Seyfarth Synopsis: For certain employment-related contracts, California legislation effective January 1, 2019, will limit efforts to prevent disclosure of information relating to claims of unlawful acts and sexual harassment in the workplace. Read on for the devilish details.

California employers will soon have to heed a new crop of laws, born of the #MeToo movement, which will limit the terms permitted in employment-related contracts. What types of contracts, and what kinds of terms, you may ask? The answer, involving discussion of three separate bills adding three new California Code provisions, is a mouthful. But here goes.

  • Affected contracts include employment contracts, settlement agreements, and any other kind of contract that would try to prevent someone from testifying about alleged criminal conduct or sexual harassment.
  • The limitations include prohibiting waivers of the right to testify about alleged criminal conduct, including sexual harassment, as well as outlawing provisions that would prevent disclosure of information about sexual harassment and other illegal conduct in the workplace. The exact types of prohibitions depend on the kind of contract we are talking about.

The devil, of course, is in the details—and here the details are complex. Because prohibitions and permissions for certain kinds of contracts overlap somewhat, each case calls for careful analysis. The three bills in question, applying to agreements made on or after January 1, 2019, provide as follows:

  • AB 3109 (adding Civil Code § 1670.11) addresses contracts generally, and voids contractual provisions that would prevent a party from testifying about alleged criminal conduct or sexual harassment when the party has been compelled or requested to do so by lawful process.
  • SB 820 (adding Code of Civil Procedure § 1001) addresses agreements settling lawsuits or administrative complaints (as opposed to claims asserted in an internal complaint or demand letter), and voids contractual provisions that would prevent a party from disclosing “factual information” about sexual harassment or related retaliatory conduct.
  • SB 1300 (adding Gov’t Code § 12964.5) amends the FEHA to address agreements required as a condition of employment, and makes it an unlawful employment practice to require employees to release FEHA claims or to keep mum about “unlawful acts in the workplace,” unless the agreement is a negotiated resolution of a lawsuit, an agency complaint, or an internal complaint brought by an employee, in which case the employer can still get a release and require confidentiality concerning allegedly unlawful acts (to the extent the confidentiality provisions are not otherwise unlawful by means of the two new provisions discussed above).

Meanwhile, an amendment to the federal tax code, 26 U.S.C. §162(q), affects payments made or incurred with respect to sexual harassment settlements made after December 22, 2017. This federal development is beyond the scope of this post, but we mention it as a “heads up” item and refer you to our previous blog post here.

Contracts Generally

New Civil Code § 1670.11 is straightforward: the law frowns upon contracts by which employees agree not to testify about alleged criminal conduct or sexual harassment if they are officially requested to do so. This new statute seems a solution in search of a problem in that few employers have ever been so bold as to have employees agree to defy official requests to testify on these subject matters. But there it is.

Settlement Agreements

New Code of Civil Procedure § 1001, by contrast, can require significant changes in existing settlement practices. The law states that no provision in an agreement to settle a lawsuit or administrative complaint can prohibit the disclosure of “factual information” related to a claim filed in that proceeding if the information is “regarding” (1) sexual assault, (2) sexual harassment, (3) workplace harassment or discrimination based on sex, (4) failure to prevent sex discrimination or harassment in the workplace, or (5) retaliation for reporting sexual harassment or discrimination in the workplace.

But are some non-disclosure provisions still permitted in settlement agreements? Yes.

  • The “amount paid” to resolve any claim lawsuit or administrative complaint may still be kept confidential. The new California law is silent on whether non-monetary settlement terms may also be kept confidential.
  • If the claimant in the settled lawsuit or administrative complaint requests confidentiality, the parties may agree to prevent the disclosure of “all facts” regarding alleged sexual harassment or discrimination (including court filings) that would lead to the discovery of the claimant’s identity.

NOTE: This carve-out does not apply where a government agency or public official is a party. In those instances, agreements cannot contain provisions keeping the claimant’s identity confidential.

  • If an employee has merely filed an internal complaint or sent a demand letter regarding sexual harassment, discrimination, or retaliation—and has not filed a lawsuit or administrative charge—a settlement agreement may still contain standard confidentiality provisions.

