation for reporting harassment or discrimination based on sex.

However, a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court, may be included within a settlement agreement at the claimant’s request. This does not apply if a government agency or public official is a party to the settlement agreement.
Under the law, any provision within a settlement agreement that prevents the disclosure of factual information related to the claim entered into on or after January 1, 2019, is void as a matter of law and against public policy.
The law is effective January 1, 2019.
Read CA S.B. 820

Sexual Harassment and Waiver of Right of Petition or Free Speech in Contracts

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 3109) making a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment.
The law is effective January 1, 2019.
Read CA A.B. 3109

Sexual Harassment Training Modifications

On September 30, 2018, California Governor Jerry Brown signed legislation (S.B. 1343) modifying the California Fair Employment and Housing Act (FEHA) sexual harassment training requirements as follows:

• By January 1, 2020, an employer with five or more employees (rather than 50 or more) must provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all nonsupervisory employees in California within six months of hire. The law provides the following additional provisions:
  • Employers may provide this training in conjunction with other training provided to employees.
  • The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met.
  • An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.

After January 1, 2020, each covered employer must provide sexual harassment training and education to each employee in California once every two years.

• Beginning January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer must provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. For temporary employees who are employed by a temporary services employer, to perform services for clients, the training must be provided by the temporary services employer, not the client.
• Beginning January 1, 2020, sexual harassment prevention training for migrant and seasonal agricultural workers must be consistent with training for nonsupervisory employees.

Employers may develop their own training module or use the California Department of Fair Employment and Housing’s training which it will develop and post on its website. The department will also make existing informational posters, fact sheets, as well as the online training courses regarding sexual harassment prevention available online and in alternate languages.
The law is effective January 1, 2019.
Read CA S.B. 1343

Talent Agencies and Sexual Harassment

On September 30, 2018, California Governor Jerry Brown signed legislation (A.B. 2338) requiring the following:

• A talent agency must provide educational materials on sexual harassment prevention, retaliation, and reporting resources and nutrition and eating disorders to its artists. These educational materials must be in a language the artist understands, and would require the licensee, as part of the application for license renewal, to confirm with the California Labor Commissioner that it has and will continue to provide the relevant educational materials.
• Prior to issuing a permit to employ a minor in the entertainment industry, an age-eligible minor and the minor’s parent or legal guardian must receive and complete training in sexual harassment prevention, retaliation, and reporting resources. A talent agency must also request and retain a copy of the minor’s entertainment work permit prior to representing or sending a minor artist on an audition, meeting, or interview for engagement of the minor’s services.

The law also makes it a violation of existing laws for a talent agency to fail to comply with the education and permit retention requirements and authorizes the commissioner to assess civil penalties of $100 for each violation.
The law is effective January 1, 2019.
Read CA A.B. 2338

Information Privacy and Connected Devices

On September 28, 2018, California Governor Jerry Brown signed legislation (S.B. 327) requiring manufacturers of a connected device to equip it with a reasonable security feature that is appropriate to the nature and function of the device, appropriate to the information it may collect, contain, or transmit, and designed to protect the device and any information it contains from unauthorized access, destruction, use, modification, or disclosure.
Under the law, a connected device is any device, or other physical object that is capable of connecting to the Internet, directly or indirectly, and that is assigned an Internet Protocol address or Bluetooth address. Additionally, a manufacturer is the person who manufactures, or contracts with another person to manufacture on their behalf, connected devices that are sold or offered for sale in California. A contract with another person to manufacture on their does not include a contract only to purchase a connected device, or only to purchase and brand a connected device.
The law is effective January 1, 2020.
Read CA S.B 327

Personal Information

On September 28, 2018, California Governor Jerry Brown signed legislation (S.B. 244) implementing additional privacy protections for an individual’s personal information. The law requires that information or documents obtained by a California city, county, or other local agency for local identification card issuance may only be used to administer the ID card program or policy. It may not be used to for discriminatory purposes, be otherwise disclosed except in response to a subpoena for individual records, is exempted from disclosure and is not public record under the California Public Records Act.
Moreover, the law provides the following protections:

