The following is a description of the major labor and employment bills that made it to the Governor’s Desk – those that were enacted, as well as those that were vetoed. While many more measures were considered during the 2018 Legislative Session, these are the ones that made it to the final point. We highlight the vetoed measures because of the number and significance of those bills in addition to the ones that were enacted and that take effect January 1, 2019.

ASSEMBLY BILLS

New Labor-Related Liability Rule for Direct Contractors – AB 1565

Governor Jerry Brown signed AB 1565^[2] (Thurmond) into law on September 19. As an urgency measure^[3], the bill took effect on September 19, the day it was chaptered by the Secretary of State after the Governor’s signature. The bill^[4] specifies a new labor-related liability rule for direct contractors.

AB 1565 provides that, for any contract entered into on or after January 1, 2019, in order to withhold dispute payments, the direct contractor must specify, in its contract with the subcontractor, the specific documents and information that the direct contractor will require that the subcontractor must provide upon request.^[5]

In addition, under AB 1565, subcontractors may include the same requirements in their contracts with lower tiered subcontractors and may withhold as disputed all sums owed. The bill also declares that it must go into effect immediately due to the need to resolve the confusion created by the existing language at the earliest possible time.^[6]

Under existing state law^[7], for all contracts entered into on or after January 1, 2018, a direct contractor, making or taking a contract in the state for the erection, construction, alteration, or repair of a building, structure, or other work, to assume, and be liable for, specified debt owed to a wage claimant that is incurred by a subcontractor, at any tier, acting under, by, or for the direct contractor for the wage claimant’s performance of labor included in the subject of the original contract. The Labor Commissioner and certain third parties are authorized to bring a civil action to enforce this liability.

AB 1565 repeals the provisions^[8] that state that the obligations and remedies are in addition to existing obligations and remedies provided by law, except that the provisions are not to be construed to impose liability on a direct contractor for anything other than unpaid wages and fringe or other benefit payments or contributions including interest owed.

In addition, AB 1565 specifies that, for contracts entered into on or after January 1, 2019, a direct contractor or a subcontractor is required to include a specified provision in its contract that lists the specific documents or information that the direct contractor or subcontractor will require a lower tiered subcontractor to produce before the direct contractor or subcontractor is allowed to withhold any disputed payments from the lower tiered subcontractor under these provisions.^[9]

Finally, this bill clarifies last year’s AB 1701^[10] (Thurmond), which was signed into law. That bill created specific joint liability provisions of existing law. Prior to the conclusion of the Legislative Session, Assemblyman Thurmond entered the following Letter to the Assembly Journal^[11]:

“Dear Mr. Wilson: I respectfully submit this letter to be printed in the Assembly Journal in order to reflect my intent in relation to Assembly Bill 1701. This measure proposes to enact a new labor Section 218.7. Due to a disagreement about the meaning of subdivision (h), the author and stakeholders have agreed to delete that subdivision from Section 218.7 in follow-up legislation. No inference should be drawn from the inclusion and subsequent removal of that subdivision. Thank you for noting my intent regarding this measure. Sincerely, TONY THURMOND, Assembly Member Fifteenth District”

California Employers Must Provide Additional Lactation Accommodation – AB 1976

Governor Jerry Brown signed AB 1976^[12] (Limon) into law on September 30. This bill^[13] requires an employer to make reasonable efforts to provide an employee wishing to express breast milk in private with an area in close proximity to her workspace that is not a bathroom.^[14]

The Senate amendments to this bill allow agricultural employers^[15] to be in compliance with the requirements if they provide an employee wishing to express breast milk with a private, enclosed and shaded space, removing the requirement that the temporary lactation accommodation space be air-conditioned^[16]; and, the Senate amendments allow employers who show that providing an employee with a lactation space that is not a bathroom would constitute an undue hardship to that business to provide a lactation space that is not a bathroom stall.^[17]

Existing California law requires every employer to provide a reasonable amount of break time to accommodate an employee desiring to express breast milk for the employee’s infant child and requires an employer to make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area for the employee to express milk in private.^[18]

AB 1976 instead requires an employer to make reasonable efforts to provide an employee with use of a room or other location, other than a bathroom, for these purposes. The bill^[19] strikes “toilet stall” and replaces it with “bathroom” so that an employer must make reasonable efforts to provide an employee with the use of a room or other location, other than a bathroom, in close proximity to the employee’s work area for the employee to express milk in private.^[20]

The bill^[21] deems an employer to be in compliance with this provision of law if all four of the following conditions are met:

• The employer is unable to provide a permanent lactation location because of operational, financial, or space limitations.^[22]

• The temporary lactation location is private and free from intrusion while an employee expresses milk.^[23]

• The temporary lactation location is used only for lactation purposes while an employee expresses milk.^[24]

• The temporary lactation location otherwise meets the requirements of state law concerning lactation accommodation.^[25]

The new law^[26] provides the following hardship exemption for employers: “If an employer can demonstrate to the department that the requirement to provide the employee with the use of a room or other location, other than a bathroom would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business, an employer shall make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.”

Finally, a note to employers: Existing law makes a violation of these provisions subject to a civil penalty and makes the Labor Commissioner responsible for enforcement.^[27]

Legislature Grants Small Exemption to Augustus Decision – AB 2605

Governor Jerry brown signed AB 2605^[28] (Gipson) into law on September 20.  Effective immediately, the bill^[29] creates an exemption for safety-sensitive position in petroleum facilities for rest break requirements. Because the bill contains an urgency clause^[30], it took effect the day it was chaptered by the Secretary of State after the Governor’s signature, which was September 20. The bill makes several statements of legislative intent.^[31]

Under existing state law^[32], an employer is prohibited from requiring an employee to work during a mandated meal or rest or recovery period, and requires an employer who fails to provide an employee a mandated meal or rest or recovery period to pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period was not provided. There are certain exemptions from these requirements in current state law.^[33]

AB 2605^[34] exempts specified employees who hold a safety-sensitive position at a petroleum facility from the rest and recovery period requirements.^[35] The new law^[36] provides that, for any rest or recovery period during which the employee was interrupted or forced to miss, the employer would be required to pay to the employee one additional hour of compensation at the employee’s regular rate of pay.^[37]

According to the author, "AB 2605 seeks to promote public and employee safety by ensuring communication is not hindered with employees in safety-sensitive positions during work breaks in petroleum facilities." ^[38] This bill is in response to a California Supreme Court, Augustus v. ABM Security Services, Inc.^[39],which held that state law "requires that employees be completely relieved of work obligations during rest breaks and prohibits 'on-duty' and 'on-call' rest breaks.”^[40]

The author explained that, the ruling has significant impacts on facilities which rely on employees to keep radios with them during breaks to respond to emergencies. Radios have always been the primary means of communications during an emergency… Given the nature of the processes at petroleum facilities, the chemicals stored on-site, and the critical nature of these facilities' infrastructure, it is essential for an immediate and effective response to any unplanned event."^[41]

AB 2605^[42] provides an explicit exemption from the requirement that employees must be relieved of all duties during rest periods with respect to an employee holding a safety-sensitive position at a petroleum facility to the extent that the employee is required to carry and monitor a communication device, such as a radio, pager, or other form of instant communication, and to respond to emergencies, or is required to remain on employer premises to monitor the premises and respond to emergencies.