Agreements for Raises, Bonuses, or New or Continued Employment

New Government Code § 12964.5—which expressly does not apply to negotiated settlement agreements—provides:

  • It is an unlawful employment practice to require employees—either as a condition of employment or in exchange for a raise or bonus—to sign any of the following provisions:
    • A statement that the employee does not have any FEHA claim against the employer or other covered entity.
    • A release of the right to pursue a FEHA claim or to notify a governmental entity of the claim.
    • Any agreement that prohibits disclosure of “information about unlawful acts in the workplace, including, but not limited to, sexual harassment.”
    • This new FEHA provision carries more bite than the other new provisions, because a contract unlawful under the new FEHA provision is not only unenforceable but also can enable an aggrieved employee to sue for damages and other relief.

Workplace solution: Taken together, these new California laws should prompt a thorough review of employee agreements, release agreements, severance agreements, settlement agreements, contracts for continued employment, and even some Employee Handbook provisions. Some language may need to be added to certain agreements. Meanwhile, where the employer is settling a case that does not allege sexual harassment or assault or discrimination or retaliation, broader confidentiality and non-disparagement clauses remain as permissible as ever.

Seyfarth Synopsis: August 31 was the California Legislature’s last day to send bills to Governor Brown for his approval or veto by his September 30 deadline. Chief among them are bills addressing sexual harassment.

2018, the year of #MeToo, saw California Senators and Assembly Members introduce numerous bills on sexual harassment-prevention, often followed by their colleagues’ response of “me too!” By the August 31 bill-passing deadline, the Legislature approved no fewer than 12 sexual harassment-related bills, as well as bills relating to lactation accommodations, gender quotas for corporation boards of directors, and various other labor and employment-related bills.

Below is a summary of passed bills now before Governor Brown for his approval or veto. Once the Governor acts (by his own September 30 deadline), we’ll provide an update on all labor and employment-related bills enacted into law this Session, as well as those bills that failed to pass and any that met a gubernatorial veto.

Sexual Harassment

Limiting Settlement Agreements. For settlement agreements entered into on or after January 1, 2019, SB 820 would prohibit and make void any provision that prevents the disclosure of information related to civil or administrative complaints of sexual assault, sexual harassment, and workplace harassment or discrimination based on sex. SB 820 expressly authorizes provisions that (i) preclude the disclosure of the amount paid in settlement and (ii) protect the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested anonymity and the opposing party is not a government agency or public official. SB 820 suggests that a violation of its provisions would give rise to a cause of action for civil damages.

Banning Waivers of Rights to Testify. As to any contract or settlement agreement entered into on or after January 1, 2019, SB 3109 would make void and unenforceable any provision that waives a party’s right to testify in a legal proceeding (if required or requested by court order, subpoena or administrative or legislative request) regarding criminal conduct or sexual harassment on the part of the other contracting party, or the other party’s agents or employees.

Banning Contractual Limits on Disclosure and Effectively Banning Arbitration Agreements. For agreements entered into, modified, or extended on or after January 1, 2019, AB 3080 would forbid any business to require, as a condition of employment , of conferring an employment benefit, or of entering a contract:

  • that a job applicant, employee, or independent contractor not disclose instances of sexual harassment suffered, witnessed, or discovered in the work place or in performance of the contract, opposing unlawful practices, or participating in harassment and discrimination related investigations or proceedings, or
  • that a job applicant or employee waive any right, forum, or procedure (e.g,, arbitration) 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 3080 would make actionable any threatened or actual retaliation against an individual who refuses to consent to the forbidden requirements. AB 3080 would authorize injunctive relief and attorney’s fees to any plaintiff who proves a violation. Possibly because much of AB 3080 could be held preempted by the FAA, AB 3080 contains a severability clause by which the rest of the law will remain in effect if a court finds certain sections invalid.

Extending Liability for Employers and for Businesses Using Labor Contractors. AB 3081 would amend the FEHA and Labor Code to: (1) add status as a sexual harassment victim to existing prohibitions on discrimination against employees who are victims of domestic violence, sexual assault, or stalking; (2) create a rebuttable presumption of unlawful retaliation if the employer—within 30 days of notice of the victim’s status—discharges or threatens to discharge, demotes, suspends, or otherwise discriminates against a victim employee; (3) make a business jointly liable for harassment of workers supplied by the business’s labor contractor (existing law similarly extends liability for the contractor’s failure to pay wages and obtain valid workers’ compensation coverage); (4) prohibit businesses from shifting to their labor contractors duties or liabilities under the Labor Code workers’ compensation insurance provisions.

