Starting in 2019, employers in California will be held liable for recordkeeping violations well beyond the six-month statute of limitations. Assembly Bill 2334 was signed by Governor Brown this month and goes into effect January 1, 2019.
The new law changes the definition of “occurrence” in the California Labor Code for purposes of the statute of limitation for Cal/OSHA violations relating to recordkeeping. The new language in the Labor Code now reads as follows:
A citation or notice shall not be issued by the division more than six months after the occurrence of the violation. For purposes of issuing a citation or notice for a violation of subdivision (b) or (c) of Section 6410, including any implementing related regulations, an “occurrence” continues until it is corrected, or the division discovers the violation, or the duty to comply with the violated requirement ceases to exist. Nothing in this paragraph is intended to alter the meaning of the term “occurrence” for violations of health and safety standards other than the recordkeeping requirements set forth in subdivision (b) or (c) of Section 6410, including any implementing related regulations.
The law now maintains that any recordkeeping violations must continue until:
- They are corrected,
- Cal/OSHA discovers the violations, or
- The duty to maintain the record no longer exists.
In other words, beginning on January 1, 2019, Cal/OSHA has the authority to issue citations for recordkeeping violations that exist during the five-year recordkeeping retention period.
Harassment Complaints are Now Considered “Privileged Communications”
AB 2770, signed into law in July, treats internal sexual harassment determinations and complaints as privileged communications if they are disclosed without malice. Statements that are designated as “privileged” cannot be used to support a defamation claim under California law.
The new law extends the scope of the privilege to now allow a former employer to say they would not rehire an applicant based on the employer’s determination that the former employee had committed sexual harassment. In other words, an employer can now say they would not rehire an employee (if that employee was found by the company to have committed sexual harassment), without fear of a defamation lawsuit from said employee.
In keeping with AB 2770, Governor Brown also signed into law SB 1343, which now requires employers with five or more employees to provide at least two hours of antiharassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees. Previously California law had only mandated employers with 50 or more employees to provide supervisory personnel with antiharassment training. In addition, beginning in 2020, training will also be required for seasonal and temporary employees, as well as seasonal and migrant agricultural workers.
The first round of training must be completed by January 1, 2020 and all training must be repeated every two years.
Publicly Held Corporations Will Now Have to Include Women on Their Boards
California has now become the first state to require its publicly held corporations to include women on their boards after Governor Jerry Brown signed SB 826 into law this week.
The law, which applies to companies “whose principal executive offices” are in California, will now require companies to have a minimum of two or three women on their boards, depending on the size of the boards. Companies that fail to comply can be fined $100,000 for the first violation, and $300,000 for the second.
Gov. Brown has acknowledged that “there have been numerous objections to this bill,” but that, “given all the special privileges that corporations have enjoyed for so long, it’s high time corporate boards include the people who constitute more than half the ‘persons’ in America.”
Arbitration, Confidentiality, and Non-Disparagement Provisions
In response to recent criticism surrounding various types of employment agreement, Governor Brown signed the following three bills into law.
The first, AB 3109, nullifies any term in a contract or settlement agreement that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. This law applies where “the party has been required or requested to attend the proceeding pursuant to a court order, subpoena, or written request from an administrative agency or the legislature.”
SB 820 focuses on confidentiality clauses in settlement agreements. The law prohibits terms in a settlement agreement that prevent the disclosure of factual information relating to claims of sexual assault, sexual harassment, harassment or discrimination based on sex, or retaliation for filing a claim of sexual harassment. Additionally, it precludes courts from restricting the disclosure of such facts, by stipulation or otherwise, in relevant civil proceedings.
The bill does not ban provisions preventing the disclosure of a settlement payment amount. In addition, “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 request of the claimant.”
Finally, SB 1300 curtails an employer’s ability to utilize non-disparagement clauses and certain waivers for claims asserted under the California Fair Employment and Housing Act (FEHA). The bill makes it unlawful “for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment” to “require an employee to sign a release of a claim or right,” including any release covering claims against an employer, the right to file and pursue civil action, or the ability to notify any court, law enforcement, or governmental agency.
The new law also prohibits non-disparagement or other agreements that would “deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment.” These restrictions do not apply to “a negotiated settlement agreement to resolve an underlying claim . . . that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process,” so long as such agreement is voluntary and involves valuable consideration.
The law does encourage (but does not require) employers to provide bystander intervention training.
New School Law
September is National Suicide Prevention Awareness month, and with suicide being the second leading cause of death among 10 to 24 year-olds, many states and schools are working hard to bring awareness and prevention to this issue.
In California, Governor Brown signed into law Assembly Bill 2639 which is aimed at preventing student suicide. Under the new law, schools must review their suicide prevention policies at least every 5 years, and update the policies as needed.
The bill builds on a law passed in 2016 which requires schools serving students in grades 7 to 12 to adopt a suicide prevention policy in consultation with school and community stakeholders, mental health professionals, and suicide prevention experts.
A model policy can be found here. Schools interested in implementing their policies can find a free toolkit here, which includes national and state prevention guidelines, including those issued by the Substance Abuse and Mental Health Services Administration (SAMHSA), the American Foundation for Suicide Prevention (AFSP), the Suicide Prevention Resource Center (SPRC), the University of South Florida (USF), and the states of California and Maine, among others.
Additional Bills Passed:
- AB 1976
- Requires employers to make reasonable efforts to provide a room or location, that is not a bathroom, (the law deleted “toilet stall” and replaced it with the word “bathroom”) for lactation. This bill also authorizes a temporary lactation location if certain conditions are met and provides a narrow undue hardship[ exemption.
- AB 375, SB 1121
- California Consumer Privacy Act (effective January 1, 2020) and amendments
- AB 2587
- Technical amendments to paid family leave (the Family Temporary Disability Insurance Program); namely the removal of the seven-day waiting period reference in Section 33013.1 of the Unemployment Insurance Code, since the waiting period rule had been removed January 1, 2018.
- AB 2844
- Written agreements for commissions payable to insurance broker-agents
- SB 1252
- Clarifies that employees are entitled to receive a copy of their employment records and pay statements, in addition to their right to inspect them.
- SB 1412
- Criminal history regulations: additional circumstances where employers may ask an applicant about, or seek information about, a particular 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 offense”)
- SB 1428
- Minor work permits: this bill prohibits the denial of a work permit on the basis of a pupil’s grades, grade point average, or school attendance if the pupil is applying for the work permit in order to participate in a government-administered employment and training program that will occur during the regular summer recess or vacation of the school that the pupil attends.
- SB 1500
- Antidiscrimination protections for members of federal reserve components of the U.S. Armed Forces and State Military Reserve added. This bill extends the protections against, among other things, discharge from employment to members of the federal reserve components of the Armed Forces of the United States and members of the State Military Reserve. The bill additionally prohibits refusing entrance into specified places to any member of the Armed Forces of the United States because that member wears the uniform of the organization to which he or she belongs.
- SB 3247
- Arbitration: the law now requires a court to order arbitration pursuant to a written agreement between the parties unless there are grounds for rescission (rather than revocation)
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