An important aspect of this measure concerns the definitions used.^[43] In that regard, the new law defines “Petroleum facilities”^[44] to mean petroleum refineries, marine and onshore terminals handling crude oil and petroleum products, bulk marketing terminals, asphalt plants, gas plants, catalyst plants, carbon plants, and any other facility involved in the processing, refining, transport, or storage of crude oil or petroleum products.

In addition, “Safety-sensitive position”^[45] means a job in which the employee’s job duties reasonably include responding to emergencies at a petroleum facility. And, “Emergency”^[46] means a situation or event requiring prompt or immediate intervention to prevent or respond to a disruption in normal operations, which could cause harm to employees, equipment, the environment, or the community.

Moreover, this exemption only applies where the employee is covered by a valid collective bargaining agreement which expressly provides for the wages, hours of work, and working conditions of employees, and expressly provides for rest periods for those employees, final and binding arbitration of disputes concerning application of its rest period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than 30 percent more than the state minimum wage rate.^[47]

Finally, AB 2605 does not apply to existing cases filed before the effective date of this section^[48] and sets forth a sunset date of January 1, 2021, and as of that date is repealed.^[49]

Limited Privilege for Employer Communications of Sexual Harassment Claims Against Former Employees – AB 2770

Governor Jerry Brown signed AB 2770^[50] (Irwin) into law on July 9. This bill^[51] expands existing law concerning privileged communications to include a limited one by former employers dealing with former employees and claims of sexual harassment.

While existing state law authorizes an employer to answer whether or not that employer would rehire an employee, there has been concern over lawsuits being filed by former employers made to prospective employers about prior employees. In some instances, civil actions are brought by these former employees when information is provided regarding job performance or qualifications of an applicant for employment.^[52]

AB 2770 includes among existing privileged communications any complaints of sexual harassment by an employee, so long as the communication is made without malice, and the communications are based upon credible evidence regarding a complaint of sexual harassment. Moreover, the bill authorizes an employer to answer without malice whether that employer would rehire the employee based upon the employer’s determination that the former employee engaged in sexual harassment.^[53]

AB 2770 changes the law in two specific clauses. First, it adds a sentence that this particular subdivision “applies to and includes a complaint of sexual harassment by an employee, without malice, to an employer based upon credible evidence and communications between the employer and interested persons, without malice, regarding a complaint of sexual harassment.”^[54]

Second, its amends the existing provisions to state that this particular subdivision authorizes a current or former employer, or the employer’s agent, to “answer, without malice,” whether or not the employer would rehire a current or former “employee and whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.”^[55]

According to the Senate Floor Analysis^[56], the bill, “This bill would allow former employers to inform potential employers about whether a decision to terminate or not rehire an individual is based upon the employer’s determination that the former employee engaged in sexual harassment. This bill does not provide an absolute privilege to these types of communications, but a conditional privilege whereby the statements made by the former employer cannot be made with malice.”

“This bill would also protect the victims of sexual harassment from defamation lawsuits that arise when the victim makes a credible harassment complaint. A victim of sexual harassment should not be further deterred to file a sexual harassment complaint because of the threat of a lawsuit by the harasser. This bill not only protects the victims, but also protects future victims from repeat sexual harassment offenders who can currently go from job to job undetected.”^[57]

This bill was sponsored by the California Chamber of Commerce. In support of the bill, 35 groups wrote “AB 2770 codifies case law to ensure victims of sexual harassment and employers are not sued for defamation by the alleged harasser when a complaint of sexual harassment is made. California’s public policy protects employees from harassment and AB 2770 furthers this public interest.”^[58]

California Limits Certain Types of Contract Waivers – AB 3109

Governor Jerry Brown signed AB 3109^[59] (Stone) into law on September 30. The bill^[60] renders unenforceable any provision in a contract or settlement agreement that prevents a person from testifying in a judicial, administrative or legislative proceeding in response to a court order, subpoena or official request about alleged criminal conduct or sexual harassment.

During the 2018 Legislative Session, there were a number of bills that attempted to curb the use of secret settlements while still allowing their use in appropriate circumstances. According to the Senate Floor Analysis^[61], “[This bill] permits non-disclosure agreements so long as the parties are always able to speak as to the matters covered by the settlement if they are ordered or asked to do so in some official context: judicial, administrative, or legislative.”

AB 3109^[62] added the following section: “Notwithstanding any other law, a 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 to the contract or settlement agreement, or on the part of the agents or employees 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, is void and unenforceable.”

SENATE BILLS

Another Sexual Harassment Bill Enacted in California – SB 224

Governor Jerry Brown signed SB 224^[63] (Jackson) into law on September 30. This bill^[64] adds investor, elected official, lobbyist, director, and producer to the list of examples of relationships that are covered by existing law^[65]. That code section imposes civil liability for sexual harassment in business, service or professional contexts.^[66]

According to the Senate Floor Analysis^[67] of the bill, because the current list of examples is not exclusive, this bill is declaratory of existing law. “Nonetheless, it serves to highlight that investors, elected officials, lobbyists, directors, and producers can be subject to liability if they engage in sexual harassment.”

