Seyfarth Synopsis: Governor Newsom has approved some of the bills most feared by employers, including bills to ban employment arbitration, extend FEHA administrative deadlines, codify the Dynamex ABC test, and create San Francisco-style lactation-accommodation requirements. Governor Newsom also vetoed a few bills that we might expect to be re-introduced in the same or similar form during 2020.

Governor Newsom acted before the stroke of midnight and under a full moon on his October 13 deadline to veto or approve bills passed during the first year of the 2019-2020 Legislative Session. Unfortunately for employers, he did not yield his veto pen as effectively as Governor Brown once did. Instead, Governor Newsom approved most of the bills feared by employers.

The parade of horribles for California employers is set to begin on January 1, 2020. Will a new moon bring constitutional challenges to the notorious AB 51? Will amendments during 2020 somehow make the new laws more palatable? Meanwhile, we summarize the new laws below—from the truly frightening to the merely annoying, with one or two examples of laws that arguably are welcome. Thereafter, we summarize bills that, while not making the cut this year, may come back to life next year. All new laws are effective January 1, 2020, unless otherwise noted.

APPROVED

Arbitration Prohibition. For agreements entered into, modified, or extended on or after January 1, 2020, AB 51 will prohibit any business from requiring that a job applicant or employee waive any right, forum, or procedure for a violation of the FEHA or Labor Code, including any requirement that an individual “opt out” or take affirmative action to preserve such rights. AB 51 will make actionable any threatened or actual retaliation against an individual who refuses to consent to the forbidden requirements. AB 51 will authorize injunctive relief and attorney’s fees to any plaintiff who proves a violation. These provisions of AB 51 are very similar to part of last year’s AB 3080, which was vetoed due to its likely preemption by the Federal Arbitration Act, and this bill includes a severability clause in an attempt to avoid preemption. This attempt is arguably illusory, and will likely find itself challenged as another unconstitutional attempt by the California Legislature to forbid arbitration agreements. As the result of some unclear drafting, and although the author of the bill has claimed to the contrary, AB 51 may call into question the use of traditional settlement and severance agreements.  Read our discussion of AB 51’s scary implications here.

Settlement Agreements Future Employment Restraints. AB 749 will prohibit settlement agreements that restrict an employee right to seek employment with the employer with whom the employee is settling a claim.

Independent Contractors Worker Status. AB 5 codifies the California Supreme Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court, while also specifying some heavily-lobbied-for exemptions. See our in-depth analysis of it here and here. Governor Newsom signed the bill into law on Wednesday, September 18, 2019.

Independent Contractors Worker Status. AB 170 slides another exemption into AB 5, via a separate bill, for a newspaper distributor working under contract with a newspaper publisher and a newspaper carrier working under contract with either a newspaper publisher or distributor, until January 1, 2021.

Arbitration Agreement Fees/Costs. SB 707 will require an employer or drafter of an arbitration agreement to pay the costs and fees associated with the arbitration. Failure to pay the fees could constitute material breach of the arbitration agreement, or the employee could withdraw the claim from arbitration, or be entitled to attorney’s fees and costs. The bill will also require a private arbitration company to collect and report aggregate demographic data regarding the ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators.

Lactation Accommodation. Borrowing from provisions of a San Francisco lactation ordinance, SB 142 will expand California lactation-accommodation law by requiring employers to provide a lactation room for employees that meets the following requirements: not a bathroom; in close proximity to the employee’s work area; shielded from view; free from intrusion while the employee is lactating; safe, clean, and free of hazardous materials; containing a surface to place a breast pump and personal items; containing a place to sit; with access to electricity or alternative devices (e.g., extension cords, charging stations) that may be needed to operate an electric or battery-powered breast pump; and with access to a sink with running water and a refrigerator suitable for storing milk. If a multipurpose room is used for lactation and other uses, lactation must take precedence over the other uses.

The bill will make a denial of lactation break time or space a violation under rest period laws, and subject the employer to a $100 penalty per violation. The bill contains an anti-retaliation provision and will also require an employer to develop and implement a policy regarding any lactation accommodations, and make it readily available to employees. This inordinately comprehensive bill is a repeat of SB 937 (2018), which Governor Brown vetoed given his approval of a less onerous lactation accommodation law, AB 1976. The new law has an undue hardship exemption for employers with fewer than 50 employees.

Penalties for Failure to Pay Wages. AB 673 will authorize an employee to pursue a private right of action to recover penalties for the late payment of wages through the Private Attorneys General Act, and will remove the authority for the Labor Commissioner to recover civil penalties in an independent civil action. The bill will prohibit the employee from also recovering statutory penalties for the same violation.

FEHA Administrative Exhaustion Extension. A repeat of 2018’s AB 1870, vetoed by Governor Brown, AB 9 will extend the period within which an aggrieved person may file a complaint with the DFEH from one year to three years.  (It does not revive lapsed claims.)

Labor Commissioner Citations. SB 229 will expand the appeal and enforcement mechanisms available when the Labor Commissioner cites an employer for violating the Labor Code’s anti-retaliation provisions. The bill will establish procedures and deadlines to follow when adjudicating or contesting a citation. SB 688 will expand the Labor Commissioner’s citation authority to include citations for failures to pay contract wages when the employer had paid an employee below minimum wage.

Organ Donation Leave of Absence. AB 1223 will require employers to grant an employee an unpaid leave of absence—in addition to the existing one-year paid leave—for the purpose of organ donation. The bill will require a public (not private) employee to first exhaust all available sick leave before taking the unpaid leave.

Sexual Harassment Training. As we reported, SB 778 extends the deadline for non-supervisory employee training from January 1, 2020 until January 1, 2021 and confirms—in a much needed clarification—that those supervisors who received 2018 training need not be trained again until 2020.

Hairstyle Discrimination. SB 188, the Crown Act, expands the FEHA’s definition of race to include traits historically associated with race, such as hair texture and “protective hairstyle” (e.g., braids, locks, and twists). The bill aims to chip away at “Eurocentric” professional norms by addressing “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks.” The Legislature has concluded that these policies “have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

Reporting Occupational Injuries and Illnesses. AB 1804 will require employers to report serious workplace injuries, illnesses, or death immediately by telephone or through an online platform to be developed by the Division of Occupational Safety and Health. Until the online platform is available, employers are permitted to make these reports by telephone or email. Noncompliance carries a $5,000 civil penalty.

Civil Action Damages: Gender, Race Ethnicity. SB 41 aims to narrow the consequences of observed differences in the pay of groups defined by gender or ethnicity. This bill will apply to personal injury and wrongful death cases, and will forbid any reduction in damages resulting from an estimation, measure, or calculation or past, present, or future damages for lost or impaired earning capacity that is based on a person’s race, ethnicity, or gender.

