At the close of the 2019 legislative session, California Governor Gavin Newsom signed into law several important employment bills. Below is a summary of new laws that apply generally to private employers.  All bills are effective January 1, 2020, unless otherwise indicated. Please feel free to contact us with any questions about the new requirements or necessary policy revisions.

Extended Timeframe for Filing California Fair Employment and Housing Complaints: AB 9

AB 9 extends the period for filing California Fair Employment and Housing Act complaints, including claims of discrimination and harassment, from one (1) year from the date upon which the unlawful practice occurred to three (3) years. The law does not revive lapsed claims.

Prohibition on Certain Mandatory Arbitration Agreements: AB 51

AB 51 makes it unlawful to require an applicant or employee to waive, as a condition of employment, continued employment, or receipt of an employment-related benefit, their right to pursue claims under the Fair Employment and Housing Act (FEHA) or the Labor Code by signing mandatory arbitration agreements. AB 51 further makes it unlawful to retaliate or discriminate against anyone who refuses to consent to such waiver.  Any violation of prohibitions relating to such waivers is itself an unlawful employment practice under FEHA. AB 51 applies to contracts entered into, modified, or extended on or after January 1, 2020. AB 51 does not apply to post-dispute settlement agreements or negotiated severance agreements. [Blocked by temporary restraining order as of December 30, 2019, pending a preliminary injunction hearing on January 10, 2020.]

California Consumer Privacy Act of 2018 Employee Exclusion Amendment: AB 25

AB 25 amends the California Consumer Privacy Act (CCPA). The CCPA goes into effect on January 1, 2020, imposing sweeping obligations on covered employers (including businesses with $25M in revenues or 50,000 or more consumers) who collect personal information about a “consumer” (defined broadly as a natural person who is a California resident). Employers are exempt from many of the CCPA’s requirements until January 1, 2021; however, the following provisions of the act apply to covered employers beginning January 1, 2020:

  • Businesses that collect a consumer’s personal information, shall, at or before the point of collection, inform consumers as to the categories of personal information to be collected and the purposes for which the categories of personal information shall be used; and
  • Consumers are authorized to bring a private civil action against any business that violates its duty to implement reasonable security procedures and practices if that failure results in a consumer’s personal information being subject to. Consumers can recover up to $750 per breach or actual damages in a civil action for unauthorized access and exfiltration, theft, or disclosure, as a result of a business’ violation of its duty.

No Double Recovery for Failure to Pay Wages: AB 673

AB 673 limits employees’ ability to recover statutory and PAGA penalties in an action for failure to pay wages. Employees will be able to either recover statutory penalties for failure to pay wages or enforce Private Attorney General Act (PAGA) penalties for failure to pay wages, but not both for the same violation.

 “No Rehire” Provisions Banned in Settlement Agreements: AB 749

AB 749 prohibits employers from including “no rehire” provisions in settlement agreements, except in settlement agreements if the employer has made a good faith determination the person engaged in sexual harassment or sexual assault.  The law clarifies employers are not required to employ or rehire a person if there is a legitimate non-discriminatory or non-retaliatory reason for refusing to rehire the person.

Unpaid Leave for Organ Donation: AB 1223

AB 1223 requires employers with 15 or more employees to grant employees an unpaid leave of absence, for up to 30 business days in a one-year period, for the purpose of organ donation. The unpaid leave is in addition to paid leave for organ donation already required under existing law.

Flexible Spending Accounts Notice to Employees: AB 1554

AB 1554 requires employers to notify an employee who participates in a flexible spending account of any deadline to withdraw funds before the end of the year. Notice must be made by two different forms, one of which may be electronic.

Lactation Accommodation: SB 142

SB 142 amends the existing California lactation accommodation requirements.

Existing law requires employers to make “reasonable efforts” to provide an employee with use of a room, other than a bathroom, for the employee to express milk in private. SB 142 instead requires employers to provide a lactation room or location that meets certain specifications, including having a surface to place a breast pump and personal items, a place to sit, and access to electricity or alternative devices that may be needed to operate an electric or battery-powered breast pump. Employers must also provide access to a sink with running water and a refrigerator in close proximity to the employee’s workspace. Employers with fewer than 50 employees may request a hardship exemption, but such employers must still make reasonable efforts to provide such a space.

SB 142 deems a denial of reasonable break time or adequate space to express milk a failure to provide a rest period under Labor Code 226.7, which provides missed break penalties of one additional hour of pay for each workday the break is missed. The law also contains an anti-retaliation provision.

Employers must develop and implement a lactation accommodation policy that includes specified information.

Hairstyle Discrimination: SB 188

SB 188 bans discrimination based on certain hairstyles. It clarifies that the definition of race under the California Fair Employment and Housing Act includes traits historically associated with race, including, but not limited to, hair texture and protective hairstyles. Protective hairstyles include, without limitation, hairstyles such as braids, locks and twists. The Legislature concluded that “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks…have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees more than any other group.”

Unpaid Contract Wages: SB 688

SB 688 amends Labor Code 1197.1 which currently permits the Labor Commissioner to issue a citation when an employer fails to pay the minimum wage. SB 688 expands the law to permit a citation when an employer has contractually agreed to pay more than the minimum wage but does not pay the agreed upon wage.

Timely Payment of Arbitration Fees: SB 707

SB 707 provides that an employer’s failure to pay arbitration fees within 30 days of the due date would constitute a material breach of the arbitration agreement that would allow the employee to proceed in court.

Please note that this summary is not intended to constitute legal advice. If you have questions regarding compliance with these new California laws or other employment laws, please feel free to contact either Kristin Pedersen or Maki Daijogo at Daijogo & Pedersen by emailing us at [email protected] or [email protected] or by calling us at 415.924.9400.