While the bill was in the other house, the Assembly extended potential liability to those who hold themselves out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party.^[68] The Assembly amendments authorize the Department of Fair Employment and Housing (DFEH) to receive, investigate, conciliate, mediate, and prosecute complaints alleging a violation related to Civil Code Section 51.9.^[69] And, the Assembly amendments added Civil Code Section 51.9 to the list of statutes in the Fair Employment and Housing Act (FEHA) that create rights which, if a person were to deny or to aid, incite, or conspire in the denial of those rights, are an unlawful practice under FEHA.^[70]

Existing law establishes liability for sexual harassment when the plaintiff proves specified elements including, among other things, that there is a business, service, or professional relationship between the plaintiff and defendant and there is an inability by the plaintiff to easily terminate the relationship.^[71] Existing law states that a relationship may exist between a plaintiff and certain persons including an attorney, holder of a master’s degree in social work, real estate agent, and real estate appraiser.^[72]

SB 224^[73] includes within the elements in a cause of action for sexual harassment when the plaintiff proves that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service or professional relationship with the defendant or a third party.^[74]

First, the bill eliminates the element that the plaintiff proves there is an inability by the plaintiff to easily terminate the relationship.^[75] Second, the bill includes an investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment.^[76] Third, this bill makes the DFEH responsible for the enforcement of sexual harassment claims.^[77] Fourth, the bill makes it an unlawful practice to deny or aid, incite, or conspire in the denial of rights of persons related to sexual harassment actions.^[78]

California Prohibits Confidential Settlement Agreements – SB 820

Governor Jerry Brown signed SB 820^[79] (Leyva) into law on September 30. This bill^[80] prohibits a provision within a settlement agreement that prevents the disclosure of factual information related to specified claims or complaints in either a civil action or an administration action.

This bill^[81] allows plaintiffs in these actions to retain the right to request provisions in settlement agreements that shield their identity. The Assembly amendments expanded the claims covered by the bill, extended the scope to cover court orders, and narrowed the exception available at the request of the claimant.^[82]

Existing state law prohibits a provision in a settlement agreement that prevents the disclosure of factual information related to a civil action with a factual foundation establishing a cause of action for civil damages for certain enumerated sexual offenses.^[83]

The bill makes a provision in a settlement agreement that prevents the disclosure of factual information related to the claim, entered into on or after January 1, 2019, void as a matter of law and against public policy.^[84] The bill also provides that a court may consider the pleadings and other papers in the record, or any other findings of the court in determining the factual foundation of the causes of action specified in these provisions.^[85]

SB 820 applies if the claim relates to an act of sexual assault, sexual harassment, workplace harassment or discrimination based on sex, or retaliation for reporting harassment or discrimination based on sex.^[86] The bill does not prohibit the entry or enforcement of a provision of any agreement that precludes the disclosure of the amount paid in settlement of a claim.^[87]

The bill creates an exception, wherein it is not applicable if a party is a government agency or public official, for a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, if the provision is included within the settlement agreement at the request of the claimant.^[88]

California Mandates Women on Corporate Boards – SB 826

Governor Jerry Brown signed SB 826^[89] (Jackson) into law on September 30. This bill^[90] requires each publicly held corporation whose principal executive offices are located in California to have a minimum number of women on its board of directors. The bill sets forth numerous statements of legislative intent as a basis for the bill’s provisions.^[91]

SB 826^[92], no later than the close of the 2019 calendar year, requires a domestic general corporation or foreign corporation that is a publicly held corporation, whose principal executive offices according to the corporation’s SEC 10-K form are located in California, to have a minimum of one female on its board of directors.^[93]

Thereafter, the bill specifies that, no later than the close of the 2021 calendar year, the required minimum number must be 2 female directors if the corporation has 5 directors or 3 female directors if the corporation has 6 or more directors.^[94] A corporation may increase the number of directors on its board to comply with these provisions.^[95] Again, a female director having held a seat for at least a portion of the year is not a violation.^[96]

The bill requires the Secretary of State (SOS) to review and issue reports regarding corporations’ compliance with the bill’s provisions and to impose fines for violations of the bill.^[97] The Assembly made several modifications to the bill including adding a fine for failing to timely file board member information with the SOS, modifying the dollar amounts of the fines imposed for first and subsequent violations of the bill, and clarifying that a female director that holds a board seat for at least a portion of the year shall not represent a violation of the bill.^[98]

In addition, SB 826^[99] requires no later than March 1, 2020, and annually thereafter, the SOS to publish a report on its website^[100] that contains the following information:

• The number of corporations subject to this section that were in compliance with the requirements of this section during at least one point during the preceding calendar year.^[101]

• The number of publicly held corporations that moved their United States headquarters to California from another state or out of California into another state during the preceding calendar year.^[102]

• The number of publicly held corporations that were subject to this section during the preceding year, but are no longer publicly traded.^[103]

The bill authorizes the SOS to impose fines for violations of the bill and provides that moneys from these fines are to be available, upon appropriation, to offset the cost of administering the bill’s provisions.^[104] These include: For failure to timely file board member information with SOS, the amount of $100,000.^[105] For a second or subsequent violation, the amount becomes $300,000.^[106]

Finally, the bill^[107] sets forth the requirements of the bill apply to a foreign corporation that is a publicly held corporation (i.e., a foreign corporation with outstanding shared listed on a major US stock exchange) “to the exclusion of the law of the jurisdiction in which the foreign corporation is incorporated.”^[108]

New Requirements on Attorneys in Mediation Proceedings – SB 954

Governor Jerry Brown signed Senate Bill 954^[109] (Wieckowski) into law on September 11. This bill^[110] imposes new requirements on attorneys representing individuals in mediation proceedings.

Pursuant to existing California law^[111], if an individual consults with a mediator to retain his or her services, or agrees to participate in a mediation to resolve a civil dispute, anything said in the course of mediation is not admissible in evidence nor is it subject to discovery. In addition, with specified exceptions, all communications, negotiations and settlement discussions between participants or mediators are confidential.^[112]

Except in the case of a class action, SB 954 requires an attorney representing an individual who participates in a mediation to provide his or her client with a printed disclosure that contains the confidentiality restrictions that apply to mediations.^[113] The attorney is required to obtain a printed acknowledgement signed by the client that provides he or she has read and understands those confidentiality restrictions.^[114]

In addition, SB 954 specifies language that is deemed to be compliant with the printed disclosure and acknowledgement requirements set forth in the law.^[115] Failure to comply with these requirements does not invalidate an agreement prepared in the course of a mediation.^[116] Compliance with these requirements, or the lack thereof, may be used in attorney disciplinary proceedings in specified circumstances.^[117]

SB 954 added a third provision to specify when a writing is not made inadmissible.^[118] The existing instances are if all parties agree in writing to disclosure or the writing was prepared by or on behalf of fewer than all the mediation participants.^[119]

Now this section of law includes “The communication, document, or writing is related to an attorney’s compliance with the requirements described in Section 1129 and does not disclose anything said or done or any admission made in the course of the mediation, in which case the communication, document, or writing may be used in an attorney disciplinary proceeding to determine whether the attorney has complied with Section 1129.”^[120]

In addition, SB 954^[121] provides that, except in the case of a class or representative action, an attorney representing a client that participates in a mediation or mediation consultation must provide, before the client agrees to participate, a printed disclosure containing the confidentiality restrictions and obtain a printed acknowledgement that has been signed by the client stating that he or she read and understands the confidentiality restrictions.