Paid Family Leave Expansion & Task Force. Under SB 83, beginning July 1, 2020, the California Paid Family Leave benefit will be eight weeks instead of six weeks, paralleling an increase in San Francisco’s Paid Parental Leave benefit. The bill requires the Governor’s Office to convene a task force to develop a proposal by November 2019 to extend the duration of paid family leave benefits to six months by 2021-22 for parents to care for, and bond with, their newborn or newly adopted child. The November 2019 proposal will also address job protections for workers and the goal of providing a 90 percent wage replacement rate for low-wage workers utilizing the Paid Family Leave program to bond with a child. Approved by Governor Newsom on June 27, 2019, the bill became effective immediately.

Workplace and School Gun Violence Restraining Orders. Beginning September 1, 2020, AB 61 will authorize an employer, or a coworker who has had substantial and regular interactions and approval of their employer, to file a petition for an ex parte, one-year, or renewed gun violence restraining order.

Industry-Specific Laws

Collegiate Athlete Compensation. AB 1518 will allow student athletes to contract with agents without losing their student athlete status—provided the contract complies with the student’s educational institution’s requirements and the bylaws of the NCAA—and to receive compensation. The Fair Pay to Play Act, SB 206, will among other things, beginning January 1, 2023, allow student athletes to more easily earn compensation from endorsements. While LeBron James and Draymond Green have praised the bill, the NCAA has strongly opposed it, stating in a letter to the Governor that it has the potential to kill amateur athletics and “erase the critical distinction between college and professional athletics.”

Employment of Infants in the Entertainment Industry. AB 267 will expand the definition of “entertainment industry” beyond a movie set or location to include motion pictures, theater, television, photography, recording, modeling, rodeos, circuses, advertising, and any other performance to the public. The bill will require that all qualifying entities receive—as a prerequisite to employment of an infant under one month of age—a licensed, board-certified pediatrician’s certification that the infant is at least 15 days old, was carried to full term, was of normal birth weight, is physically capable of handling the stress of working in the entertainment industry, and has sufficiently developed lungs, eyes, heart, and immune system to withstand the potential risks.

Employment of Motion Picture Production Workers. SB 271 will allow temporary or transitory employment performed outside of California to count towards unemployment benefits as long as the individual is a California resident, is hired and dispatched from the state, and intends to return to the state to seek reemployment following the outside-California work.

Payment of Wages for Print Shoot Employees. SB 671, the “Photoshoot Pay Easement Act,” authorizes payment of wages to “print shoot employees”—defined as individuals hired for a limited duration to render services relating to or supporting a still-image shoot for use in print, digital, or internet media—on the next regular payday after the employment ends, rather than subjecting the employer to liability for failure to pay final wages on the last day of employment. In another break for employers, the final wages can be mailed to the employee or made available to the employee at a location specified by the employer in the county where the employee was hired or performed labor and the payment is deemed to have been made on the date of mailing or being made available to the employee at the specified location. The bill thus creates an exception mirroring the one existing for motion picture employees. The bill’s urgency clause—making it effective immediately upon its September 5, 2019 signing—highlights what a relief its passage will be to businesses that use short-term models and that have faced legal actions threatening sometimes huge potential liability under the prior law.

Sexual Violence and Harassment Prevention Training for Janitorial Workers. AB 547, the Janitor Survivor Empowerment Act, will require the Director of the Department of Industrial Relations to organize a training advisory committee that will generate a list of qualified organizations and trainers that janitorial employers would be required to use to provide biennial, in-person sexual violence and harassment prevention training for janitorial workers. This requirement is in addition to the Property Service Workers Protection Act that kicks in on January 1, 2020, which we previously covered here.

Occupational Safety and Health for Valley Fever. AB 203 will require construction employers operating in counties where Valley Fever—a microscopic fungus which lives in the top few inches of the soil in many parts of California—is “highly endemic,” to provide effective training on the disease to employees annually and before an employee is anticipated to cause substantial dust disturbance.

Continuing Education: Implicit Bias in the Medical Field. AB 241 will require, by January 1, 2022, that continued education for physicians, surgeons, nurses and physician assistants include courses on implicit bias. The bill will require the Board of Registered Nursing and the Physician Assistant Board to adopt regulations requiring implicit bias training by January 1, 2022.

California Family Rights Act: Flight Crews. AB 1748 amends the California Family Rights Act to conform flight deck and cabin crewmember eligibility requirements with the federal Family and Medical Leave Act, which has special hours of eligibility for airline flight attendants and other cabin crew. Flight attendants are eligible for FMLA if, during the previous 12 months, they have worked at least 504 hours and have been paid at least 60% of the monthly guarantee, which means that they worked 60% of the minimum number of hours which the employer scheduled the employee for any given month.

Sexual Harassment Training: Construction and Temporary Employees. SB 530 will extend the date by when seasonal, temporary, or other employees that are hired to work for less than six months must begin receiving mandatory sexual harassment training to January 1, 2021, and incorporate special training provisions for construction industry employers that employ workers pursuant to a multiemployer collective bargaining agreement.

VETOED

Sexual Harassment Retaliation Protection. Very similar to AB 3081 (2018), AB 171 would have amended the Labor Code to add sexual harassment to the prohibitions on an employer from discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking. The bill would have also created a rebuttable presumption of retaliation if the employer takes an adverse action against the employee within 90 days of notice of the employee’s status as a victim. In vetoing the bill, Governor Newsom wrote that while he supports the “Legislature’s efforts to strengthen workplace protections for all survivors of harassment and abuse,” he thought this bill would create “a standard for a particular form of sex-based discrimination different from applicable standards for other forms of discrimination that could weaken, rather than strengthen, existing worker protections.” He correctly recognized that incorporating sexual harassment into the Labor Code “duplicates, and in some crucial respects, weakens existing law” under the FEHA, which already provides a protections and remedies sought through this bill, and this bill could create overlapping claims with the DFEH and the Labor Commission, which “could create confusion and potentially limit workers’ rights.”  He concluded by encouraging the Legislature and DFEH to work together to “evaluate if and how the FEHA can be enhanced to better protect survivors of sexual harassment against unlawful employment practices.”

Division of Labor Standards Enforcement for Complaints. AB 403 would have extended the statute of limitations for complaints alleging workplace retaliation from six months to two years, and would authorize attorney fees to any employee who successfully sues for retaliation based on whistleblowing. In vetoing the bill, the Governor acknowledged the Legislature’s other anti-retaliation measures, which provided greater authority to the Labor Commissioner, as recognition that action by the Labor Commissioner is likely more effective than extending a statute of limitations period past one year.

Unfair Immigration-Related Practices. AB 589 would have imposed penalties on an employer that withholds an employee’s immigration-related documents and would create a Worker’s Bill of Rights concerning the employee’s freedom of movement and the payment of wages. The Governor wrote that the bill’s “requirement that every employer in the state provide each employee with an enumerated list of rights” attracted his veto, as “overly burdensome for law-abiding employers” and because it “may not actually help workers who are the targets of trafficking.”  He did cite the bill’s provision that would levy a hefty fine on employers who engage in document abuse to commit trafficking as a “step in the right direction.”