• Documents provided by applicants to prove identity or residency may not be disclosed except in response to a subpoena for individual records in a criminal proceeding or pursuant to a court order, or in response to a law enforcement request to address an urgent health or safety need.
• The use of a driver’s license issued under these provisions is prohibited to be used evidence of an individual’s citizenship or immigration status for any purpose.
• Where a drivers’ license states, “This card is not acceptable for official federal purposes. This license is issued only as a license to drive a motor vehicle. It does not establish eligibility for employment, voter registration, or public benefits,” all of the following are violations:
  • To discriminate based on this type of license.
  • Under the Unruh Civil Rights Act, for a business establishment to discriminate against a person because he or she holds or presents this type of license.
  • Under the California Fair Employment and Housing Act, for an employer or other covered person or entity (employer) to discriminate against a person because he or she holds or presents this type of license, or for an employer to require a person to present a driver’s license, unless possessing a driver’s license is required by law or by the employer and is permitted by law. However, this protection does not limit or expand an employer’s authority to require a person to possess a driver’s license.

The law does not alter an employer’s federal rights or obligations regarding obtaining documentation evidencing identity and authorization for employment. Any action taken by an employer that are required by the federal Immigration and Nationality Act are not violations.
The law is effective January 1, 2019.
Read CA S.B. 244

CCPA Amended

On September 23, 2018, California Governor Jerry Brown signed legislation (S.B. 1121) amending the state’s Consumer Privacy Act of 2018 (CCPA) as follows:

• It retained the CCPA’s operative date of January 1, 2020 but made the act immediately effective. According to the bill, the need for the immediate effective date is to prevent confusion that could be created if local laws regarding the collection and sale of personal information were enacted prior to January 1, 2020 and were in conflict with the CCPA.
• The Attorney General is required to draft the CCPA’s implementing regulations. However, S.B. 1121 provides these regulations are not required to be in place until July 2, 2020. Moreover, under the bill, the AG may not bring an action to enforce the law until six months after the final regulations are published or July 1, 2020, whichever is earlier.
• Adding more exceptions to the CCPA application, for example, some clinical trials and Confidentiality of Medical Information Act covered healthcare providers (but not under all circumstances).
• Clarifying that the only private right of action permitted under the act is the private right of action for violations of unauthorized access and exfiltration, theft, or disclosure of a consumer’s nonencrypted or nonredacted personal information and deleting the requirement that a consumer bringing a private right of action notify the Attorney General.
• Limiting the civil penalty levied by the Attorney General to not more than $2,500 per violation and not more than $7,500 per each intentional violation, and provides an injunction as another available remedy.

The law is effective September 23, 2018.
Read CA S.B. 1121

Petroleum Facilities, Rest Breaks, and Safety Positions

On September 20, 2018, California Governor Jerry Brown signed legislation (A.B. 2605) exempting employees who hold safety-sensitive positions (those where duties reasonably include responding to emergencies in the facility and carrying communication devices) at a petroleum facility from the rest and recovery period requirements. The exemption only applies to employees who are subject to California Industrial Welfare Commission Order No. 1 and are covered by a collective-bargaining agreement. However, for any rest or recovery period during which an employee was interrupted, or forced to miss, the employer is required to pay one additional hour of compensation to the employee at his or her regular rate of pay.
The law became effective September 20, 2018, remains in effect until January 1, 2021, and then is repealed.
Read CA A.B. 2605

Occupational Injury and Illness and Recordkeeping Violations

On September 19, 2018, California Governor Jerry Brown signed legislation (A.B. 2334) regarding workplace injury and illnesses and reporting standards. Under the act, Cal/OSHA law at Cal. Labor Code § 6317 newly defines what a violation occurrence is, as related to the statute of limitations in a Cal/OSHA recordkeeping violation. Specifically, under the law an occurrence continues until it is corrected, or until the California Division of Occupational Safety and Health (division) discovers the violation, or until the duty to comply with recordkeeping requirement no longer exists. Thus, the Cal/OSHA enforcement branch may issue a citation for a recordkeeping violation which occurred any time during the Cal/OSHA five-year recordkeeping period because this new law defines a violation occurrence as continuing until it is corrected. Additionally, the law revised the Cal. Labor Code § 6317 language to state that a citation or notice will not be issued by the division more than six months after the occurrence of the violation. Prior to the bill, the entirety of § 6317 merely stated that, “no citation or notice will be issued by the division for a given violation or violations after six months have elapsed since occurrence of the violation.”
The law is effective January 1, 2019.
Read CA A.B. 2334
Originally posted on thinkhr.com