The printed disclosure required^[122] by subdivision (a) must (1) be printed in the preferred language of the client in at least 12-point font; (2) be printed on a single page that is not attached to any other document provided to the client; and, (3) include the names of the attorney and the client and be signed and dated by the attorney and the client. Finally, the bill^[123] provides a disclosure notification and acknowledgment that is deemed to comply with the requirements of the new law.

Employers Required to Provide Human Trafficking Education – SB 970

Governor Jerry Brown signed SB 970^[124] (Atkins) into law on September 27. This bill^[125] requires that hotels and motels provide human trafficking education to employees who interact with the public. The Assembly did exempt bed and breakfast inns from the provisions of this bill.^[126]

Existing state law^[127] requires specified businesses and other establishments to post a notice that has been developed by the Department of Justice and that contains information relating to slavery and human trafficking, including information regarding specified nonprofit organizations that a person can call for services or support in the elimination of slavery and human trafficking.^[128]

The California Fair Employment and Housing Act (FEHA)^[129] requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years.^[130]

SB 970^[131] amends FEHA to require specified employers to provide at least 20 minutes of prescribed training and education regarding human trafficking awareness to employees who are likely to interact or come into contact with victims of human trafficking.^[132] The bill establishes a schedule for compliance commencing January 1, 2020 and authorizes the Department of Fair Employment and Housing, in the case of an employer violation of the bill’s requirements, to seek an order requiring compliance.^[133]

The bill^[134] provides a number of new provisions of law. First, it defines “employer” to mean a hotel or motel and excludes a bed and breakfast inn.^[135] In addition to requiring 20 minutes of classroom or other effective interactive training and education to each employee who is likely to interact with human trafficking victims, after January 1, 2020 an employer must do so every two years.^[136]

Thereafter, SB 970 defines “an employee who is likely to interact or come into contact with victims of human trafficking” to include “an employee who has reoccurring interactions with the public, including, but not limited to, an employee who works in a reception area, performs housekeeping duties, helps customers in moving their possessions, or drives customers.”^[137]

The human trafficking awareness training and education^[138] must include at a minimum:

• The definition of human trafficking and commercial exploitation of children.^[139]

• Guidance on how to identify individuals who are most at risk for human trafficking.^[140]

• The difference between labor and sex trafficking specific to the hotel sector.^[141]

• Guidance on the role of hospitality employees in reporting and responding to this issue.^[142]

• The contact information of appropriate agencies, including, but not limited to, the National Human Trafficking Hotline toll-free telephone number, 1-888-373-7888, and text line, 233733, and the telephone numbers of the appropriate local law enforcement agencies.^[143]

The new law allows the use of materials and information provided by the Department of Justice, the Blue Campaign of the federal Department of Homeland Security, and private nonprofit organizations that represent the interests of victims of human trafficking.^[144]

In addition, the bill provides the following statement of legislative intent: “It is the intent of the Legislature in enacting this section to establish a minimum threshold for human trafficking awareness training and education. This section shall not be construed to discourage or relieve an employer from providing for longer, more frequent, or more elaborate training and education regarding human trafficking awareness. It is further the intent of the Legislature to encourage employers to take all reasonable steps necessary to lead to the rescue of human trafficking victims and prevent any kind of human trafficking in their establishments.”^[145]

Finally, the bill’s author submitted the following letter to the Senate Daily Journal on August 31^[146] as follows:

“August 30, 2018 Mr. Daniel Alvarez Secretary of the Senate Re: SB 970 (Atkins) Intent Dear Mr. Alvarez: I have authored SB 970, which ensures that hotel and motel employees receive training to recognize the signs of human trafficking and report those signs to law enforcement. I submit this letter to the Senate Journal for the purposes of clarifying the intent of SB 970. SB 970 clearly and deliberately exempts bed and breakfast inns under subdivision (a) of Section 12950.3. However, the reporting requirement in subdivision (e) of Section 12950.3 does not properly reflect this exemption, which is not the intent of the bill. Should this legislation be signed into law, it is my intent to work with the appropriate policy committees to correct the language in subdivision (e) of Section 12950.3 in order to reflect the intent stated above. Thank you for the opportunity to clarify this intent. Warmest regards, TONI G. ATKINS President pro Tempore of the Senate”

California Bill Creates Court “Guidance” for FEHA Litigation – SB 1300

Governor Jerry Brown signed SB 1300^[147] (Jackson) into law on September 30. This bill^[148] addresses several provisions of law related to litigating harassment claims and, among other provisions, prohibits employers from requiring employees to sign a release of claims under the Fair Employment and Housing Act (FEHA) in exchange for a raise or as a condition of employment.

Existing state law^[149], FEHA, makes it an unlawful employment practice for an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to engage in harassment of an employee or other specified person.^[150] FEHA also makes harassment of those persons by an employee, other than an agent or supervisor, unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action.^[151]

SB 1300^[152] specifies that an employer may be responsible for the acts of nonemployees with respect to other harassment activity.^[153] With certain specified exceptions, the bill 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.^[154]

In addition, FEHA requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years.^[155] SB 1300 authorizes an employer to provide bystander intervention training to their employees.^[156]

The bill adds the following provisions: “An employer may also provide bystander intervention training that includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training and education may include exercises to provide bystanders with the skills and confidence to intervene as appropriate and to provide bystanders with resources they can call upon that support their intervention.”^[157]

FEHA also authorizes a court in certain circumstances and in its discretion to award the prevailing party in a civil action reasonable attorney’s fees and costs, including expert witness fees.^[158] SB 1300 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.^[159]

Finally, SB 1300 makes numerous findings and declarations in Section One of the bill about the application of FEHA in regard to harassment.^[160] In addition, the bill’s author submitted the following letter to the Senate Daily Journal on August 31^[161] as follows:

“August 31, 2018 The Honorable Toni Atkins President pro Tempore of the Senate Re: Letter to the Journal, Senate Bill 1300 (Jackson) Dear Senator Atkins: I would like to request that this letter be printed in the Senate Daily Journal regarding Senate Bill 1300. SB 1300 is a measure intended to combat harassment and discrimination in the workplace by closing legal loopholes and strengthening protections under the Fair Employment and Housing Act (FEHA).