Leave Rights: Private Cause of Action. AB 1478 would have amended Labor Code section 230 to authorize a private right of action (as an alternative to the existing remedy of filing a complaint with the Labor Commissioner) by an employee who takes time off for jury duty, for legal proceedings relating to being a victim of a crime, and for retaliation for being a victim of domestic violence, sexual assault, or stalking. The bill would also have made the same changes to Section 230 as AB 171 (discussed above) if AB 171 is approved and AB 1478 is approved after AB 171 (to ensure that AB 171’s provisions also become law).  The Governor vetoed AB 1478 as “unnecessary” because current law already authorizes “survivors of domestic violence, sexual assault or stalking” “to file a retaliation claim through the [Labor Commissioner’s] Office or through a PAGA action, and to see reinstatement and reimbursement for lost wages and benefits.”

Local Government Enforcement of FEHA. SB 218 would have amended the FEHA to allow local governments within the County of Los Angeles to enact and enforce their own antidiscrimination laws that are at least as protective as the FEHA, removing these claims from the sole jurisdiction of the DFEH. In vetoing the bill, the Governor cited other bills he approved as evidence of his commitment to eradicating discrimination, but noted he does not support this bill’s effort to lift a decades-long preemption which could create confusion, inconsistent enforcement of the law, and increased costs, without increased worker protections, and ambiguity regarding local governments’ ability to enforce both local ordinances and the FEHA.  He invited the Legislature to try again “with a measure that makes it clear that local enforcement measures are exclusively focused on local ordinances.”

Call Center Protections. AB 1677 would have required any employer with a call center currently in the state intending to relocate the call center to notify the Labor Commissioner at least 120 days before the relocation or face a civil penalty. In his veto message, the Governor noted that while he supports efforts to protect jobs in the state, but this bill might have the opposite effect – “dissuad[ing] businesses that have no intention of moving operations from making any further investments in California.”

Workplace Solutions

Please do not hesitate to reach out to your favorite Seyfarth counselors to discuss how to approach these new developments for your company.

Edited by Elizabeth Levy

Seyfarth Synopsis. On Thursday, September 5, 2019, the Legislature passed AB 51. This bill would ban mandatory arbitration agreements with respect to claims under the Labor Code and the Fair Employment and Housing Act while simultaneously disclaiming any intent to invalidate any agreement protected by the Federal Arbitration Act. Is this bill California’s latest clever—but predictably unsuccessful—effort to discriminate against arbitration agreements, in violation of federal law?

The Peaceful Prelude

Under current law, California employers can insist that employees agree to resolve disputes through a neutral arbitrator instead of a judge and jury, and also waive participation in class actions. Because public policy favors arbitration, courts have rejected wrongful termination claims by employees fired for refusing to sign arbitration agreements. The FAA, meanwhile, declares that states must enforce arbitration agreements to the same extent that they enforce contracts generally. Federal law, which thus protects arbitration agreements from discrimination, preempts any state law that is hostile to arbitration.

The Rising

Yet California continues to resist. Its public officials are recidivists when it comes to making unconstitutional attacks on arbitration agreements. On no fewer than five occasions the United States Supreme Court, invoking the U.S. Constitution’s Supremacy Clause, has struck down California statutes or judicial decisions that have discriminated against arbitration agreements.

Last legislative session saw the passage of Assembly Bill 3080, which we characterized here as a quixotic attempt to invalidate arbitration agreements that the FAA protects. AB 3080 sought to forbid businesses to impose arbitration agreements on employees or independent contractors, even where those individuals could opt out of the agreement. And AB 3080 had a strong bite: it would have authorized FEHA lawsuits against businesses that require arbitration agreements, and would have added a Labor Code provision that subjects violators to criminal prosecution.

Governor Brown, in his veto message, spoke of AB 3080 as if it were a dead man walking, doomed for FAA preemption: “This bill is based on a theory that the [FAA] 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.”

Haven’t We Seen This Movie Before?

Yet, like zombies who refuse to stay dead, efforts to ban arbitration agreements continue to rise, in different forms. The latest incarnation is AB 51, passed September 5, 2019, and now awaiting Governor Newsom’s approval or veto. AB 51 would create a new Labor Code provision (section 432.6), the violation of which would be a crime and also actionable as an unlawful employment practice under the FEHA. AB 51 obviously aims to gut arbitration agreements: it forbids employers to require employees or job applicants to “waive any right, forum, or procedure for a violation” of the FEHA or the Labor Code—and that, of course, is just what arbitration agreements do.

But how could this attack on arbitration agreements be compatible with the FAA? AB 51 cleverly proclaims: “Nothing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act … .” Yet this assurance rings hollow. The promise not to invalidate any agreement would still permit opponents of an arbitration agreement to challenge its formation, on such grounds as a lack of true consent.

If you think this distinction is too clever by half, then read the Senate Judiciary Committee report on AB 51. The report admits that AB 51, “if enacted, … would be challenged in court and there is some chance … that it would be found preempted,” yet AB 51’s proponents still argue that it “does not conflict with the FAA and thereby avoids preemption.” How is that? The proponents say two main things: (1) “AB 51 simply gives the worker the option of whether or not to form the contract in the first place.” (2) “[N]othing in AB 51 selectively calls out arbitration contracts as such; the bill applies to contracts requiring waiver of any forum.”

Do these defenses of AB 51 stand up? Consider this. First, the notion that AB 51 simply gives employees a choice runs counter to the reality that courts enforce contracts presented on a take-it-or-leave-it basis, so long as they are not unreasonably one-sided, and arbitration agreements can meet that test. Accordingly, courts invoke the FAA to protect arbitration agreements imposed as a condition of employment, regardless of whether the agreements are called “mandatory” or “voluntary.”

Second, the FAA preempts any state law that “stands as an obstacle” to enforcing arbitration agreements. (This rationale inspired the Supreme Court to foil California’s attempt to ban class-action waivers in arbitration agreements.) AB 51 would create an enormous obstacle. It would threaten to turn employers into criminals—and to subject them to oppressive discrimination lawsuits—merely for making arbitration a condition of employment. How could creating that in terrorem effect for employers not create an obstacle? Why should employers be required to risk criminal sanctions or a lawsuit, or both, if they want to insist that employees agree to a form of dispute resolution that can be fair while also being cheaper and quicker than formal litigation?

What Happens Next?

Last year, Governor Brown heard the concerns of the employer community and rebuffed the pleas of plaintiffs’ lawyers. His veto killed AB 3080. AB 51 is its reanimated corpse. Will Governor Newsom now assign AB 51 to its condign fate, or allow it to roam among the living? He has until October 13 to decide whether an undead law will be haunting employers this Halloween.

