Don’t Get Left Behind in 2019: HR Considerations for CA employers as you prepare for the new year

December is traditionally a busy month for HR professionals preparing for the new year’s compliance updates, and this year is no exception. New legislation in the wake of the #MeToo movement significantly impacts most employers in CA. Read on to learn more about this and other recent legislation as you prepare your organization for 2019.

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In California, a flurry of legislation around sexual harassment requires most employers to implement (or at least modify current) sexual harassment training and take a careful look at related language within handbook policies, and non-disclosure, confidentiality and settlement agreement templates. Here’s an overview of these Senate (SB) and Assembly (AB) bills:

Sexual Harassment Training, SB 1343

Who: All CA employers with five or more employees

What: By January 1, 2020 employers must provide two hours of sexual harassment training for supervisory employees and one hour of training for non-supervisory employees. Training must be provided within six months of hire (or promotion to a supervisory role) and once every two years after the initial training. The requirement extends to seasonal and temporary employees.

Sexual Harassment in Non-Disclosure Agreements, SB 820

Who: All CA employers

What: Prohibits the inclusion of any language within a settlement agreement entered into on or after January 1, 2019 that would prevent disclosure of information related to claims of sexual assault, harassment and discrimination that have been filed in court or before an administrative agency.

Disclosure of Sexual Harassment, AB 3109

Who: All CA employers

What: Any provision within a contract or settlement agreement entered into on or after January 1, 2019 requiring a party to waive their right to testify about criminal conduct or sexual harassment committed by the other party (or party’s agents or employees) in conjunction with an administrative, legislative or judicial proceeding is considered void and unenforceable.

Privileged Communications, AB 2770

Who: All CA employers

What: Adds protection from defamation claims for specific types of communications regarding sexual harassment including allowing an employer to state that a former employee is not eligible for rehire because the employer determined that they engaged in sexual harassment.

FEHA Amendments, SB 1300

Who: All CA employers

What: These amendments have far-reaching implications to employers as it relates to discrimination and harassment law; this bill also affirms or rejects specified judicial decisions that impact future court decisions. Two key take-away's for employers are 1) it expands an employer’s potential liability for all forms of unlawful harassment by non-employees, and 2) bans employers from requiring a release of FEHA claims or rights in exchange for a raise, bonus or as a condition of employment.

Beyond the sexual harassment related legislation, there are many other legislative updates organizations need to review as they prepare for 2019. While not a comprehensive list, here are other notable CA legislative updates:

Lactation Accommodation, AB 1976

Who: All CA employers

What: Expands existing lactation accommodation law to specify that the location provided to express milk cannot be a bathroom. The bill also authorizes a temporary lactation location if certain conditions are met and provides a narrow undue hardship exemption.

Human Trafficking Notice & Training, AB 2034

Who: CA employers in designated industries

What: A business or establishment is required to post the updated DOJ Human Trafficking Notice on and after January 1, 2019. Additionally, certain mass transit employers are required to provide 20 minutes of training on human trafficking awareness to designated employees by January 1, 2020.

Human Trafficking Training, SB 970

Who: CA hotel and motel employers subject to FEHA

What: Requires employers to provide 20 minutes of training on human trafficking awareness to designated employees by January 1, 2020. Training must be provided within six months of hire and once every two years after the initial training.

Salary History, AB 2282

Who: All CA employers

What: This law clarifies last year’s AB 168 (Salary History Ban) by specifying that is acceptable practice for employer’s to ask applicants about “salary expectations”. Additionally, the employer obligation to provide information on “pay scales” at an external applicant’s request applies only after said applicant has completed an initial interview.

Wage Records, SB 1252

Who: All CA employers

What: Current and former employees are entitled to receive and keep a copy of their wage records, not just inspect or copy.

Board of Director Membership, SB 826

Who: All CA publicly traded companies

What: Before the end of 2019, all CA publicly traded companies must have at least one female member on their Board of Directors. Thereafter, the required number of women serving on the Board of Directors increases in 2020 and 2021 based on the number of individuals on the board.

Paid Family Leave, SB 1123

Who: All CA employers

What: Expands the Paid Family Leave program to employees who take time off to participate in a “qualifying exigency” related to the covered active duty status of the employee’s spouse, registered domestic partner, child or parent. Effective 1/2021.

Criminal History, SB 1412

Who: All CA employers

What: When using a criminal background check in the screening process, employers can consider only a “particular conviction” relevant to the job and only under the specified conditions.

Finally, consider any new minimum wage requirements that your organization may need to implement. Although the federal minimum wage (currently at $7.25) has not increased since 2009, many states and municipalities have higher minimum wage standards and any increases to these typically go into effect on January 1 each year. Additionally, there is an increase in the salary minimum threshold for CA employees classified under the “computer software professional” exemption to $94,603.25 annually/ $45.41 hourly. List of US Federal, States, Cities Minimum Wage and Rates-Only Update

Next Steps

Employers should evaluate the impact new legislation has on training requirements, policies and process within their organization. Are you prepared to implement compliant sexual harassment training to meet the January 2020 deadline? Is your recruitment process and training reflective of the salary history and criminal history ban requirements? Have your handbook policies been updated to reflect new standards related to EEO, anti-harassment, lactation, Paid Family Leave programs, and more. It’s a lot to consider!?!

Should you need any assistance with these or any other HR initiatives, please feel free to reach out.

#2019 #HRupdates