I wish to clarify that Section 4 of the bill, adding Section 12964.5 to the Government Code, is not intended to apply to negotiated severance agreements. Under this Section, the bill states that it is “an unlawful employment practice 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 a non-disparagement agreement, as defined. The language “as a condition of employment or continued employment” is intended to mean the employee is required to sign the agreement in order to get to keep a job. Sincerely, HANNAH-BETH JACKSON Senator, 19th District”

New Sexual Harassment Training for Employees Required – SB 1343

Governor Jerry Brown signed SB 1343^[162] (Mitchell) into law on September 30.  This bill^[163] reduces the sexual harassment training requirement threshold from employers with 50 or more employees to employers with 5 or more employees, including non-supervisorial employees in the training.^[164] The bill also requires that the Department of Fair Employment and Housing (DFEH) develop an online training course and make it available on the DFEH’s Web site.^[165]

The Assembly made amendments to this bill to clarify that non-supervisorial employees must attend at least one hour of sexual harassment training^[166] and the Assembly provided distinct requirements for temporary employees.^[167]

Existing law, the California Fair Employment and Housing Act (FEHA) requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years.^[168]

SB 1343 instead requires an employer who employs 5 or more employees, including temporary or seasonal employees, to provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees by January 1, 2020, and once every 2 years thereafter.^[169]

In addition, the bill requires DFEH to develop or obtain 1-hour and 2-hour online training courses on the prevention of sexual harassment in the workplace and to post the courses on the DFEH Internet Web site.^[170] DFEH is also required to make existing informational posters and fact sheets, as well as the online training courses, available to employers and to members of the public in specified alternate languages on the department’s Internet Web site.^[171]

The bill requires DFEH to make the poster, fact sheet and online training courses available in English, Spanish, Simplified Chinese, Tagalog, Vietnamese, Korean, and any other language that is spoken by a substantial number of non-English-speaking people.^[172] DFEH must make versions of the online training courses with subtitles in each language and orally dub the online training courses into each language.^[173] The poster, fact sheet and online training courses must be made available to employers and the public through its website.^[174]

The law was changed ^[175]to reduce the employee threshold from 50 or more employees to 5 or more employees to receive at least two hours of classroom or other interactive training and education, and require at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all non-supervisory employees in California within six months of assuming their position.

This required training can be provided with other training of employees and the employees can complete this required training individually or as part of a group presentation.^[176] They can also complete the training in shorter segments as long as the total hourly requirement is reached.^[177]

Seasonal and temporary employees must be provided training within 30 calendar days after being hired.^[178] A temporary staffing agency is required to provide the training to its temporary employees.^[179] In addition, similar sexual harassment prevention training must be provided to migrant and seasonal agricultural workers.^[180] The training for these categories of workers must begin January 1, 2020.^[181]

Finally, SB 1343 requires DFEH to ensure its online training courses contain an interactive feature that requires the viewer to respond to a question periodically in order for the online training courses to continue to play.^[182]

Bill Imposed Joint and Several Liability on Certain Retailers – SB 1402

Governor Jerry Brown signed SB 1402^[183] (Lara) on September 22. Among other provisions, the bill^[184] requires joint and several liability for customers who contract with port drayage services who have unpaid wage, tax and workers’ compensation liability. The bill also contains numerous statements of legislative intent.^[185]

Under existing California law, a “client employer” must share with a “labor contractor” all civil legal responsibility and civil liability for all workers supplied by that labor contractor for the payment of wages and the failure to obtain valid workers’ compensation coverage.^[186]

SB 1402 requires a customer that, as part of its business, engages or uses to perform port drayage services a port drayage motor carrier that is on a list established by the Division of Labor Standards Enforcement (DLSE) and posted on its Internet Web site to share with the motor carrier all civil legal responsibility and civil liability for port drayage services obtained after the date the motor carrier appeared on the list.^[187]

As part of the new law, DLSE is required to notify a port drayage motor carrier at least 15 business days before adding the port drayage motor carrier to its Internet Web site^[188] and requires a port drayage motor carrier who provides port drayage services to a customer, prior to providing those services, and within 30 business days of entry of the judgment, to furnish a prescribed notice to the customer concerning unsatisfied judgments against the motor carrier for unpaid wages, damages, unreimbursed expenses, and penalties.^[189]

Under SB 1402, “customer^[190],” with certain exceptions, means a business entity, regardless of its form, that engages or uses a port drayage motor carrier to perform port drayage services on the customer’s behalf. The bill prohibits a customer and a port drayage motor carrier from taking any adverse action against a commercial driver for providing notification of violations or filing a claim or civil action.^[191]

However, the bill with some exceptions does not apply the joint and severable liability to customers who engage a drayage motor carrier whose employees are covered by a collective bargaining agreement^[192] or to a customer who wishes to terminate an existing contract until the termination date or until 90 business days following the listing of the drayage motor carrier on the division’s Internet Web site, whichever is shorter.^[193]

Finally, the bill authorizes the Labor Commissioner and the Employment Development Department to adopt necessary regulations and rules to administer and enforce the bill’s provisions^[194], and provides that waiver of its provisions is contrary to public policy, void, and unenforceable.^[195]

The major support of SB 1402 was the California Teamsters Public Affairs Council, which said “SB 1402 will attempt to address the well documented swamp of illegality that exists in the port motor carrier industry, where drivers are regularly subjected to misclassification, fraud, and wage theft, and where large shippers who hire the trucking companies just look the other way. Currently, there is over $40 million in unsatisfied judgments against port trucking companies for illegal treatment of their drivers. There is perhaps no workforce in California where abuse of workers is more commonplace or more out of control.”^[196]

The opposition was led by the California Chamber of Commerce, which argued, “SB 1402 imposes liability upon a third-party customer for the wage and hour obligations of a motor carrier even though there is absolutely no evidence or proof that the customer exerted any control over the working conditions of the motor carrier’s employees. There is simply no basis for a business that contracts for motor carrier services to be deemed statutorily liable for wages and other expenses when there is no way in which a customer can engage or force the motor carrier to comply with provisions of the Labor Code.”^[197]

The bill’s author submitted the following letter to the Senate Daily Journal on August 31^[198] as follows:

“August 31, 2018 Mr. Daniel Alvarez Secretary of the Senate Re: SB 1402 (Lara) Dear Mr. Alvarez: This Legislature enacted Senate Bill 1402, which I authored. The goal of this legislation is to address violations of state labor and employment laws in the port drayage industry. I submit this letter to the Senate Journal for the purpose of clarifying the intent of this measure. It is the intent of the Legislature that the Division of Labor Standards Enforcement list of port drayage motor carriers posted pursuant to Section 2810.4(b)(1) would be effective the fifth day of the month so that customers using port drayage motor carriers would only have to check the list once a month. It is the intent of the legislation that any port drayage motor carrier that provides port drayage services to a customer, as defined, shall furnish written notice of any unsatisfied final judgments against the motor carrier for labor and employment violations listed in the bill. It is the intent that this notice be provided to each customer in the supply chain, including subcontracting carriers, brokers, freight forwarders, and retailers. Thank you for the opportunity to clarify this matter. Sincerely, RICARDO LARA Senator, 33rd District”

New Rule for Employers Considering Prior Convictions – SB 1412

Governor Jerry Brown signed SB 1412^[199] (Bradford) on September 30.  This bill^[200] requires employers to only consider convictions relevant to the job which applicants are applying for when screening job applicants using a criminal background check.