Post-publication update. After we went to press, Governor Newsom signed AB 51 into law. We will now see if Governor Brown was right in predicting that such a law will not withstand constitutional scrutiny.

Workplace Solutions

Note one treat buried among AB 51’s tricks: even if signed by the Governor, it would not go live till January 1, 2020, so any arbitration program an employer might have in mind now can safely be in place by then. Meanwhile, look out for employer groups to mount legal challenges that will seek to have the new law declared unconstitutional before it wreaks too much havoc.

Also note that AB 51 is not confined to arbitration agreements. Among its other horrors are vague provisions that draw into question the use of traditional severance agreements. These are subjects for another blog.

Edited by Christopher J. Truxler

Seyfarth Synopsis: California Labor Code § 221 states it is “unlawful for any employer to collect or receive from an employee any part of wages … paid … to said employee.” In other words, employers cannot just take money back to correct an overpayment of wages. But what if you discover you’ve accidentally overpaid an employee?

It’s not a back to school special—it’s a windfall (and a shopping trip)! No, actually, it is an employer overpayment of an employee’s wages. It happens and unfortunately, enough employers have gone about recovering overpayments the wrong way, leaving a trail of court cases and waiting-time penalties.

So, as an employer, can you recover an overpayment of wages to an employee? The answer is a resounding … maybe!

Get Into the Black Friday: Can I Deduct the Overpayment from the Regular Paycheck?

No. Employers often run afoul of California law when they automatically deduct wages from an employee’s paycheck or final pay to recover an overpayment of wages. Even if an employee orally agrees that the employer can withhold an overpayment—either as a lump sum deducted from the next paycheck or in installments deducted from several paychecks—the employer may be violating the law. It is highly recommended to get any repayment agreement in a writing signed by both the employee and employer.

Try to Strike A Deal

When an employer discovers an overpayment of wages, it is best to first approach the employee and explain it. Perhaps the employee has not noticed the overpayment and is agreeable to writing a check to return the overpayment. More often, employees will find it more convenient to make good on overpayments over time, and often through payroll deductions. This practice is acceptable so long as the agreement is in writing, is voluntary, and is signed by the employee. Also, if an employee leaves the company with remaining repayment installments, the employer cannot deduct the remaining balance from an employee’s final pay, absent a fresh written agreement. See Barnhill v. Sanders, 125 Cal. App. 3d 1 (1981).

Outstanding amounts owed by an employee at separation can be difficult to recover and may require the employer to file in court. Many amounts can be recovered through small claims court but amounts over $10,000 must be recovered in Superior Court. Court actions to recover overpaid wages may be cost prohibitive, but an employer successful in court can obtain a judgment and garnish the employee’s wages (from the next employer) to recover the overpayment.

Watch Out for Minimum Wage!

When you enter into a recovery agreement with an employee for an overpayment, be careful that any payment does not result in the employee’s wages dipping below minimum wage for that pay period.

Unlawful Deductions Can Lead to More Free Money!

If an employer makes an unlawful deduction from an employee’s paycheck to recover a wage overpayment, the aggrieved employee can file a wage claim with the DLSE or file a lawsuit. A finding against an employer could expose the employer to penalties and the employee’s attorney’s fees. Employees may also succeed in retaliation claims if they are discharged or suffer other adverse employment action for filing a claim with the DLSE or for complaining about an unlawful deduction.

What if an Employee Refuses to Repay the Overpayment?

Employees who defy their obligation to repay overpayments can be discharged, absent special circumstances. And if an employee is exhibiting dishonesty by refusing to repay money obtained in a windfall, then even the EDD may think twice, and deny unemployment benefits.

Workplace Solutions

  • Develop a written policy in your Handbook to address procedures for overpayment of wages.
  • Review the remedies for overpayment to employees with your payroll personnel.
  • Be mindful of finding a repayment option that will not cause financial hardship for the employee.
  • When in need, contact your favorite Seyfarth lawyer to draft a repayment agreement for you.

Edited by Christopher J. Truxler

Seyfarth Synopsis: The United States Department of Labor (DOL) released its final overtime rule on Tuesday, September 24, 2019, increasing the minimum salary level for exempt status to $35,568 per year for a full-time employee under the federal Fair Labor Standards Act (FLSA) effective January 1, 2020. But California employers must meet higher minimum salary requirements and other nuances that employers subject only to the FLSA need not.

Game On!

On Tuesday, the DOL released its final overtime rule, increasing the minimum salary threshold for exemption from overtime under the FLSA to $35,568 per year. According to the DOL, an estimated 1.3 million American workers currently classified as exempt under the FLSA must begin receiving overtime pay based on current pay rates. Thus, employers should take stock of the potentially newly eligible receivers on their roster to be prepared for the blitz: the final rule is effective January 1, 2020.

The final rule also allows employers to include annual nondiscretionary bonuses, incentives, and commissions to meet up to 10% of an employee’s minimum salary level for exempt status. If an employee’s nondiscretionary bonus or incentive payments in a particular 52 week period are too low, the new rule permits a “catch-up” payment within one pay period of the end of the 52-week period to maintain exempt status. Talk about 4th and inches!

The final rule says that:

  • The standard salary level from the currently enforced level will be raised from $455 to $684 per week (amounting to $35,568/year for a full-year employee)
  • The total annual compensation level for highly compensated employees to be considered exempt will be raised from $100,000 to $107,432
  • Employers may use nondiscretionary bonuses and incentive payments to meet salary exempt levels, including commissions, in recognition of evolving pay practices, so long as employees are paid at least annually to satisfy up to 10% of the standard level
  • The special salary levels for employees in the U.S. territories and in the motion picture industry are likewise increased

But California Employers Play By West Coast Offense

California employers must take heed, for the Golden State has its own rules for exempt status, and these new federal rules will not impact the California employer’s playbook.

As to minimum salary, California’s current minimum already is higher than the FLSA rate will be next year, and California’s minimum will continue to climb over the next few years as the state minimum wage rate incrementally rises to $15 per hour for all workers by 2023. And California does not subscribe to the new FLSA rule allowing employers to include 10% of nondiscretionary bonuses and incentive compensation to meet the minimum salary threshold.

Here is a helpful chart California employers should flag to stay between the hashmarks for the coming years on both federal and California salary exempt thresholds:

Year Federal                         California
Up to 25 employees 26+ employees
2019

$455/week

$23,660/year

$880/week

$45,760/year

$960/week

$49,920/year

2020

$684/week

$35,568/year

$960/week

$49,920/year

$1,040/week

$54,080/year

2021

$684/week

$35,568/year

$1,040/week

$54,080/year

$1,120/week

$58,240/year

2022

$684/week

$35,568/year

$1,120/week

$58,240/year

$1,200/week

$62,400/year

2023

$684/week

$35,568/year

$1,200/week

$62,400/year

$1,200/week

$62,400/year

Additionally, Left Coast employers beware—no salary caps here! Simply earning $107,432 or more per year does not get you to the end zone for exemption in California. Such high earners still must meet the substantive requirements for one of the California exemptions to be ineligible for overtime pay, as there is no highly compensated exemption out west.

