Yesterday, September 30, 2018 was the last day for Governor Brown to sign or veto legislation passed by the California legislature this year.  Here is a list of the employment bills that were signed and will impact California employers in 2019 (the bills will become effective January 1, 2019, unless the bill specifies otherwise):

AB 3109 by Assemblymember Mark Stone (D-Scotts Valley) – Contracts: waiver of right of petition or free speech.  This bill makes unenforceable any provision in a contract or settlement agreement entered into on or after January 1, 2019, that waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or alleged sexual harassment on the part of the other party when 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 224 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Personal rights: civil liability and enforcement.  This bill adds “investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment” under Civil Code section 51.9 of who may be personally liable for sexual harassment.

SB 820 by Senator Connie Leyva (D-Chino) – Settlement agreements: confidentiality.  Prohibits provision in settlement agreements that prevents the disclosure of factual information relating to certain claims of sexual assault, harassment, or discrimination.

SB 826 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Corporations: boards of directors. Requires public companies who have principle executive offices in California to have a set number of women on the board of directors.  The Governor’s signing message can be found here.

SB 1252 by Senator Richard Pan (D-Sacramento) – Payroll records.  Existing law grants current and former employees of employers who are required to keep this information the right to inspect or copy records pertaining to their employment, upon reasonable request. Existing law requires an employer to respond to these requests within a specified time.  This bill provides that employees have the right to receive a copy of the employment records described above and apply the associated time requirements and penalty provisions in this context.

SB 1300 by Senator Hannah-Beth Jackson (D-Santa Barbara) – Unlawful employment practices: discrimination and harassment.  Prohibits an employer, in exchange for a raise or bonus, or as a condition of employment of continued employment, from requiring the execution of a release of a claim or right under 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.  The bill also provides that a prevailing defendant is prohibited from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.

SB 1343 by Senator Holly Mitchell (D-Los Angeles) – Employers: sexual harassment training: requirements.  This bill requires employers with 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisors and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and one every 2 years thereafter.

SB 1412 by Senator Steven Bradford (D-Gardena) – Applicants for employment: criminal history.  The bill permits employers to conduct background checks for employees under certain narrow exceptions.


Governor Brown vetoed the following employment bills, which will not become effective:

AB 1867 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: sexual harassment: records. This bill would have required employers with 50 or more employees to retain records of sexual harassment complaints for at least five years.  The Governor’s veto message can be found here.

AB 1870 – by Assemblymember Eloise Gómez Reyes (D-Grand Terrace) – Employment discrimination: limitation of actions. This bill would have extended the statute of limitations for employment discrimination claims under California’s Fair Employment and Housing Act from one year to three years.  The Governor’s veto message can be found here.

AB 2079 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 2732 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training. The Governor’s veto message can be found here.

AB 3080 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment discrimination: enforcement. The Governor’s veto message can be found here.  I previously wrote about this bill, and the potential effect it would have on employers in California here.

AB 3081 by Assemblymember Lorena Gonzalez Fletcher (D-San Diego) – Employment: sexual harassment. The bill would have created a rebuttable presumption of unlawful retaliation that any adverse employment action within 30 days for anyone that was a victim of sexual harassment.  The bill would have also created joint liability for employers who use contractor labor for any harassment supplied by that labor contractor.  The Governor’s veto message can be found here.

I’ll definitely be writing more about the new laws that will be taking effect.  Please subscribe to the blog (enter email in top right hand column) to receive email notifications when the blog is updated.

The EEOC recently disclosed its fiscal year 2015 performance report.  The report is a good reminder to employers of the issues that they may likely face EEOC scrutiny.  Here are five key statistics employers should pay attention to:

1.     EEOC obtained more than $525 million in discrimination suits. 

Of this amount, the parties settled disputes for $356.6 million, and obtained $65.3 million through litigation.

2.     “Systemic” discrimination investigations and litigation.

The EEOC resolved 268 “systemic investigations” of discrimination claims prior to litigation, resulting in more than $33.5 million in settlements.  Systemic discrimination is defined by the EEOC as discrimination that “involves a pattern or practice, policy, or class case where the alleged discrimination has a broad impact on an industry, profession, company or geographic area.”  Some examples of “systemic” discrimination provided by the EEOC are discriminatory barriers in recruitment and hiring, discriminatory restricted access to management trainee programs and to high level jobs, and exclusion of qualified women from traditionally male dominated fields of work.  A list of recent cases provided on the EEOC’s website illustrates some examples: Outback Steakhouse settles $19 million suit for sex bias claims by women in a “glass ceiling” suit; Albertson’s settles $8.9 million suit alleging job bias based on race, color, and national origin.