As a result of Assembly amendments, SB 1412 now clarifies that employers under this bill include public agencies, private individuals and corporations^[201]; and states that employers will not be prohibited from conducting criminal background checks for employment purposes, restricting employment based on criminal history, or seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures otherwise provided for under federal, state, or local laws.^[202]

Existing state law prohibits an employer, whether a public agency or private individual or corporation, from asking an applicant for employment to disclose, from seeking from any source, or from utilizing as a factor in determining any condition of employment, information concerning participating in a pretrial or posttrial diversion program or concerning a conviction that has been judicially dismissed or ordered sealed.^[203]

This bill defines “particular conviction”^[204] and the bill specifies that these provisions do not prohibit an employer, including a public agency or private individual or corporation, required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements or prohibit an employer from seeking or receiving an applicant’s criminal history report obtained under procedures provided under federal, state, or local law.^[205]

The law^[206] was amended to add that an employer can be a public agency, a private individual or a corporation. In addition, that subdivision^[207] was amended to eliminate the term “criminal conviction” and substitute the term “particular conviction.”

SB 1412 modifies three out of the four exceptions.^[208] As a result, those exceptions now provide:

1. The employer is required by law to obtain information regarding a conviction of an applicant. the particular conviction of the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.^[209]

(B) The applicant would be required to possess or use a firearm in the course of his or her employment.^[210]

(C) An individual who has been convicted of a crime with that particular conviction is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.^[211]

(D) The employer is prohibited by law from hiring an applicant who has been convicted of a crime. that particular conviction, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.^[212]

A definition of “particular conviction” was added^[213] and is defined to mean “a 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 offenses.”

Finally, clarification^[214] is provided that “Nothing in this section shall prohibit an employer, whether a public agency or private individual or corporation, required by state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history from complying with those requirements, or to prohibit the employer from seeking or receiving an applicant’s criminal history report that has been obtained pursuant to procedures otherwise provided for under federal, state, or local law.“

The bill’s author submitted the following letter to the Senate Daily Journal on August 31^[215] as follows:

“August 31, 2018 Mr. Daniel Alvarez Secretary of the Senate Re: SB 1412 (Bradford): Applicants for employment: criminal history Dear Mr. Alvarez: I have authored SB 1412, which is intended to address situations where employers rely on a job applicant’s criminal history information to make a hiring decision when that information is (1) unrelated to the job in question and (2) has been judicially dismissed. This practice is counterproductive to important societal goals relating to rehabilitation and reintegration. Furthermore, it creates unfair barriers to employment for candidates that are fit and qualified for the positions they seek, and employers suffer when overly broad exclusions limit their ability to hire the best candidate for the job. As I have said consistently throughout the legislative process, SB 1412 is not intended to prevent or impact the important and sensitive screening work needed to be conducted by financial institutions in their hiring processes. In addition to the statements I have made, I have also taken several amendments to ensure this result. I want to formally and explicitly state here that this bill clearly allows financial institution employers to seek, receive, and review background checks provided by, for example, the Federal Bureau of Investigation, the California Department of Justice, or private background check providers in accordance with current laws and regulations. Those reports will at times necessarily include criminal history information about the applicant that is beyond the scope of what the employer may consider in an employment decision. In these situations, where the employer lawfully obtains a criminal history report about the applicant, the employer will be in compliance with SB 1412 so long as the employer does not consider any beyond-the-scope criminal history information contained in the report. It is not my intent to put financial institution employers in conflict with their existing obligations under federal, state, and local law regarding the proper vetting of prospective employees. Thank you for the opportunity to clarify these matters. Sincerely, STEVEN BRADFORD Senator, 35th District”

VETEOD BILLS

While we normally only address signed bills that have become new law in California, there were quite a number of significant vetoes of labor and employment law bills by Governor Jerry Brown in the just-concluded 2018 Legislative Session that are worth reviewing. Also, we expect the proponents to reintroduce most, if not all, of these measures in 2019 with a new Governor taking office the first week in January.

As a result, the following is a short summary of the key vetoed bills along with Governor Brown’s veto message for each bill:

AB 1867 (Reyes) – Employment discrimination: sexual harassment: records.

This bill^[216] would have required an employer with 50 or more employees to maintain internal complaint records of employee complaints alleging sexual harassment for a minimum of 5 years after the last day of employment of the complainant or any alleged harasser named in the complaint, whichever is later.

In addition, the bill would have authorized the DFEH to seek an order requiring an employer that violates this recordkeeping requirement to comply. The following is Governor Brown’s veto message^[217]:

To the Members of the California State Assembly:
I am returning Assembly Bill 1867 without my signature.
This bill requires an employer of 50 or more employees to maintain records of complaints alleging sexual harassment for at least five years after the last day of employment of the complainant or alleged harasser, whichever is later. 
This bill, under certain circumstances, could lead to the retention of records for decades. It would also require complaints alleging sexual harassment to be maintained for the same length of time regardless of the result of the investigative process, meaning even unfounded complaints would need to be maintained.
For these reasons, and because current law already requires personnel records --including records of complaints-- be maintained for suitable periods of time, the time expansion of this bill is unwarranted.
Sincerely,
Edmund G. Brown Jr.

AB 1870 (Reyes) – Employment discrimination: limitation of actions.

This bill^[218] would have extended the statute of limitations period to 3 years for complaints alleging employment discrimination. The bill would have made conforming changes in provisions that grant a person allegedly aggrieved by an unlawful practice who first obtains knowledge of the facts of the alleged unlawful practice after the expiration of the limitations period.