We have previously blogged about many of the other substantive peculiarities with exemptions in the California here (creative exemption), here (executive exemption), and here (administrative exemption), and California employers must comply with all state exemption rules to avoid a fumble.

And What About Employees Who Cross The Line Of Scrimmage Into California?

If an employee who normally works outside of California and qualifies as exempt under federal law comes to California for work, but does not meet California’s exemption standards, a flag may be thrown. The employer likely must play by the California rules, including overtime pay requirements, for the period the employee works in California. While the California Supreme Court still is pondering the full extent of this issue, employers should exercise caution to minimize potential exposure to a California penalty for employees temporarily working in California.

Workplace Solutions

For more on the DOL final order, check out our One Minute Memo here. And if you have any questions about the potential applicability of California exemptions to your team members, don’t throw a Hail Mary—Seyfarth is here to help both your offense and defense.

Edited by Coby Turner

Seyfarth Synopsis: The California Legislature has passed a series of bills for Governor Newsom to consider. He now has until October 13 to approve or veto bills such as a Dynamex codification bill and a San Francisco-inspired lactation accommodation bill.

Friday, September 13th marked the Legislature’s last day to pass bills to Governor Newsom’s desk for approval in the first year of the 2019-2020 Legislative Session. The most notorious employment bill has been AB 5, the Dynamex codification (and exceptions) bill. A more stringent lactation accommodation bill has also made its way to the Governor’s desk, as have leave of absence, anti-arbitration, and various industry-specific bills. Bills that did not make the cut may resurface in January in the second part of the two-year session. Below are the most significant employment-related bills of 2019 that the Governor has already approved or that await his action by the October 13th deadline. All approved bills will be effective January 1, 2020, unless otherwise noted.

APPROVED

Independent Contractors Worker Status. The bill creating the greatest buzz has been AB 5, which would codify the California Supreme Court’s 2018 decision in Dynamex Operations West, Inc. v. Superior Court, while also specifying some heavily-lobbied-for exemptions. See our in-depth analysis of it here and here. Governor Newsom signed the bill into law on Wednesday, September 18, 2019.

Sexual Harassment Training. As we reported, SB 778 will extend the deadline for non-supervisory employee training from January 1, 2020 until January 1, 2021 and confirms—in a much needed clarification—that those supervisors who received 2018 training need not be trained again until 2020.

Hairstyle Discrimination. SB 188, the Crown Act, will expand the FEHA’s definition of race to include traits historically associated with race, such as hair texture and “protective hairstyle” (e.g., braids, locks, and twists). The bill aims to chip away at “Eurocentric” professional norms by addressing “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks.” The Legislature has concluded that these policies “have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

Collegiate Athlete Compensation. AB 1518 will allow student athletes to contract with agents without losing their student athlete status—provided the contract complies with the student’s educational institution’s requirements and the bylaws of the NCAA—and to receive compensation. The Fair Pay to Play Act, SB 206, which passed both houses unanimously and next awaits the Governor’s approval or veto, would, among other things, beginning January 1, 2023, allow student athletes to more easily earn compensation from endorsements. While LeBron James and Draymond Green have praised the bill, the NCAA has strongly opposed it, stating in a letter to the Governor that it has the potential to kill amateur athletics and “erase the critical distinction between college and professional athletics.”

Reporting Occupational Injuries and Illnesses. AB 1804 will require employers to report serious workplace injuries, illnesses, or death immediately by telephone or through an online platform to be developed by the Division of Occupational Safety and Health. Until the online platform is available, employers are permitted to make these reports by telephone or email. Noncompliance carriers a $5,000 civil penalty.

Employment of Infants in the Entertainment Industry. AB 267 will expand the definition of “entertainment industry” beyond a movie set or location to include motion pictures, theater, television, photography, recording, modeling, rodeos, circuses, advertising, and any other performance to the public. The bill will require that all qualifying entities receive—as a prerequisite to employment of an infant under one month of age—a licensed, board-certified pediatrician’s certification that the infant is at least 15 days old, was carried to full term, was of normal birth weight, is physically capable of handling the stress of working in the entertainment industry, and has sufficiently developed lungs, eyes, heart, and immune system to withstand the potential risks.

Employment of Motion Picture Production Workers. SB 271 will allow temporary or transitory employment performed outside of California to count towards unemployment benefits as long as the individual is a California resident, is hired and dispatched from the state, and intends to return to the state to seek reemployment following the outside-California work.

Payment of Wages for Print Shoot Employees. SB 671, the “Photoshoot Pay Easement Act,” authorizes payment of wages to “print shoot employees”—defined as individuals hired for a limited duration to render services relating to or supporting a still-image shoot for use in print, digital, or internet media—on the next regular payday after the employment ends, rather than subjecting the employer to liability for failure to pay final wages on the last day of employment. In another break for employers, the final wages can be mailed to the employee or made available to the employee at a location specified by the employer in the county where the employee was hired or performed labor and the payment is deemed to have been made on the date of mailing or being made available to the employee at the specified location. The bill thus creates an exception mirroring the one existing for motion picture employees. The bill’s urgency clause—making it effective immediately upon its September 5, 2019 signing—highlights what a relief its passage will be to businesses that use short-term models and that have faced legal actions threatening sometimes huge potential liability under the prior law.

Civil Action Damages: Gender, Race Ethnicity. SB 41 aims to narrow the consequences of observed differences in the pay of groups defined by gender or ethnicity. This bill, applying in personal injury and wrongful death cases, will forbid any reduction in damages resulting from an estimation, measure, or calculation or past, present, or future damages for lost or impaired earning capacity that is based on a person’s race, ethnicity, or gender.

Paid Family Leave Expansion & Task Force. Under SB 83, beginning July 1, 2020, the California Paid Family Leave benefit will be eight weeks instead of six weeks, paralleling an increase in San Francisco’s Paid Parental Leave benefit. The bill requires the Governor’s Office to convene a task force to develop a proposal by November 2019 to extend the duration of paid family leave benefits to six months by 2021-22 for parents to care for, and bond with, their newborn or newly adopted child. The November 2019 proposal will also address job protections for workers and the goal of providing a 90 percent wage replacement rate for low-wage workers utilizing the Paid Family Leave program to bond with a child. Approved by Governor Newsom on June 27, 2019, the bill became effective immediately.

AWAITING THE GOVERNOR’S APPROVAL

Independent Contractors Worker Status. AB 170 attempts to slide another exemption into AB 5, via a separate bill, for a newspaper distributor working under contract with a newspaper publisher and a newspaper carrier working under contract with either a newspaper publisher or distributor, until January 1, 2021.