The agency did not disclose how much it obtained in litigation, but it disclosed that it resolved 26 systemic cases.  Six of those included at least 50 plaintiffs, and 13 that included at least 20 plaintiffs.

3.      EEOC’s training programs. 

The agency claims to have reached 336,855 people through providing 3,700 educational, training and outreach evetns.  The agency’s Training Institute trained over 12,000 people at 140 events that “focused on the agency’s Strategic Enforcement Plan (SEP) priorities, including small businesses, vulnerable workers, underserved geographic areas and communities….”

4.     Number of charges filed with EEOC remained relatively unchanged from 2014. 

The EEOC received 89,385 in FY 2015.  This is slightly up from the 88,778 charges received by the agency in FY 2014.  This is down from the number of charges filed in 2013 (93,727 charges).

In 2015, the agency resolved 44% of its conciliations, which are mediations conducted by the EEOC to resolve employment disputes.

5.     EEOC litigation efforts.

The agency filed 142 lawsuits alleging discrimination for FY 2015.  Of the lawsuits, 100 were individual lawsuits and 42 were cases “involving multiple victims or discriminatory policies (versus discriminatory treatment), of which 16 were systemic suits.”  During 2015, the agency resolved 155 lawsuits alleging discrimination, and has 218 active cases.  Of these active cases, 48 (22%) alleged systemic discrimination and 40 (18%) were “multiple-victim cases.”

 

California employers must remember that the EEOC is a federal agency responsible for enforcing Federal discrimination laws.  California employers also need to comply with California discrimination laws, which are enforced through California’s Department of Fair Employment and Housing (DFEH).  Wage complaints are handled through the federal Department of Labor or California’s Labor Commissioner.

The laws passed in 2014 added some new posting requirements and resulted in the need to
revise some of the notices California employers are required to provide to employees. This Friday’s Five Best Practices article sets out five items California employers should review before the start of 2015:

1. Review newly published frequently asked questions about California’s new paid sick leave law (AB 1522).
The Division of Labor Standards Enforcement (DLSE) published a much awaited frequently asked questions on its website explaining how it interprets the new paid sick leave law taking effect in 2015 (click here to view the FAQ’s). Employers should review the questions and answers to have a full understanding their expectations under the new law. As a reminder, this law applies to every employer in California, even if the employer only has one employee.

2. Post the new paid sick leave poster.
As previous written about, the DLSE published the required poster employers must post in a conspicuous place for employees to see. This should be posted by January 1, 2015. Here is a link to download a PDF version of the poster: http://elr.io/pdfsickleaveposter

3. Start using updated Notice to Employee by at least January 1, 2015.
Also written about previously, employers must start using the new Notice to Employee on January 1, 2015. See my previous post for a discussion about how the notice has been revised. Here is a link to download a PDF version of the revised Notice to Employee: http://elr.io/noticetoemployee12-2014

4. Obtain and provide updated sexual harassment pamphlet to new hires.
The DFEH will be releasing revised pamphlets (Sexual Harassment: The facts about sexual harassment DFEH-185) employers are required to provide to new hires. Ensure you company obtains the revised pamphlets and provides the updated pamphlets to new hires.

5. Obtain and provide updated Discrimination and Harassment poster.
Like the sexual harassment pamphlet, the DFEH will be revising the poster entitled “California Law Prohibits Workplace Discrimination and Harassment” (DFEH -162). Employers are required to post this poster in the workplace. This revised noticed should be published by the DFEH within the next week or two, but as of December 5, 2014 the DFEH’s website does not contain the new poster. The poster will reflect the changes in California law that expanded protection against harassment to unpaid interns and volunteers. Click here for a list of the DFEH pamphlets and posters that are available for download. Presumably, once the revised materials are created by the DFEH they will be posted at the DFEH’s website as well.

Next week, I’ll discuss some other areas that employers should review as part of a yearly audit of their employment and wage and hour issues.

President Obama’s announcement of his controversial plan to provide amnesty for illegal immigrants to remain in the country who meet certain requirements raises a few employment and immigration issues for employers. Putting the politics aside, it is a good time for employers to review their obligations under the law to confirm a worker’s eligibility to work, especially given the new laws taking effect in California in 2015. Below are five areas involving federal and state immigration laws and verification requirements California employers need to be aware of going into 2015.

1. The President’s proposal does not change employers’ current obligation to verify employees’ eligibility to work in the United States.