Expanding Record Retention Duties. AB 1867 would require employers with 50 or more employees to maintain records of internal employee complaints alleging sexual harassment for at least five years after the last day of employment of either the complainant or the alleged harasser named in the complaint, whichever is later. If an employer fails to comply, then AB 1867 would allow the DFEH to seek an order requiring the employer to do so.

Extending the Deadline for Harassment Complaints. AB 1870 would extend a complainant’s time to file an administrative charge with the DFEH from one year to three years after the alleged incident. This expansion of the limitations period would apply to all types of FEHA-prohibited conduct, including sexual harassment.

The Sexual Harassment Omnibus Bill. The strongest, and largest, sexual harassment bill is SB 1300. Passing the Assembly by a narrow margin of 41-33, SB 1300 would:

  • Adopt or reject specified judicial decisions regarding sexual harassment (in each case expanding employer liability). Specifically, SB 1300 would (1) prohibit reliance on Brooks v. City of San Mateo to determine what conduct is sufficiently severe or pervasive to constitute actionable harassment, (2) disapprove any language in Kelley v. Conco Companies that might support different standards for hostile work environment harassment depending on the type of workplace, and (3) affirm Nazir v. United Airlines, Inc.’s “observation that hostile working environment cases involve issues ‘not determinable on paper.’”
  • Expand an employer’s potential liability under the FEHA for acts of nonemployees to all harassment (removing the “sexual” limitation).
  • Prohibit an employer from requiring an employee to sign (in specified circumstances) (1) a release of FEHA claims or rights or (2) a document prohibiting disclosure of information about unlawful acts in the workplace.
  • Prohibit a prevailing defendant from being awarded attorney’s fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so.
  • Authorize (but not require) an employer to provide bystander intervention training to its employees.

Expanding Scope of Required Sexual Harassment Training. SB 1343 would require an employer of five or more employees—including seasonal and temporary employees—to provide certain sexual harassment training by January 1, 2020. Within six months of their assuming their position (and once every two years thereafter), all supervisors are to receive at least two hours of training, and all nonsupervisory employees are to receive at least one hour. SB 1343 would also require the DFEH to make available a one-hour and a two-hour online training course employers may use and to make the training videos, existing informational posters, fact sheets, and online training courses available in multiple languages.

Empowering Janitor Harassment Survivors. Touted by Assembly Member Lorena Gonzalez Fletcher as the bill to “empower janitors to prevent #RapeOnTheNightShift,” AB 2079 would bolster existing sexual harassment and violence prevention training and prevention measures:

  • Effective January 1, 2020, all employers applying for new or renewed registration must demonstrate completion of sexual harassment violence prevention requirements and provide an attestation to the Labor Commissioner.
  • The Department of Industrial Relations (“DIR”) must convene an advisory committee to develop requirements for qualified organizations and peer-trainers for employers to use in providing training, and the DIR must maintain a list of qualified organizations and qualified peer-trainers.
  • Employers, upon request, must provide an employee a copy of all training materials.

AB 2079 would also prohibit the Labor Commissioner from approving a janitorial service employer’s request for registration or for renewal if the employer has not fully satisfied a final judgment to a current or former employee for a violation of the FEHA.

Requiring Sexual Harassment Education for In-Home Support Services. AB 3082 would require the Department of Social Services to develop or identify—and provide a copy and description to the Legislature by September 30, 2019—(1) educational materials addressing sexual harassment of in-home supportive services (IHSS) providers and recipients, and (2) a method to collect data on the prevalence of sexual harassment in the IHSS program.

Requiring Sexual Harassment Education by Talent Agencies. AB 2338 would require talent agencies to provide adult artists, parents or legal guardians of minors aged 14-17, and age-eligible minors, within 90 days of retention, educational materials on sexual harassment prevention, retaliation, and reporting resources. For adult model artists only, the talent agency would be required to provide materials on nutrition and eating disorders. Talent agencies would also have to retain, for three years, records showing that those educational materials were provided.

Strengthening Prohibitions Against Harassment With Respect to Professional Relationships. SB 224 would give additional examples of professional relationships where liability for claims of sexual harassment may arise and authorize the DFEH to investigate those circumstances.

