On September 30th, 2018, the last day to sign or veto bills, Governor Jerry Brown altered the landscape for California employers in a number of significant ways. Here are some of the new laws taking effect on January 01, 2019 (unless otherwise noted) that employers should anticipate:
Sexual Harassment (SB 1300). SB 1300 amends the California Fair Employment and Housing Act (FEHA) to prohibit other nondisclosure agreements related to alleged claims of sexual harassment and overturn prior court rulings that limited harassment lawsuits.
• Expands an employer’s potential liability for the acts of non-employees (applicants, interns, temps and contractors) to all forms of unlawful harassment (removing the “sexual” limitation).
• Prohibits employers from requiring an employee to sign (as a condition of employment, raise, or bonus): (1) a release of FEHA claims or rights or (2) a document prohibiting disclosure of information about unlawful acts in the workplace, including non-disparagement agreements.
• Employers may provide employees with bystander intervention training but is not required to at this time.
Recommendation: Review employee handbook and policies for statements regarding non-employees and employer responsibilities. Make adjustments as necessary.
Sexual Harassment Training (SB 1343).Current law requires employers with 50 or more employees to provide supervisors with two hours of sexual harassment training within six months of hire or promotion.
• Beginning January 1, 2020, all employers with 5 or more employees will be required to provide two hours of sexual harassment training to supervisors and one hour to non-supervisory employees within six months of hire or promotion, and every two years after that.
• Employers who provide the training to employees in 2019 will not be required to retrain the same employees in 2020.
• Temporary and seasonal employees must be trained within 30 days of hire or 100 hours worked, whichever is earlier. Temporary services employers will be responsible for training employees who are placed with clients.
• The Department of Fair Employment and Housing will be required to provide an online training course that meets the new legal requirements (expected date of provided training course has not been released).
Recommendation: Review training records and take steps to train employees who have not participated in Sexual Harassment Training previously. Review records to confirm when supervisors/managers were last trained. Contact SDHRC for more information on sexual harassment training options.
Salary History (AB 2282). This new law clears up ambiguities in last year’s AB 168, the ban on salary history inquiries and the requirement to provide pay scales to applicants.
• Employers can ask about an applicant’s salary expectations for the position being applied for;
• Only external applicants (not current employees) are entitled to a pay scale upon request, and only after completing an initial interview; and
• The pay scale provided only needs to include salary or hourly wage ranges.
In addition, compensation decisions based on a current employee’s existing salary, such as for giving raises or bonuses, may be permissible if justified by factors such as a seniority or merit system.
Recommendation: Recruitment, hiring and compensation practices should be reviewed annually to ensure they reflect these subtle changes. As a reminder…Employment Applications should be reviewed for reference to salary history. Interview techniques should be revisited and reconsidered. Compensation ranges should be established, if they are not already. If compensation ranges are established, an analysis ensuring the ranges are appropriate is recommended.
2019 Standard Mileage Rates. The standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:
• 58 cents per mile for business miles driven (up 3.5 cents from the rate in 2018).
• 20 cents per mile driven for medical or moving purposes (up 2 cents from the rate in 2018).
• 14 cents per mile driven in service of charitable organizations (same as 2018).
Under California Labor Code section 2802, employers must fully reimburse employees for all expenses actually and necessarily incurred. Many employers typically choose to use the IRS mileage reimbursement rate, but its use is optional. The Division of Labor Standards Enforcement has stated that using the IRS mileage rate will generally satisfy an employer’s obligation to reimburse for business-related vehicle expenses, absent evidence to the contrary.However, if an employee can show that the chosen mileage reimbursement rate, even the IRS rate, does not cover all actual expenses the employee has incurred, the employer must pay the difference. Business vehicle expenses do not include only gasoline, but also wear and tear (depreciation), repairs, oil, insurance and other costs.
Recommendation: Update your travel policy to reflect the new changes, and implement the new mileage rates in your expense reports calculations.
Lactation Accommodation (AB 1976). Beginning January 1, 2019, employers will be required to provide a location other than a “bathroom” and rather than a toilet stall. As a result, employers will not be able to assign a bathroom as a designated space for employees to express breast milk.
Recommendation: Review current lactation policy in the company employee handbook and update to reflect the new changes. Assess current lactation location and determine whether or not it is compliant with AB 1976 requirements; make any necessary changes.
Defamation Protection (AB 2770). Employers and victims of sexual harassment will be protected from liability for defamation lawsuits for injury to an alleged harasser’s reputation after a complaint of sexual harassment has been made.
• An employee who makes credible reports of harassment will be shielded from liability, as will an employer who communicates with interested parties such as victims and witnesses.
• When contacted for a job reference about a current or former employee, an employer will now be permitted to reveal whether the individual is not eligible for rehire because the employer determined that he/she engaged in sexual harassment.
Recommendation: Review current sexual harassment policy and include the protection from liability for defamation verbiage. Update company policy on providing job references as needed.
Confidentiality Clauses in Settlement Agreements (SB 820). Under existing law, employers have been free to enter into settlement agreements containing non-disclosure provisions that prevent parties from discussing not only the amount of a settlement being paid but also the factual foundation surrounding claims of workplace sexual harassment.
SB 820 prohibits public and private employers from entering into settlement agreements that prevent the disclosure of information regarding:
• acts of sexual assault;
• acts of sexual harassment;
• acts of workplace sexual harassment;
• acts of workplace sex discrimination;
• the failure to prevent acts of workplace sexual harassment or sex discrimination; and
• retaliation against a person for reporting sexual harassment or sex discrimination.
Recommendation: Review current contracts and agreements to ensure there is no prohibitive statements with regard to claims of sexual harassment, assault or discrimination.
Copies of Payroll Records (SB1252). Existing law allows employees to “inspect or copy” their payroll records. SB 1252 merely makes clarifying changes designed to ensure that employers make and provide the copies, and don’t require employees to find ways to make the copies themselves.
Recommendation: Review and update payroll records policy as appropriate.
But wait! There’s more… If you call us by February 1st for a handbook revision, we will offer you a 10% discount for your resolution and commitment to the new laws and your business acumen in the new year.
Call us at 888-220-9286 or email firstname.lastname@example.org to set up a time to talk to a HR Consultant about how these changes affect your business in the upcoming year, or any other HR or Recruiting needs.
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