In addition, the bill would have stated that its changes shall not be interpreted to revive lapsed claims. The following is Governor Brown’s veto message^[219]:

To the Members of the California State Assembly:
I am returning Assembly Bill 1870 without my signature.
This bill extends the deadline to file a complaint with the Department of Fair Employment and Housing from one year to three years for the employment provisions of the Fair Employment and Housing Act.
Employees who have experienced harassment or discrimination in the workplace should have every opportunity to have their complaints investigated. I believe, however, that the current filing deadline--which has been in place since 1963--not only encourages prompt resolution while memories and evidence are fresh, but also ensures that unwelcome behavior is promptly reported and halted.
Sincerely,
Edmund G. Brown Jr.

AB 2079 (Gonzalez Fletcher) – Janitorial workers: sexual violence and harassment prevention training.

The bill^[220] would have required an advisory committee to approve and recommend certain qualified organizations to the DIR director. The bill would have prescribed certain minimum qualifications for qualified organizations and peer trainers. The bill would have required the DIR director to develop, maintain, and update as prescribed a list of qualified organizations and qualified peer trainers, as recommended by the advisory committee.

In addition, this bill would have prohibited the DIR from registering or renewing the registration of an employer if the employer has not fully satisfied a final judgment for certain unlawful employment practices. The following is Governor Brown’s veto message^[221]:

To the Members of the California State Assembly:
I am returning Assembly Bill 2079 without my signature.
This bill would make numerous changes to the Property Service Worker Protection Act established by AB 1978 (Gonzalez, Ch.373, Stats. of 2016). The Labor Commissioner just recently finished implementing the initial registration requirement and is in the process of promulgating regulations to create the sexual harassment and violence prevention training program required by the Act.
The Author and sponsors of this measure were ahead of their time when they created this program, the first of its kind in the country, two years ago. The Labor Commissioner is still in the early stages of ensuring that this program is successful and lives up to its promise of protecting janitorial workers. We should allow full implementation of this program before proposing significant changes.
Sincerely,
Edmund G. Brown Jr.

AB 2732 (Gonzalez Fletcher) – Employment: unfair immigration-related practices: janitorial workers: sexual violence and harassment prevention training.

This bill^[222] would have made it unlawful for an employer to knowingly destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration document, or any other actual or purported government identification document of another person in the course of committing, or with the intent to commit, trafficking, peonage, slavery, involuntary servitude, or a coercive labor practice.

The bill would have imposed specified civil and criminal penalties for a violation. The bill would have also authorized the Labor Commissioner to issue a citation for a violation, as prescribed. The bill would have required an employer to post a prescribed workplace notice with information including the right to maintain custody and control of immigration documents and that the withholding of immigration documents by an employer is a crime.

Moreover, the bill would have required an employer to provide to an employee a document entitled the “Worker’s Bill of Rights,” to be developed and made available to employers by the Department of Industrial Relations on or before July 1, 2019, either prior to verifying an employee’s employment authorization pursuant to federal law governing the employment of unauthorized alien for an employee hired on or after July 1, 2019, or, if hired before July 1, 2019, when the department makes the document available.

In addition, the bill would have required an employer to provide the document in a language understood by the employee and to require such an employee to sign and date the document in acknowledgment that the employee has read and understood the employee’s rights.

This bill would have required new applicants for registration and renewal to demonstrate completion of the training requirements by submitting a written attestation to the commissioner. This bill would have amended the definition of the term “employer” to mean a person or entity that employs at least one covered worker or otherwise engages by contract, subcontract, or franchise agreement for the provision of janitorial services by one or more covered workers.

Finally, the bill would have excluded from that definition an entity that is the recipient of those janitorial services and would have required the records kept by the employer to also include the names, addresses, periods of work, and compensation paid to all other covered workers. The following is Governor Brown’s veto message^[223]:

To the Members of the California State Assembly:
I am returning AB 2732 without my signature.
This bill makes it unlawful - punishable by civil and criminal penalties - for an employer to knowingly destroy, conceal, remove, confiscate, or possess any immigration-related documents for human trafficking or any coercive labor practice. The bill also requires employers to provide a written "Worker's Bill of Rights" to every employee in the State of California.
Labor trafficking is a problem in our state and the provision of this bill that prohibits employers from withholding immigration documents from workers is very appropriate.
However, there is additional language that requires every single employer to provide to every single employee - millions in the state-- a new and detailed list of rights related to labor trafficking. This goes too far. The vast majority of California employers have nothing to do with labor trafficking, so this mandate as applied to them is burdensome and unwarranted.
Sincerely,
Edmund G. Brown Jr.

AB 3080 (Gonzalez Fletcher) – Employment discrimination: enforcement.

This bill^[224] would have prohibited a person from, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement, prohibiting an applicant for employment, employee, or independent contractor from disclosing to any person an instance of sexual harassment that the employee or independent contractor suffers, witnesses, or discovers in the workplace or in the performance of the contract, or otherwise opposing any lawful practice, or from exercising any right or obligation or participating in any investigation or proceeding with respect to unlawful harassment or discrimination.

In addition, the bill would have also prohibited an employer from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment, as a condition of employment, continued employment, the receipt of any employment-related benefit, or as a condition of entering into a contractual agreement.

Finally, the bill would prohibit an employer from threatening, retaliating or discriminating against, or terminating any applicant for employment or any employee because of the refusal to consent to the waiver of any right, forum, or procedure for a violation of specific statutes governing employment. The following is Governor Brown’s veto message^[225]:

To the Members of the California State Assembly:
I am returning Assembly Bill 3080 without my signature.
This bill prohibits an applicant for employment or employee from being required to waive his or her right to a judicial forum as a condition of employment or continued employment.
In my veto message of a similar bill in 2015, I referred to recent court decisions that invalidated state policies which unduly impeded arbitration. I also wanted to see how future United States Supreme Court decisions developed before endorsing a broad ban on mandatory arbitration agreements.
The direction from the Supreme Court since my earlier veto has been clear - states must follow the Federal Arbitration Act and the Supreme Court's interpretation of the Act. DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015).
This bill is based on a theory that the Act only governs the enforcement and not the initial formation of arbitration agreements and therefore California is free to prevent mandatory arbitration agreements from being formed at the outset. The Supreme Court has made it explicit this approach is impermissible. In 2017 Justice Kagan, an appointee of President Obama, writing on behalf of a near-unanimous Supreme Court, clearly rejected the assertion that the Federal Arbitration Act has no application to contract formation issues:
"By its terms, . . . the Act cares not only about the "enforce[ment]" of arbitration agreements, but also about their initial "valid[ity]"-that is, about what it takes to enter into them. Or said otherwise: A rule selectively finding arbitration contracts invalid because improperly formed fares no better under the Act than a rule selectively refusing to enforce those agreements once properly made. Precedent confirms that point."
Kindred Nursing Centers Ltd. Partnership v. Clark, 137 S. Ct. 1421, 1428 (2017).
Since this bill plainly violates federal law, I cannot sign this measure.
Sincerely,
Edmund G. Brown Jr.