Lactation Accommodation. Based upon the very similar San Francisco lactation ordinance, SB 142 would require employers to provide a lactation room for employees that meets the following requirements: not a bathroom; in close proximity to the employee’s work area; shielded from view; free from intrusion while the employee is lactating; safe, clean, and free of hazardous materials; containing a surface to place a breast pump and personal items; containing a place to sit; with access to electricity or alternative devices (e.g., extension cords, charging stations) that may be needed to operate an electric or battery-powered breast pump; and with access to a sink with running water and a refrigerator suitable for storing milk. If a multipurpose room is used for lactation and other uses, lactation must take precedence over the other uses.

The bill would make a denial of lactation break time or space a violation under rest period laws, and subject the employer to a $100 penalty per violation. The bill contains an anti-retaliation provision and an undue hardship exemption for employers with fewer than 50 employees. The bill would also require an employer to develop and implement a policy regarding any lactation accommodations, and make it readily available to employees. This inordinately comprehensive bill is a repeat of SB 937 (2018), which Governor Brown vetoed given his approval of a less onerous lactation accommodation law, AB 1976.

Sexual Harassment Retaliation Protection. Very similar to AB 3081 (2018), AB 171 would amend the Labor Code to add sexual harassment to the prohibitions on an employer from discriminating or retaliating against an employee because of the employee’s status as a victim of domestic violence, sexual assault, or stalking. The bill would also create a rebuttable presumption of retaliation if the employer takes an adverse action against the employee within 90 days of notice of the employee’s status as a victim. If signed, the bill would become effective January 1, 2020, and these provisions would become operative July 1, 2020.

Sexual Harassment Training: Construction and Temporary Employees. SB 530 would extend the date by when seasonal, temporary, or other employees that are hired to work for less than six months must begin receiving mandatory sexual harassment training to January 1, 2021, and incorporate special training provisions for construction industry employers that employ workers pursuant to a multiemployer collective bargaining agreement.

Leave Rights: Private Cause of Action. AB 1478 would amend Labor Code section 230 to authorize a private right of action (as an alternative to the existing remedy of filing a complaint with the Labor Commissioner) by an employee who takes time off for jury duty, for legal proceedings relating to being a victim of a crime, and for retaliation for being a victim of domestic violence, sexual assault, or stalking. The bill would also make the same changes to Section 230 as AB 171 (discussed above) if AB 171 is approved and AB 1478 is approved after AB 171 (to ensure that AB 171’s provisions also become law).

Organ Donation Leave of Absence. AB 1223 would require employers to grant an employee an unpaid leave of absence—in addition to the existing 30 days in a one-year period paid leave—for the purpose of organ donation. The bill would require a public (not private) employee to first exhaust all available sick leave before taking the unpaid leave.

Local Government Enforcement of FEHA. SB 218 would allow local governments within the County of Los Angeles to enforce, administer, and establish penalties for claims arising under local antidiscrimination laws that also fall under the FEHA, removing these claims from the sole jurisdiction of the DFEH. As if dealing with the downtown L.A. traffic maze weren’t enough, this bill would force employers who do business within Los Angeles to navigate a new network of municipal laws.

FEHA Administrative Exhaustion Extension. A repeat of 2018’s AB 1870, vetoed by Governor Brown, AB 9 seeks to extend the period within which an aggrieved person may file a complaint with the DFEH from one year to three years.

Division of Labor Standards Enforcement for Complaints. AB 403 would extend the statute of limitations for complaints alleging workplace retaliation from six months to two years, and would authorize attorney fees to any employee who successfully sues for retaliation based on whistleblowing.

Labor Commissioner Citations. SB 229 would expand the appeal and enforcement mechanisms available when the Labor Commissioner (“LC”) cites an employer for violating the Labor Code’s anti-retaliation provisions. The bill would establish procedures and deadlines the LC, court, and employers must follow when adjudicating or contesting a citation. SB 688 would expand the LC’s citation authority to include citations for failures to pay contract wages when the LC determines an employer had paid an employee below minimum wage.

Penalties for Failure to Pay Wages. AB 673 would authorize an employee to pursue a private right of action to recover penalties for the late payment of wages through the Private Attorneys General Act, and would remove the authority for the Labor Commissioner to recover civil penalties in an independent civil action. The bill would prohibit the employee from also recovering statutory penalties for the same violation.

Arbitration Prohibition. For agreements entered into, modified, or extended on or after January 1, 2020, AB 51 would prohibit any business from requiring that a job applicant or employee waive any right, forum, or procedure for a violation of the FEHA or Labor Code, including any requirement that an individual “opt out” or take affirmative action to preserve such rights. This bill seems to be another unconstitutional attempt by the California Legislature to forbid arbitration agreements.

AB 51 would make actionable any threatened or actual retaliation against an individual who refuses to consent to the forbidden requirements. AB 51 would authorize injunctive relief and attorney’s fees to any plaintiff who proves a violation. Possibly because much of AB 51 could be held preempted by the Federal Arbitration Act, AB 51 contains a severability clause by which the rest of the law will remain in effect if a court finds certain sections invalid. These provisions of AB 51 are very similar to part of last year’s vetoed AB 3080.

Arbitration Agreement Fees/Costs. SB 707 would require an employer or drafter of an arbitration agreement to pay costs and fees associated with the arbitration. Failure to pay the fees could constitute material breach of the arbitration agreement, or the employee could withdraw the claim from arbitration, or be entitled to attorney’s fees and costs. The bill would also require a private arbitration company to collect and report aggregate demographic data regarding the ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators.

Settlement Agreements Future Employment Restraints. AB 749 would prohibit settlement agreements that contain a provision restricting an employee from working for the employer against which the employee filed the claim.

Unfair Immigration-Related Practices. AB 589 would impose penalties on an employer that withholds an employee’s immigration-related documents and would create a Worker’s Bill of Rights concerning the employee’s freedom of movement and the payment of wages.

Workplace and School Gun Violence Restraining Orders. Beginning September 1, 2020, AB 61 would authorize an employer, or a coworker who has had substantial and regular interactions and approval of their employer, to file a petition for an ex parte, one-year, or renewed gun violence restraining order.

Call Center Protections. AB 1677 would require any employer with a call center currently in the state intending to relocate the call center to notify the LC at least 120 days before the relocation or face a civil penalty.

Industry-Specific Bills Awaiting Approval

Continuing Education: Implicit Bias in the Medical Field. AB 241 would require, by January 1, 2022, that continued education for physicians, surgeons, nurses and physician assistants include courses on implicit bias. The bill would require the Board of Registered Nursing and the Physician Assistant Board to adopt regulations requiring implicit bias training by January 1, 2022.

