California Employment Alert: New Laws for 2020

STOP HARASSMENT AND REPORTING EXTENSION ACT (AB 9) — This law extends the deadline for claims under California’s Fair Employment and Housing Act (“FEHA”) Under current law, an aggrieved party must file their claim with California’s Department of Fair Employment and Housing (“DFEH”) within one year. Under the new law, with certain exceptions, the claim must be filed with the DFEH within three years. This applies to employee claims of unlawful harassment, discrimination, and retaliation.

JANITORIAL WORKERS: SEXUAL VIOLENCE AND HARASSMENT PREVENTION TRAINING (AB 547) — This law directs for the Department of Industrial Relations to create a list of training organizations that janitorial employers must use for in person sexual assault and harassment training for their employees.

PROHIBITION ON MANDATORY ARBITRATION AGREEMENTS (AB 51) - Under AB 51, Employers can no longer require employees (before or after hiring) to sign mandatory arbitration agreements. Such mandatory provisions will be void and violations will be a criminal misdemeanor as well as an unlawful employment practice under FEHA. Going forward, employers need to ensure that such provisions are carefully drafted not to run afoul of AB51, including considering having such agreements governed by the Federal Arbitration Act (“FAA”) instead of California law. We are anticipating this one will be the subject of numerous court challenges.

SETTLEMENT AGREEMENTS CANNOT INCLUDE "NO REHIRE" CLAUSES (AB 749) - As part of severance and settlement agreements, many employers include a clause stating that the former employee will not re-apply with the employer and, if they do, the employer has no obligation to rehire them. This provision makes such clauses unlawful. However, there are several significant exceptions including if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault. The bill further provides that an employer is not required to continue to employ or rehire a person if there is a legitimate nondiscriminatory or non-retaliatory reason for terminating or refusing to rehire the person.

EXPANSION OF LACTATION ACCOMMODATIONS (SB 142) – SB 142 amends the Labor Code to require an employer to provide a lactation room or location that includes prescribed features and would require an employer, among other things, to provide access to a sink and refrigerator in close proximity to the employee’s workspace, as specified. It further prohibits an employer from discharging, discriminating, or retaliating against, an employee for exercising their lactation accommodation rights and authorizes filing a complaint with the Labor Commissioner. Small employers (under 50) can apply for an undue hardship exemption. Employers must to develop and implement a policy regarding lactation accommodation and make it available to employees.