AB 3081 (Gonzalez Fletcher) – Employment: sexual harassment.

This bill^[226] would have required a client employer to share with a labor contractor all civil legal responsibility and civil liability for harassment for all workers supplied by that labor contractor. This bill would have also prohibited an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of sexual harassment, as defined by FEHA.

In addition, the bill would have established a rebuttable presumption of unlawful retaliation based on the employee’s status as a victim of domestic violence, sexual assault, sexual harassment, or stalking if an employer takes specific actions within 30 days following the date that the victim provides notice to the employer or the employer has actual knowledge of the status. The following is Governor Brown’s veto message^[227]:

To the Members of the California State Assembly:
I am returning Assembly Bill 3081 without my signature.
This bill creates a new, ill-defined standard of joint liability between labor contractors and client employers, prohibits both entities from retaliating against an employee who has filed a harassment claim, and establishes a 30-day notice requirement before certain workers can file a civil action against a client employer.
Most of the provisions in this bill are contained in current law and are therefore unnecessary. To the extent there are new provisions, they are confusing.
Sincerely,
Edmund G. Brown Jr.

 

SB 937 (Wiener) – Lactation Accommodation.

This bill^[228] would have required an employer to provide a lactation room or location that includes prescribed features and would have required an employer, among other things, to provide access to a sink and refrigerator in close proximity to the employee’s workspace. The bill would have required an employer to develop and implement a policy regarding lactation accommodation and made it available to employees.

The bill would have also required an employer to maintain records of requests for lactation accommodation for 3 years and to give the Labor Commission access to those records. The bill would have provided that specified employers could seek an exemption from any of the requirements of these provisions if the employer could show that the requirement posed an undue hardship based on specified criteria.

In addition, the bill would have deemed denial of reasonable break time or adequate space to express milk a failure to provide a rest period in accordance with state law. The bill would have prohibited an employer from discharging, or in any other manner discriminating or retaliating against, an employee for exercising or attempting to exercise rights under these provisions and would establish specific additional remedies.

Finally, this bill would have required the Division of Labor Standards Enforcement to create a model lactation accommodation request form and to make it available for download from its Internet Web site by employees and employers. The bill would have authorized the division to establish a model lactation accommodation policy and lactation accommodation best practices to provide guidance to employers. The following is Governor Brown’s veto message^[229]:

To the Members of the California State Senate:
I am returning Senate Bill 937 without my signature.
This bill requires employers to provide a space that meets specified standards for employees with a desire to express breast milk in private.
I have signed AB 1976 which furthers the state's ongoing efforts to support working mothers and their families. Therefore, this bill is not necessary.
Sincerely,
Edmund G. Brown Jr.

On January 7, 2019, we will have a new Governor in the State of California. Employers and workers need to pay close attention on how this new individual will handle future bills in the labor and employment arena.

 

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_{[1] Chris Micheli is an attorney and legislative advocate for the Sacramento governmental relations firm of Aprea & Micheli, Inc. On behalf of his clients, he actively worked on the bills described in this article. He also serves as an Adjunct Professor at McGeorge School of Law.}

_{[2] Chapter 528.}

_{[3] Section Two of the bill reads as follows: This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to eliminate confusion created by subdivision (h) of Section 218.7 of the Labor Code at the earliest possible time, it is necessary for this measure to take effect immediately.}

_{[4] The bill amends Labor Code Section 218.7.}

_{[5] See Labor Code Section 218.7.}

_{[6] Id.}

_{[7] Id.}

_{[8] This repeal is of subdivision (h) of Section 218.7.}

_{[9] These requirements are contained in new subdivision (i) of Section 218.7.}

_{[10] Statutes of 2017, Chapter 804.}

_{[11] See Assembly Daily Journal, September 15, 2017, Page 3561.}

_{[12] Chapter 940.}

_{[13] The bill amends Labor Code Section 1031.}

_{[14] The changes made by this bill are effective January 1, 2019.}

_{[15] An “agricultural employer” is define in Labor Code Section 1140.4.}

_{[16] See Labor Code Section 1031(c).}

_{[17] See Labor Code Section 1031(d).}

_{[18] Labor Code Section 1030 and 1032.}

_{[19] In Labor Code Section 1031(a).}

_{[20] See Labor Code Section 1031(a).}

_{[21] See Labor Code Section 1031(b).}

_{[22] Labor Code Section 1031(b)(1).}

_{[23] Labor Code Section 1031(b)(2).}

_{[31] Section One of the bill reads as follows: “The Legislature finds and declares all of the following: (a) Industrial Welfare Commission Order No. 1-2001 Regulating Wages, Hours, and Working Conditions in the Manufacturing Industry governs employee rest periods at petroleum facilities. Section 12 of this order, as construed in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, requires that nonexempt employees be relieved of all duties during rest periods, including the duty to remain on call or carry radios or other forms of instant communication, or both.}

_{(b) As part of the energy sector, petroleum facilities are considered critical infrastructure and key resources in relation to homeland security.}

_{(c) Because of the nature of the processes at petroleum facilities, the chemicals stored onsite, and the critical nature of these facilities’ infrastructure, it is necessary to enable an immediate and effective response to any emergencies or breaches of security that may occur.}

_{(d) Current law as construed creates a potential hazard and present danger for operations at petroleum facilities, where on-shift employees in safety-sensitive positions must be reachable at all times in order to effectively protect employee and public health, safety, and welfare, and to avoid endangering local and national security due to unplanned events at these critical facilities.}

_{(e) By hindering the instant communications that are necessary for a petroleum facility to respond effectively to serious emergencies such as process upsets, leaks, or possible fires or explosions, mandating rest periods for safety-sensitive employees with no ability to communicate with those employees would prevent these facilities from being able to effectively prevent and curtail emergencies or security incidents, creating both workplace, public safety, and national security concerns.}

_{(f) To promote public and employee safety and facility security, it is necessary that employees holding safety-sensitive positions at petroleum facilities be required to be on call and carry instant communication devices during rest periods pursuant to the Occupational Safety and Health Standards Board’s and the industry’s longstanding best practices.”}