California Family Rights Act: Flight Crews. AB 1748 would amend the California Family Rights Act to conform flight deck and cabin crewmember eligibility requirements with the federal Family and Medical Leave Act, which has special hours of eligibility for airline flight attendants and other cabin crew. Flight attendants are eligible for FMLA if, during the previous 12 months, they have worked at least 504 hours and have been paid at least 60% of the monthly guarantee, which means that they worked 60% of the minimum number of hours which the employer scheduled the employee for any given month.

Sexual Violence and Harassment Prevention Training for Janitorial Workers. AB 547, the Janitor Survivor Empowerment Act, would require the Director of the Department of Industrial Relations to organize a training advisory committee that will generate a list of qualified organizations and trainers that janitorial employers would be required to use to provide biennial, in-person sexual violence and harassment prevention training for janitorial workers. This is in addition to the Property Service Workers Protection Act that kicks in on January 1, 2020, which we previously covered here.

Occupational Safety and Health for Valley Fever. AB 203 would require construction employers operating in counties where Valley Fever—a microscopic fungus which lives in the top few inches of the soil in many parts of California—is “highly endemic,” to provide effective training on the disease to employees annually and before an employee is anticipated to cause substantial dust disturbance.

Workplace Solutions

These bills are affecting businesses across the spectrum, and Seyfarth is following their passage (and potential passage) closely. We will continue to keep you informed of new developments as they arise, and please do not hesitate to reach out to your favorite Seyfarth counselors to discuss how to approach these new developments for your company.

Edited by Coby Turner

Seyfarth Synopsis: California’s hotly contested and closely followed AB 5 independent contractor bill, which would extend the ABC test beyond Wage Order claims, just passed the California Senate, and now heads back to the State Assembly for reconciliation before going to Governor Newsom’s desk for his expected signature.

Tell Me What You Think About Me: The Destiny of AB 5

The California Senate has just passed a landmark bill, Assembly Bill 5 (“AB 5”), affecting how many businesses will relate with their contractors. Under this bill, workers who have long thought they “depend on no one else” may now be treated as employees. AB 5 now heads back to the State Assembly for reconciliation before it returns to Governor Newsom’s desk for his expected signature.

AB 5 codifies the “ABC” test for employee status adopted by the California Supreme Court’s 2018 decision in Dynamex v. Superior Court. Dynamex, as we previously reported here, which held that a worker hired by a business who then sues the business on claims arising under California’s Wage Orders is the defendant’s employee unless the defendant proves (A) the worker is free from control and direction of the hirer in connection with performing the work, both under contract and in fact, (B) the worker performs work outside the usual course of the hiring entity’s business, and (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.

While many businesses and independent contractors thought it was bad enough to “get down with that,” AB 5 would expand Dynamex by applying the “ABC” test to all claims brought under the Labor Code, the Unemployment Insurance Code, and the Wage Orders. So, post-AB 5, the ABC test will apply to a host of additional causes of action, such as claims for failure to reimburse necessary business expenses (under Labor section 2802) or to provide accurate wage statements (under Labor Code section 226), that the ABC test did not apply to previously.

Also, AB 5 would broaden potential business liability by allowing the State Attorney General and certain city attorneys to pursue injunctions against businesses suspected of misclassifying workers.

‘Cause I Depend On Me: Exemptions From the ABC Test

Perhaps not surprisingly, given the intense lobbying efforts by businesses trying to preserve the status of workers traditionally considered independent, AB 5 contains numerous statutory exemptions from the ABC test, including:

  • A “business-to-business” exemption that applies to “business service providers” that contract to provide services to another business (provided that certain criteria are met).
  • A “service providers” exemption in certain fields, including graphic design, photography, tutoring, event planning, moving, home cleaning, pool and yard cleanup, animal services, web design, and dog grooming and walking.
  • An exemption for certain “professional services” such as jobs in marketing, human resources administration, travel agents, graphic designers, grant writers, fine artists, agents licensed to practice before the IRS, payment processing agents, photographers and photojournalists, freelance writers, editors or cartoonists, and professionals providing cosmetic services (e.g., licensed barbers and manicurists).
  • Certain other occupational exemptions, including (but not limited to) certain medical professionals, attorneys, architects, engineers, private investigators, registered securities brokers and dealers, commercial fishermen, real estate agents, construction subcontractors, and individuals providing roadside services pursuant to a contract between a motor club and a third party business.
  • And, assuming a pending companion bill to AB 5 is also passed into law, newspaper carriers will be exempted from the ABC test until 2021.

What’s Next?

AB 5, if signed into law, would become effective January 1, 2020, and surely would prompt a spike in litigation challenging independent contractor classifications. It is anticipated that the law will be subject to numerous legal challenges.

Workplace Solutions

The status of AB 5, its many legal challenges, and its impact on businesses and workers is evolving by the minute. So if you “truly feel” us, and want to know the latest on some of the most pressing wage and hour issues arising in the marketplace space, Seyfarth will be covering the topic in various ways for employers around the country. Choose the one that’s right for you! Or join our webinar, specifically developed to cover AB 5, which will take place soon. To get on the list for these upcoming events, click here.

We are also covering the topic as a part of a broader roundtable discussion on wage and hour issues. These roundtables are designed for in-house counsel and are taking place in San Francisco (10/23) and Boston (11/5). If you are in the Houston area, you can also find us chatting about AB 5 (10/10). For more information on these regional programs, click here.

Edited by Coby Turner

Seyfarth Synopsis: California employers racing to ensure all their employees receive mandatory harassment training by the end of the year can now take their foot off the gas. In response to an outcry from employer groups regarding the challenge of compliance at breakneck speed, the Legislature and Governor Newsom have extended the new training deadline for a year.

Faithful readers of this blog will recall that the 2018 legislation bringing us many other harassment-related provisions (SB 1343) greatly expanded sexual harassment training requirements (described here). Starting in 2019, under SB 1343, employers of as few as five people (down from fifty employees under the prior law) must provide two hours of interactive training to their supervisors. In addition, all such employers must now provide one hour of interactive training to all non-supervisory employees. SB 1343 served to greatly increase the number of employers covered and the volume of trainings required, and it set deadlines for the training. Employers around the state had geared up, started their engines, and raced to meet this aggressive deadline.

Then Governor Newsom waved a yellow flag. In his first lap around the bill-signing track, he tapped the brakes right before Labor Day by signing Senate Bill 778, no doubt to cheers and popped bottles of milk from employers across the state. SB 778—effective immediately upon the Governor’s August 30, 2019 signature—extends the deadline for non-supervisory employee training from January 1, 2020 until January 1, 2021. SB 778 also clears up confusion regarding the deadline to train supervisors trained under prior legal training requirements, since one interpretation of SB 1343 would have required supervisors trained in 2018 to be re-trained prior to the end of 2019. SB 778 now confirms that those supervisors who received 2018 training need not be trained again until 2020, so employers can go back to following their normal pace cars on existing supervisor training.

