Partner Joseph Ortiz Discusses Changes in the Southern California Newspaper Group
For California employers, 2020 brings sweeping changes to equalize the workplace.
This playbook of new employment laws — aimed at shrinking the state’s mounting pay disparities, giving employees more power in the workplace and extending protections against racial discrimination — went into effect Jan. 1. Businesses should move swiftly to update policies and practices to reflect the new laws.
Expanded leaves, accommodations & other protections
- Expanding on existing laws granting women adequate time and private spaces to pump breastmilk, lawmakers laid out guidelines for accommodations in Senate Bill 142, including requiring spaces to be intrusion free, clean and void of hazards and with access to electricity, a place to sit, a sink and a refrigerator or cooler.
- While employers were already required to provide organ donors with 30 days of paid leave, under Assembly Bill 1223, they must make an additional 30 days of unpaid leave available in any 1-year period.
- Victims of workplace discrimination, retaliation and harassment will have two more years after the date of a violation to file an employment-related administrative complaint before the California Department of Fair Employment and Housing, a step necessary before filing a lawsuit in Superior Court under the California Fair Housing and Employment Act. Before AB 9, there was a one-year limitation.
- Lawmakers expanded the state’s definition of a “domestic partner” beyond its previous requirement that a domestic couple be either same-sex or older than 62. SB 30 removed these limits.
- Further expanding definitions to protect employee rights, SB 188 (dubbed the Crown Act) added “hair texture and protective hairstyles” to FEHA’s definition of “race.” With its passage, California now considers prohibitions against protective hairstyles as indicative of racial discrimination.
No AB 5 grace period
AB 5, the controversial law reclassifying gig-economy and traditional contract workers as employees entitled to benefits and workplace protections, will force public and private employers to re-evaluate their relationships with such independent workers.
While certain carve-outs exist, AB 5 codified a California Supreme Court decision in Dynamex Operations West Inc. v. Superior Court of Los Angeles that established the rigid, three-part “ABC” test for determining whether a worker is an employee or independent contractor. Under the test, a worker is presumed an employee, unless the hiring entity can show the contractor:
(a) is free from the entity’s control and direction,
(b) performs work outside the entity’s usual course of business and
(c) is customarily engaged in an independent trade.
Wages, labor powers increase
The state’s minimum wage inched closer to its $15-an-hour goal, increasing to $13 hourly for businesses with 26 or more employees. Smaller businesses saw the hourly minimum wage rise to $12.
California also raised its overtime-pay standards for exempt executive, administrative and professional workers to a threshold of $54,080 annually for employees at businesses with more than 26 employees — outpacing the federal threshold of $35,568 a year that the U.S. Department of Labor set in September.
Arbitration agreements, rehire clauses
Aimed to ensure employees, applicants and independent contractors enter contracts voluntarily and without coercion, AB 51 adds greater restrictions to employment-based arbitration agreements.
Employers are now prohibited from requiring employees to waive any right, forum or procedure established by FEHA or the Labor Code. Therefore, employers will be prohibited from mandating such arbitration agreements. The law does not, however, invalidate arbitration agreements governed by the Federal Arbitration Act.
Additionally, under AB 749, employers will need to review their standard settlement agreements to remove provisions that preclude an employee from being rehired by the employer or obtaining employment with an affiliate.
This article first appeared in The Press-Enterprise and other Southern California Newspaper Group publications online on Jan. 24 2020. Republished with permission.
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