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California's New 2019 Employment Laws in a Nutshell

By Thomas M Lee

The new calendar year brings in new employment laws that both employees and employers should consider. Notably, the changes are geared towards providing more protections for employees in the workplace and some are in response to recent high profile sexual harassment incidents in the entertainment industry. Please note that the information provided here is for general information purposes only and is not to be construed nor relied upon as legal advice.

1) Expanded Sexual Harassment Training Requirements: Government Code section 12950.1 has been revised to require that employers with five or more employees to provide anti-harassment training to all employees, not just supervisory employees. All applicable supervisory employees will need to complete at least 2 hours of training, and non-supervisory employees must complete 1 hour of training by no later than January 1, 2020. The Department of Fair Employment and Housing is mandated to develop the one and two hour training videos and to post them online at their website. However, as of the date of this blog entry, no videos have been posted yet. Employers are encouraged to check the DFEH website periodically.

2) Bystander Intervention Training: Government Code section 12950.2 has been added to provide information and practical guidance to enable bystanders to recognize potentially problematic behaviors, and provide the motivations. skills, and confidence to intervene as appropriate

3) Release of Claim or a Right Prohibited: Government Code section 12964.5 now prohibits employers from requiring the execution of a "release of a claim or right" under the Fair Employment and Housing Act ("FEHA") in exchange for a raise, bonus, or as a condition of employer or continued employment. Further, employers are now precluded from requiring an employee from signing a non-disparagement agreement other document prohibiting an employee from disclosing information about unlawful acts in the workplace. This does not apply to a negotiated settlement agreement to resolve an already pending claim under the FEHA.

4) Confidentiality Limitations for Sexual Harassment Settlement Agreements: Code of Civil Procedure section 1001 has been added to prohibit settlement agreement provisions which prevent the disclosure of factual information related to claims of sexual assault, sexual harassment, sex discrimination, and retaliation. Any settlement agreement entered into after January 1, 2019 that contains any of the prohibited provisions will be deemed void as against public policy. Further, non-disclosure provisions in settlement agreements that preclude a sexual harassment victim from discussing misconduct at the workplace are now void and unenforceable under Civil Code section 1670.11.

5) Expanded Sexual Harassment Liability in Business, Service, or Professional Relationships: Civil Code section 51.9 has been added to prohibit sexual harassment in various business, service, or professional relationships in response to recent high-profile sexual harassment allegations in the entertainment industry. Further, the Department of Fair Employment and Housing is now authorized to handle and investigate sexual harassment complaints arising from these non-employer relationships.

6) Lactation Area Cannot be a Bathroom: Labor Code section 1031 has been amended to require employers to provide a private room or other area "other than a toilet stall" for purposes of expressing breast milk at work even if it will cause an undue hardship on the employer to do so.

7) State Minimum Wage Increases: As of January 1, 2019, the state minimum wage for employers with 26 or more employees is $12.00 an hour, and $11.00 for employers with 25 or less employees. However, employers must be aware of local county, city and municipality minimum wage requirements which are higher than the state's. For example, employers doing business in the city of Los Angeles must pay a minimum wage of $14.25 per hour if they employ 26 or more employees, and smaller employers with 25 or less employees must pay $13.25 per hour. All employers in the city of Los Angeles will be required to pay a minimum wage of at least $15.00 per hour starting July 1, 2021.

8) Exempt Computer Professionals Must be Paid More in Order to remain Exempt: Labor Code section 515.5 provides that certain software programming employees are exempt from overtime wage requirements if certain duties are met and are paid at least $45.41 per hour or $94,603.25 annually.