The training requirements for newly hired supervisory employees have not been changed in SB 778, and employers still must train new hires within six months of starting a supervisory position.

Workplace Solutions:

This welcome delay in the training deadline is no excuse to fall asleep at the wheel. Make a pit stop with your favorite Seyfarth advisor to determine the best way to ensure compliance before the new deadline catches you from behind.

Edited by Coby Turner

Seyfarth Synopsis: The hotly contested AB 5 was put on hold, but is widely expected to be revived before the end of the legislative session.

On August 13, 2019, the California Senate Appropriations Committee held a short hearing on Assembly Bill 5. AB 5, if enacted into law, would codify the “ABC Test” for employee status adopted in the California Supreme Court’s 2018 Dynamex v. Superior Court decision, and would thus further hinder the efforts of businesses to use independent contractors. While there was little substantive discussion of the bill, the hearing culminated in a potentially significant result.

The Senate Appropriations Committee referred AB 5 to the “suspense file,” because of if its significant fiscal impact. This action places a hold on the bill unless the Chair of the Appropriations Committee decides to return the bill to the Committee. Referral to the suspense file, in effect, functions as a veto if a bill is not returned to the Committee.

While this kind of action is often the death knell for many bills, the significant support for this bill from many legislators, including its influential author, Lorena Gonzalez Fletcher (D-San Diego), Chair of the Assembly Appropriations Committee, enhances the bill’s chances of being returned from suspense and continuing through the legislative process.

In fact, the Senate President pro tem, Toni Atkins (D-San Diego) fully expects AB 5 to move forward. And Atkins, much to the chagrin of gig economy companies, expressed skepticism that the bill eventually signed into law would contain a provision specifically addressing the status of gig workers, as negotiations between business and labor interests appear primed to continue into the next legislative session, stating in an interview with CapRadio’s Ben Adler “I have no doubt that we will discuss this into the next year.”

With that said, AB 5 will need to make it through the legislative process by the September 13th close of the legislative session, and must then be submitted to the Governor for his approval or veto by October 13th, lest it remain in suspense-file purgatory.

Workplace Solutions

Companies utilizing contractors should continue to keep a close eye on this legislation and how it may affect their current operations, as it has gone through a number of changes from its initial proposed form. Seyfarth will keep you apprised as the legislative session continues—stay tuned!

Edited by Coby Turner

Seyfarth Synopsis: A new set of proposed regulations requires all janitorial employees and their supervisors to receive two hours of in-person, interactive sexual harassment training every two years.

The Property Service Workers Protection Act of 2016 requires employers with at least one janitorial worker (including front line cleaners) to provide biennial sexual violence and harassment prevention training to janitorial employees and their supervisors. The law states that as of January 1, 2020, this training must be completed in order for these employers to register or renew their business with the Division of Labor Standards Enforcement (DLSE). But there’s a catch: janitorial employers have been left in the dark as to exactly what these training regulations will entail while the DLSE irons out the details.

The DLSE’s proposed regulations require:

  • In-person, interactive training. The regulations expressly forbid webinars, e-learning training, and the like as the sole method for providing this training. The training must be designed to encourage participants to apply the lessons learned regarding sexual violence and harassment to their particular work environment. For new employees, this in-person training must occur within the first six months of employment.
  • Two hour duration. Even janitorial employees with no supervisory responsibilities must take two hours of training, a departure from the one-hour requirement for nonsupervisory employees set forth in Government Code section 12950.1. Nevertheless, the training can be broken up into hourly increments.
  • Resources for sexual violence and harassment victims. In addition to the harassment training content required under Government Code section 12950.1 and related regulations, the training must identify local, state, and national resources for victims of unlawful sexual violence and harassment. In particular, community-based resources, such as rape crisis centers, should be identified.
  • Training to be provided in attendee’s language. The in-person training must be provided in a language understood by the attending janitorial employees and their supervisors. All written materials must be at their literacy level as well.
  • Written record of completed training. Employers must keep training records for three years. Employers must retain—and give the DLSE upon request—the names of the attendees and the trainer, a copy of all written materials, sign in sheets, and certificates of attendance.

Although the DLSE’s official training protocols were to be finalized no later than January 1, 2019, the comment period was extended. To date, the DLSE has not issued final regulations.

Meanwhile, pending legislation (AB 547) has passed the Assembly and is currently before the Senate. If passed, this bill could make the training requirements even more onerous. AB 547 would require employers to use qualified organizations to provide the mandated training, and would require lodging a report with the DLSE within 48 hours of the training. If this bill becomes law, the DLSE would have to develop and maintain a list of these qualified organizations (as well as peer trainers within these organizations).

Workplace Solutions

What should employers with one or more janitorial employees do until the DLSE straightens out the training requirements? For now, the Department of Industrial Relations advises that employers can meet their current obligations by giving their janitorial employees and their supervisors copies of the Department of Fair Employment and Housing (DFEH) pamphlet DFEH-185, “Sexual Harassment.” But employers will need to be prepared to implement the new regulations once they are finalized.

If you have questions about how to clean up your current training regimen, Seyfarth’s Workplace Solutions Group can help.

Edited by Elizabeth Levy

Seyfarth Synopsis: Cal/OSHA’s new emergency regulation for workers exposed to wildfire smoke creates new obligations for many employers.

An emergency regulation on Protection from Wildfire Smoke applies to outdoor workers and to workers in semi-indoor places. Examples include day laborers, agricultural workers, landscapers, construction workers, and sanitation workers. Requirements (described below) kick in when the current Air Quality Index (AQI) for airborne particulate matter (PM 2.5) is 151 or greater, and where employers should reasonably anticipate that employees could be exposed to wildfire smoke.

Employers covered by the emergency regulation must take the following steps to protect workers who may be exposed to wildfire smoke:

  • Identify harmful exposure to airborne particulate matter from wildfire smoke at the start of each shift and periodically thereafter by checking the AQI for PM 2.5 in regions where workers are located.
  • Reduce harmful exposure to wildfire smoke if feasible by, for example, relocating work to an enclosed building with filtered air, or to an outdoor location where the AQI for PM 2.5 is 150 or lower.
  • If employers cannot reduce workers’ harmful exposure to wildfire smoke so that the AQI for PM 2.5 is 150 or lower, they must provide:
  1. Respirators such as N95 masks to all employees for voluntary use, and
  2. Training on the new regulation, the health effects of wildfire smoke, and the safe use and maintenance of respirators.

The regulation will be effective through January 28, 2020, with two possible 90-day extensions. Cal/OSHA plans to convene an advisory committee in Oakland on August 27 to establish a permanent regulation using the regular rulemaking process. Meeting details and documents are posted on Cal/OSHA’s website.

For more information on this or any related topic, please contact the authors, your favorite Seyfarth attorney, or any member of the Seyfarth Workplace Safety and Health (OSHA/MSHA) Team.