Non-Harassment Bills

Opening Doors for Women in the Boardroom. “The time has come for California to bring gender diversity to our corporate boards,” stated co-author Senator Hannah-Beth Jackson in her August 30 press release regarding SB 826. SB 826 would require a publicly held corporation based in California to have a minimum number of females—people who self-identify as women, regardless of their designated sex at birth—on its board of directors. This bill would require each such corporation, by December 31, 2019, to have at least one female director on its board and, if no board seats open up before this date on an all-male board, the corporation would need to increase its authorized number of directors and fill a new seat with a woman. The bill would impose minimum seats that must be filled by women, proportional to the total number of seats, by the end of July 2021. The bill would require the Secretary of State to publish a report by July 1, 2019 of the number of corporations headquartered in California that have at least one female director, and a report by March 1, 2020, detailing (1) the number of corporations that complied with requirements in 2019, (2) the number of corporations that moved their headquarters in or out of California, and (3) the number of publicly held corporations subject to this bill during 2019, but no longer publicly traded.

Corporations failing to comply would face penalties. For each director’s seat not held by a female during at least a portion of the calendar year—when by law it should have been—the corporation would be subject to a $100,000 fine for the first violation and a $300,000 fine for further violations. Corporations that fail to timely file board member information with the Secretary of State would also be subject to a $100,000 fine.

Expanding Lactation Accommodations. Two bills specifying the types of spaces employers must provide women for lactation are now before the Governor. AB 1976 would require employers to make reasonable efforts to provide a room or location (that is not a bathroom, deleting “toilet stall” and inserting “bathroom”) for lactation. The bill would authorize a temporary lactation location if certain conditions are met and provides a narrow undue hardship exemption.

SB 937, meanwhile, would require employers to:

  • Provide a lactation room with prescribed features and access to a sink and refrigerator (or another cooling device suitable for storing milk) in close proximity to the employee’s workspace.
  • Develop and distribute to employees a lactation accommodation policy.
  • Maintain accommodation request records for three years and allow the employee and Labor Commissioner access to the records.

SB 937 would also deem the denial of break time or space for lactation a failure to provide a rest period under Labor Code section 226.7. This bill would require the DLSE to create a model lactation accommodation request form and authorize the DLSE to create a model lactation policy and best practices.

Encouraging Mediation Confidentiality. SB 954 would require attorneys, except in class actions, to provide their mediating clients with a written disclosure containing the mediation confidentiality restrictions provided in the Evidence Code and to obtain a written acknowledgment signed by the client stating that the client has read and understands the confidentiality restrictions. This duty arises as soon as reasonably possible before the client agrees to participate in mediation or a mediation consultation, The bill is an encouragement, with little consequence, providing that an attorney’s failure to comply is not a basis to set aside an agreement prepared in mediation or pursuant to a mediation.

Criminal History. SB 1412—the only bill this year covering criminal background checks to survive the legislative gauntlet—would require employers to consider only a “particular conviction” (as defined by the bill) relevant to the job when screening applicants using a criminal background check.

Pay Statements. Stating it is declaratory of existing law, SB 1252 would amend Labor Code section 226 to provide employees the right “to receive” a copy—not just inspect or copy—their pay statements.

Immigration Documents. AB 2732 would make it a misdemeanor— subject to a $10,000 penalty—for an employer to destroy or withhold passports or other immigration documents. This bill would also require an employer to provide the “Worker’s Bill of Rights” (to be developed by the DIR) to employees either before verifying employment eligibility if hired on or after July 1, 2019 and whenever the document is made available by the DIR if the employee is hired before July 1, 2019. Employers would be required to keep signed copies of this document for at least three years. AB 2732 also would clarify the definition of janitorial services’ employer under the Labor Code, provide that additional contact and compensation information for janitorial workers be retained for three years, and require these employers (as part of their application or renewal of their registration) to attest that sexual violence and harassment prevention training has been provided.

Contractor Liability. AB 1565 would, immediately upon the Governor’s signing, repeal the express provision that relieved direct contractors for liability for anything other than unpaid wages and fringe or other benefit payments or contributions including interest owed.