The President’s proposal will take time to implement, and given the change of power in the Senate in the last election, there is a lot of uncertainty about the effect of the President’s proposal. Even with the political uncertainty, the President’s proposal recognizes the need to create a “provisional legal status” for illegal immigrants that may be provided citizenship. The White House’s website states the following:

Undocumented immigrants must come forward and register, submit biometric data, pass criminal background and national security checks, and pay fees and penalties before they will be eligible for a provisional legal status. Agricultural workers and those who entered the United States as children would be eligible for the same program. Individuals must wait until the existing legal immigration backlogs are cleared before getting in line to apply for lawful permanent residency (i.e. a “green card”), and ultimately United States citizenship. Consistent with current law, people with provisional legal status will not be eligible for welfare or other federal benefits, including subsidies or tax credits under the new health care law.

The details of this system still need to be set out and a process put into place. So employers need to continue to follow the current requirements to verify employment eligibility, and it is not likely that any of the requirements under Federal law will change anytime soon.

2. Expect increased enforcement by federal agencies of immigration and labor laws.

President Obama’s proposal also calls for increasing the monitoring and audit of employers to ensure they are complying with the immigration laws. The President’s proposal seeks a new “labor law enforcement fund” to “ensure that industries that employ significant numbers of immigrant workers comply with labor laws.” The White House’s website touts the fact that ICE has increased his audits of employers since January 2009, and has fined more companies than the Bush administration.

Employers need to review their policies to ensure that they comply with federal and California labor laws. In my practice, I have seen an uptick in DOL audits of employers over the last two years. It is important for California employers to understand the different employment law requirements between federal law and California law, and to ensure that they are complying with the law that applies to their particular workforce.

3. In California, employers need to recognize the new California drivers’ licenses being issued on January 1, 2015 to undocumented workers.

Illegal immigrants will be able to obtain a California driver’s license beginning January 1, 2015. AB 60 was passed in 2013 allowing people who cannot prove their eligibility to be in the United States legally the ability to obtain a driver’s license. The California DMV will begin issuing these drivers’ licenses in the beginning of next year. The licenses will be marked with the phrase “federal limits apply” on the front of the license in the same size and color of text as the other text. This statement will be located in the top right corner above the Class designation on the licenses. On the back of the license, it will have the statement that the license is “not valid for official federal purposes.”

The California drivers’ licenses issued under AB 60 are not valid documentation to prove eligibility to work in the United States. It is important for employers to train their personnel who are responsible for verifying documents when completing the Form I-9 to ensure that the documents presented by the worker are valid for I-9 purposes. In addition, it would be a good time for employers to audit their Form I-9 process and document retention policies.

4. It is illegal for employers to discriminate against workers who present licenses obtained through AB60.

A new law passed in 2014, AB 1660, makes it a violation of California’s Fair Employment and Housing Act (“FEHA”) to discriminate against a worker who presents a driver’s license which was issued to them under AB60 and the individual does not have the legal right to work in the United States. Read this last sentence again and it is not hard to see the rock (federal I-9 obligations) and the hard place (California law) that employers find themselves between. AB 1660 amends FEHA to specify that discrimination on the basis of national origin includes, but is not limited to, discrimination on the basis of possessing a driver’s license issued under this new law. California employers need to be clear on what their obligations are under federal law and carefully navigate these obligations to ensure they do not run afoul of AB 1660 and Vehicle Code section 12801.9.

5. California employers need to treat driver’s license information as confidential employee information.

AB 1660, which amends Vehicle Code section 12801.9, provides that employees’ drivers’ license information obtained by the employer is confidential:

Driver’s license information obtained by an employer shall be treated as private and confidential, is exempt from disclosure under the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and shall not be disclosed to any unauthorized person or used for any purpose other than to establish identity and authorization to drive.

Therefore, employers need to review their record keeping procedures to ensure that any driver’s license information for their employees is keep in a secure manner and limit other employees’ access to the data.

1. Automatic liability for a company when harassing or discriminatory conduct is taken by supervisors.
A company is automatically liable for any harassment or discriminatory actions taken by its supervisors. Under California’s Fair Employment and Housing Act (FEHA), a supervisor is defined as anyone who has the authority to hire, transfer, suspend, layoff, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to recommend these actions to the employer.

2. When is a company liable for harassment by non-supervisory employees?
Employers are only liable for harassment in the workplace that it knew about or should have known about, and failed to take corrective action to stop the harassment.

3. Is there personal liability for harassment or discrimination?
There is a difference regarding personal liability for alleged harassment and discrimination.  Employees can be held personally liable for harassment, but there is no personal liability for discrimination.

