There are numerous articles and seminars going over the hundreds of new California laws. The amount of changes business and employers are facing is downright overwhelming. However, there are a few achievable goals Employers can take now to start off the new year.
- Update Your Forms on New Posting Requirements on Parental Leave
The FMLA certification forms are new for 2020 and contain gender neutral pronouns. Employers should discard older forms and pamphlets and use the updated 2020 forms.
The New Parent Leave Act (NPLA) took effect in January 2018 and expanded the availability of baby-bonding benefits to smaller employers (those with at least 20 employees). As amended by the NPLA; the California Family Rights Act (CFRA) provides 12 weeks of unpaid job-protected leave for the birth, adoption, or foster care placement of an employee’s child if the employer has 20 or more employees. Under both the NPLA and the CFRA, employers must guarantee reinstatement to employees who avail themselves of this statutory benefit.
New posting requirements regarding the NPLA took effect as of April 1, 2019. Employers with 20-49 employees now have to post information on the available baby-bonding benefits, and employers with 50 or more employees have to update their previous postings. The new required postings primarily address the addition of the NPLA in the CFRA’s definition section, and the removal of gender-specific pronouns and references in the CFRA’s Certification of Health Care Provider form.
The posters must be displayed prominently where employees and applicants for employment can easily see them. If 10 percent or more of the workforce speaks a language other than English, a version must also be posted in that language. The Department of Fair Employment and Housing provides translated posters. Some employers choose to display an “all-in-one” poster purchased from a Chamber of Commerce, or other private organization. Employers may also need to update handbooks and train human resources personnel on the new leave policies and updated medical certification form. Employers with 20 or more employees should ensure their postings, handbooks, and trainings are up to date with the new requirements for baby-bonding leave to ensure compliance with the NPLA.
- Review Arbitration Policies Due to New Law Excluding of Mandatory Arbitration Agreements at Outset of Employment
AB 51 prohibits employers from requiring employees to enter into arbitration agreements covering claims under the Fair Employment and Housing Act (FEHA) and the Labor Code as a condition of employment. The bill will be codified as a new section 432.6 in the California Labor Code, and it prohibits any person from requiring an applicant or employee to "waive any right, forum, or procedure" for a violation of the FEHA or the Labor Code, which includes the right to file a civil complaint in court or a complaint with government agency. It makes a violation of Labor Code section 432.6 an "unlawful employment practice" under the FEHA, and also prohibits employers from retaliating against an applicant or employee who refuses to agree to an arbitration agreement. However, AB 51 does not apply to "post-dispute settlement agreements or negotiated severance agreements." Further, it applies to agreements "entered into, modified, or extended on or after January 1, 2020."
Employer groups have already challenged AB 51 in federal court on the basis that it is preempted by the Federal Arbitration Act (FAA). The drafters of AB 51, anticipating a legal challenge, have attempted to address this by including subsection (f) which states, "nothing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the [FAA]."
Employers may still have a valid arbitration agreement, but the wording of the agreement must be narrowly tailored to meet the exclusions allowed for in the law. This is a watch item for Employers using arbitration clauses as it will likely be refined throughout 2020.
- Review Your Dress Code Policies to Comply with the Crown Act.
On July 3, 2019, California became one of the first states to ban race-based hair discrimination by enacting SB 188, also known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act. The CROWN Act expands the definition of “race” under the California Fair Employment and Housing Act (FEHA) to include traits historically associated with race, such as hair texture and protective hairstyles. “Protective hairstyles” include, but are not limited to, “braids, locks, and twists.” The new law goes into effect on January 1, 2020.
The CROWN Act acknowledges the disparate impact workplace dress code and grooming policies potentially could have on black individuals. Policies that prohibit natural hair, including afros, braids, twists, and locks, are more likely to deter black applicants and burden or punish black employees than any other group. The stated purpose of the CROWN Act is thus to enforce the “constitutional values of fairness, equity, and opportunity for all.”
Employers should review their dress codes, grooming policies, and general hiring and employment practices to ensure compliance with the new law. Employers operating nationally should monitor legislative developments—New York has enacted a similar law forbidding race-based hair discrimination, and New Jersey, Michigan, Wisconsin, Illinois, and Kentucky are also considering such legislation.
- Review Your Lactation Accommodations to Ensure Proper Notice, Timing and Location are Provided
The law currently prohibits an employer from limiting an employee’s break to a mere 10 minutes if they need to express breast milk – meaning you need to give the employee a longer break twice a day. The law will now require that Employer’s provide a "reasonable amount of break time" to express breast milk "each time the employee has a need to express milk." This means an employee may be entitled to multiple – not just two – extended breaks. The new law also requires a lactation room or location that is not a lobby, it must be private and not a bathroom. In addition it must also have seating, be in close proximity to the work area, with access to electricity. If an employer doesn’t have a space that meets those requirements, consider renting a temporary pod that will meet the requirements.
Finally, Labor Code section 1034 has been amended to require an employer to develop and implement a policy regarding lactation accommodation that includes the following a statement about an employee’s right to request lactation accommodation, how to make the request, and the employer’s obligation to respond. The employer shall include the policy in an employee handbook or set of policies that the employer makes available to employees. The employer shall distribute the policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave. If an employer cannot provide break time or a location that complies with the policy, the employer shall provide a written response to the employee.
The expansion of these Labor Code sections creates significant potential liability for employers who fail to provide "reasonable breaks" "each time" the employee "has a need to express milk" including missed meal period premiums. Therefore, it is important that employers create a paper trail and have lactating employee’s sign off that they are getting the necessary breaks.
- Review Policy on No Rehire
California employers need to review their standard settlement agreements to remove any "no-rehire" provisions. Under the new law, which goes into effect on January 1, 2020, settlement agreements cannot contain any provision that prohibits, prevents, or otherwise restricts an employee from obtaining future employment with that employer or its parent companies, subsidiaries, divisions, affiliates, or contractors. Any such provisions found in settlement agreements entered into on or after January 1, 2020 are void as a matter of law and against California public policy.
The prohibition only applies to agreements with an “aggrieved person,” which is defined as a person who has “filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.” As a result, employers and employees remain free to enter into severance agreements with terminated employees that contain no-rehire provisions. However, any severance or agreement resolving an employment dispute would be implicated by AB 749. The new law also clarifies that it does not require employers to rehire employees where (1) the employer has made a “good faith determination” that the employee engaged in sexual harassment or sexual assault, or (2) the employer has a legitimate non-discriminatory or non-retaliatory reason for refusing to rehire the person. The new statute, however, does not define what constitutes a “good faith determination.”
Christine H. Long is Partner, and Department Chair at Berliner Cohen, LLP. She maintains a diverse litigation practice in employment, hospitality, business litigation, and real estate. Ms. Long is the Chair of the Employment Law Practice Group and Hospitality Practice Group.
For questions on how these Law and Ordinances affect your work place contact Christine Long, Partner at Berliner Cohen at 408.286.5800 or by email at Christine.Long@berliner.com.
.