Port Drayage Motor Carries. SB 1402 would require the DLSE to post a list on its site of “bad actor” port drayage motor carriers. Examples would include companies with any unsatisfied judgment or assessment or any “order, decision, or award” finding illegal conduct as to various wage/hour issues, specifically including independent contractor misclassification and derivative claims. SB 1402 would also extend joint and several liability to the customers of “bad actor” drayage motor carriers for their future wage violations of the same nature.

Stay tuned! We will provide a full update of those bills that were voted and signed into law this Session, as well as which bills failed to meet the Legislature’s or Governor’s approval, after Governor Brown has done his work on the remaining bills.

Seyfarth Synopsis: Dominating this spring’s planting of proposed employment-related legislation are bills aimed at ending sexual harassment and promoting gender equity. Among the secondary crops are bills regarding accommodation, leave, criminal history, and wage and hour law. It threatens to be another bitter fall harvest for California’s employer community.

California legislators stormed into the second half of the 2017-18 legislative session, introducing over 2,000 bills by the February 16 bill introduction deadline. With Spring upon us, one must ponder what L&E-related bills planted thus far will grow into by the time of the legislative harvest this fall. By that time some will have died on the vine in the summer heat, and some, fully ripened, will go to the Governor. Will the Governor, among the closing acts of his term, approve or reject them?

Meanwhile, the newly planted bills will get a week to rest as legislators head for Spring Break today, March 22. The Legislature reconvenes on April 2 for committee hearings and amendments. June 1 is the deadline for legislation to pass out of its house of origin. Stay tuned for more in-depth analyses of the proposed bills as the session continues.

Sexual Harassment

No fewer than ten bills address the issue of sexual harassment. Some are merely spot bills, while others are more developed. Because you all have day jobs, we have read the bills so you won’t have to. A brief summary of each follows. Contact us if you want to know more. Or even just to vent.

AB 1867 would require employers with 50 or more employees to retain records of all internal employee sexual harassment complaints for ten years, and would allow the Department of Fair Employment and Housing (DFEH) to seek an order compelling non-compliant employers to do so.

SB 1300 would amend the Fair Employment and Housing Act (FEHA) to (1) absolve a plaintiff who alleges that his/her employer failed to take all reasonable steps necessary to prevent discrimination and harassment from occurring from proving that sexual harassment or discrimination actually occurred, (2) prohibit release of claims under FEHA in exchange for a raise or a bonus or as a condition of employment or continued employment, and (3) require employers, regardless of size, to provide two hours of sexual harassment prevention training within 6 months of hire and every two years thereafter to all employees—not just supervisors.

SB 1343, which closely resembles SB 1300, would require employers with five or more employees to provide at least two hours of sexual harassment training to all employees by 2020 and then once every two years thereafter. SB 1343 would also require the DFEH to produce and publish a two-hour video training course that employers may utilize.

SB 224 would extend liability for claims of sexual harassment where a professional relationship exists between a complainant and an elected official, lobbyist, director, or producer. AB 2338 would require talent agencies to provide to employees and artists, and the Labor Commissioner to provide minors and their parents, training and materials on sexual harassment prevention, retaliation, nutrition, reporting resources, and eating disorders.

Assembly Member Gonzalez-Fletcher introduced a package of spot bills (to which substance will later be added) targeting “forced arbitration agreements” and increasing protections for sexual harassment victims. AB 3080 would prohibit (1) requiring employees to agree to mandatory arbitration of any future claims related to sexual harassment, sexual harassment, or sexual assault as a condition of employment and (2) non-disclosure provisions in any settlement agreement. AB 3081 would create a presumption that an employee has been retaliated against if any adverse job action occurs against that employee within 90 days of making a sexual harassment claim, and would extend current sexual harassment training requirements to employers with 25 or more employees. AB 3082 would create a statewide protocol for public agencies to follow when In Home Support Service (IHSS) workers encounter harassment and sexual harassment prevention training for IHSS workers and clients. AB 2079—soon to be named the “Janitor Survivor Empowerment Act”—would enact specific harassment training rules for the janitorial service industry. AB 2079 builds upon AB 1978—the Property Services Workers Protection Act, effective July 1, 2018—which established requirements to combat wage theft and sexual harassment for the janitorial industry.