Any employee working for a company covered by FEHA can be held personally liable for harassment that employee engages in. However, a supervisor who did not engage in harassment and who is aware of harassment taking place but fails stop the harassment, cannot be held personally liable for aiding and abetting the harassment.  However, obviously, this will create liability for the company. 

On the other hand, supervisors are not held personally liable for discrimination or retaliation. This is because the basic job duties of a supervisor could be viewed as discriminatory, acts such as hiring, firing, and setting schedules. Therefore, the courts did not want to impose personal liability on to supervisors for their day-to-day duties. However, it is important to remember that even though the supervisor does not have personal liability for discrimination or retaliation, the employer will always be liable for any proven misconduct.

4. The avoidable consequences doctrine could reduce liability in certain cases.
Under the avoidable consequences doctrine, an employee’s damages can be limited if the employer can show that: (1) it took reasonable step to prevent harassment, (2) the employee unreasonably failed to utilize the procedures put in place by the employer to prevent harassment, and (3) had the employee used the procedure to prevent the harassment some of the damages would have been prevented. Under this defense the employer’s complaint system put in place will be challenged and viewed under high scrutiny.  Therefore it is important for employers to show that employee’s who complained in the past had their complaints properly addressed and there was never any retaliation for making the complaint.  

5. Revise sexual harassment training in 2015 to include discussion about abusive conduct.
Even though workplace bullying is not illegal under California law, a new law going into effect in 2015 amends the law requiring employers with 50 or more employees to provide sexual harassment prevention training to include a discussion about workplace bullying and abusive conduct.

Q:  Is it "Illegal" to work with a relative as your co-worker or supervisor, or is it left up to the facility/business to make rules regarding how/who they hire as their employees?

There is nothing in California law that prohibits family members from working together. However, many companies institute non-fraternization or anti-nepotism policies as a safety measure to prevent work-place disputes that boil over from non-work relationships as well as to avoid claims of sexual harassment or discrimination. In fact, it is advisable for companies to have such policies.

One of the most problematic areas that arises is when two employees are dating, but the relationship goes sour. As you can imagine, this creates an awkward working environment that will take away from the employees’ productivity, in addition to exposing the company to a sexual harassment claim if one of the employees continues to pursue the other while at work. Also, if the relationship was between a supervisor and a subordinate, the company faces liability if the supervisor favors the person he/she is having the relationship with over other employees when making decisions about bonuses or promotions.

To avoid this problem, many companies have policies in place the either prohibit relationships at work, or some companies require the employees to disclose the relationship. Then the company can work with the employees to see if moving one or both employees to different divisions and/or locations within the company could prevent any potential problems should the relationship not workout in the future. Employers have to walk a fine-line however, because employees have an expectation of privacy about their personal lives while away from work, so employers cannot have too evasive policies. It is best to have a knowledge CA employment lawyer review the policy in advance.
 

The WSJ recently reported, there is a trend that discrimination based lawsuits fair a lot worse than most other cases filed in federal court. A study found that discrimination cases lose at a higher rate and are more likely to be dismissed at early stages in the lawsuit. The article reports:

The odds against winning discrimination cases have some employee lawyers reluctant even to try. "We will no longer take individual employment-discrimination cases, because there’s such a high likelihood of losing," New York plaintiffs’ attorney Joe Whatley Jr. says. Job-discrimination case filings declined by 40% from 199Source: WSJ.com9 to 2007, federal court records show.

The article also points out that discrimination cases are dismissed more often at the summary judgment stage:

Even the federal courts have detected the pattern of more dismissals in discrimination cases, though they surmise different reasons for it than do plaintiffs’ lawyers. A report last year by the Federal Judicial Center, the research arm of the federal courts, found that judges nationwide terminated 12.5% of employment-discrimination cases through summary judgments, before the suits reached trial. In 90% of those cases, it was the employers who requested the summary judgment. In contrast, the study found, 3% of contract cases and 1.7% of personal-injury and property-damage suits were dismissed via summary judgments.

There can be a number of reasons for this as the article points out: employers settle bad cases before litigation and employers have implementing better policies and maintain better documentation to defend themselves against discrimination claims.

It is interesting to note that during this same time period that discrimination class are declining, there is a noticeable increased amount of wage and hour litigation. In fact, wage and hour lawsuits more than doubled in federal courts from 2001 to 2006.  No matter what the cause, discrimination cases are harder to bring, and harder to win. What replaced discrimination claims during this same time period? Wage and hour claims for violations of overtime pay, non-payment of wages, and not providing meal and rest breaks.