AB 1761 would require hotels to (1) provide employees with a free “panic button” to call for help when working alone in a guest room, (2) maintain a list of all guests accused of violence or sexual harassment for five years from the date of the accusation and decline service for three years to any guest on that list when the accusation is supported by a sworn statement, and (3) post on the back of each guestroom door a statement that the law protects hotel employees from violent assault and sexual harassment.

SB 1038 would impose personal liability under FEHA on an employee who retaliates by terminating or otherwise discriminating against a person who has filed a complaint or opposed any prohibited practice, regardless of whether the employer knew or should have known of that employee’s conduct. (Personal liability already exists for harassment, but not for retaliation.)

AB 2366 would extend existing law, which already protects employees who take time off work related to their being a victim of domestic violence, sexual assault, and stalking. AB 2366 would also protect employees who take time off because an immediate family member has been such a victim. AB 2366 would also add sexual harassment to the list of reasons for which this protection applies.

AB 2770 addresses the apprehension that harassment complaints and employer responses might trigger defamation suits. AB 2770 creates a “privilege” for complaints of sexual harassment by an employee to an employer based upon credible evidence, for subsequent communications by the employer to “interested persons” and witnesses during an investigation, for statements made to prospective employers as to whether an employee would be rehired, and for determinations that the former employee had engaged in sexual harassment. The California Chamber of Commerce has sponsored this bill.

AB 1870 would extend the time an employee has to file a DFEH administrative claim (including, but not limited to, a sexual harassment claim). The current deadline is one year from the alleged incident. AB 1870 would make it three years! In a similar bill, AB 2946 would extend the time to file a complaint with the DLSE from six months to three years from the date of the violation. This bill would also amend California’s whistleblower provision to authorize a court to award reasonable attorney’s fees to a prevailing plaintiff.

AB 1938 would limit employer inquiries about familial status during the hiring or promotional process. AB 1938 would make it unlawful to make any non-job related inquiry about an individual’s real or perceived responsibility to care for family members.

SB 820, the “Stand Together Against Non-Disclosure” (STAND) Act, would prohibit provisions in settlement agreements entered into on or after January 1, 2019 that require the facts of the case to be kept confidential, except where the claimant requested the provision, in cases involving sexual assault, sexual harassment, and sex discrimination. SB 820 would allow settlement amounts to be kept private. The bill is sponsored by the Consumer Attorneys of California and the California Women’s Law Center.

AB 3109 would void any contract or settlement agreement entered into on or after January 1, 2019 that waives a party’s free speech and petition rights, meaning one that would limit a party’s ability to make any written or oral statement before or in connection with an issue before a legislative, executive, or judicial proceeding, or make any written or oral statement in a place open to the public or a public forum in connection with an issue of public interest. The bill would also prohibit contracts or settlement agreements that restrict a party’s rights to seek employment or reemployment in any lawful occupation or industry.

Pay Equity

SB 1284 is another effort to mandate annual reporting of pay data. It follows last year’s vetoed AB 2019 attempt at a pay data report, though it more closely resembles last year’s failed revised federal EEO-1 report. SB 1284 would require employers with 100 or more employees to report pay data to the Department of Industrial Relations on or before September 30, 2019 and on or before September 30 each year thereafter. The report is to include the number of employees by race, ethnicity, and sex; all levels of officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers; and each employee’s total earnings for a 12-month period. Non-compliant employers would be subject to a $500 civil penalty. In contrast, last year’s AB 1209 would have required California employers with 500 or more employees to gather information on pay differences between male and female exempt employees and male and female board members and report the information annually to the Secretary of State for publishing (i.e., public shaming).

Wage/Hour

Pay Statements: SB 1252 would grant employees the right “to receive” a copy (not just inspect) their pay statements. AB 2223 would provide employers the option to provide itemized pay statements on a monthly basis in addition to the currently required semi-monthly basis or at the time wages are paid. Conversely, AB 2613 would impose penalties of $100 for each initial violation plus $100 for each subsequent calendar day, up to seven days, and more than double for subsequent violations, payable to the affected employees, on employers who violate Labor Code provisions requiring payment of wages twice per month on designated paydays, and once per month for exempt employees.

Flexible Work Schedules: AB 2482 would allow non-exempt employees working for private employers and not subject to collective bargaining agreements to request a flexible work schedule to work ten hours per day within a 40-hour workweek without overtime for the 9th and 10th hours, as long as the employee does not work more than 40 hours in the workweek.

Contractor Liability: AB 1565 is an urgency statute that would take effect immediately upon receiving the Governor’s signature. AB 1565 would repeal the express provision that relieved direct contractors for liability for anything other than unpaid wages and fringe or other benefit payments or contributions including interest owed. The law currently extends liability in construction contracts for any debt owed for labor to a wage claimant incurred by any subcontractor acting under, by, or for the direct contractor or the owner.

PAGA: AB 2016 would require that the employee’s required written PAGA notice to the employer include a more in-depth statement of facts, legal contentions, and authorities supporting each allegation, and include an estimate of the number of current and former employees against whom the alleged violations were committed and on whose behalf relief is sought. AB 2016 would also prescribe specified notice procedures if the employee or employee representative seeks relief on behalf of ten or more employees. The bill would exclude health and safety violations from PAGA’s right-to-cure provisions, increase the time the employer has to cure violations from 33 to 65 calendar days, and provide an employee may be awarded civil penalties based only on a violation actually suffered by the employee. (In sum, a valiant effort to provide employers with some modicum of due process in PAGA case, but it doesn’t stand a chance.)

Accommodations

Lactation: AB 1976 would clarify existing law so that employers must make reasonable efforts to provide a room or location for lactation, other than a bathroom. This bill cleared its first hurdle—the Assembly Labor and Employment Committee—by receiving unanimous approval on March 14. SB 937 would require even more: a lactation room must be safe, clean, and free of toxic or hazardous materials, must contain a surface to place a breast pump and personal items, must contain a place to sit, and must have access to electricity. SB 937 would also require employers to develop and implement a new lactation accommodation policy. The policy must describe an employee’s right to a lactation accommodation, how to request an accommodation, the employer’s obligation to provide accommodation, and the employee’s right to file a request with the Labor Commissioner. Employers would be required to respond to an employee’s accommodation request within five days and provide a written response if the request is denied, and maintain accommodation request records for three years. SB 937 would make employers with fewer than five employees eligible for an undue hardship exemption from the room or location requirement. The bill would also charge the DLSE with the responsibility of creating a model lactation policy and request form and making it available to employers on the DLSE website.

Marijuana: About a dozen states now protect medical cannabis users from employment discrimination. California, meanwhile, has permitted employers to enforce policies against the use of cannabis, which remains illegal under federal law. AB 2069 would change that. AB 2069 would prohibit employers from refusing to hire, taking adverse action against, or terminating an employee based on testing positive for cannabis if the employee is a qualified patient with an identification card or their status as one. The bill would permit employers to take corrective action against an employee who is impaired while on the job or on the premises, and would not apply to employers who would lose a monetary or licensing benefit under federal law if they hired or retained such an employee.

Sick & Other Leaves

AB 2841 would increase an employer’s alternate sick leave accrual method from 24 hours by the 120th calendar day of employment to 40 hours (or 5 days) of accrued sick leave or paid time off by the 200th calendar day of employment. But an employee’s total sick leave accrual would not need to exceed 80 hours (or 10 days). An employer would be able to limit the amount sick leave carried over to the following year to 40 hours or 5 days. This increase would apply to IHSS providers beginning January 1, 2026.

AB 2587 would remove an employer’s ability to require an employee to take up to two weeks of earned but unused vacation before the employee receives family temporary disability insurance benefits under the paid family leave program to care for a seriously ill family member or to bond with a minor child within one year of birth or placement during any 12-month period the employee is eligible for these benefits.

Criminal History

Following the state-wide Ban-the-Box law that went into effect on January 1, 2018, AB 2680 would require the California Department of Justice (DOJ) to create a standard consent form that employers must use when requesting that a job applicant consent to a DOJ criminal conviction history background check. Meanwhile, the “Increasing Access to Employment Act,” SB 1298, would limit the criminal history information the DOJ will provide employers to recent misdemeanors and felonies (within five years), and other offenses for which registration as a sex offender is required. The bill would also prohibit the disclosure of any convictions that have been dismissed, exonerations, or arrests that have been sealed.

SB 1412 would allow employers to inquire into a job applicant’s particular conviction, regardless of whether that conviction has been judicially dismissed or sealed, under these specified conditions: (1) the employer is required by state or federal law to obtain information about the particular conviction, (2) the job applicant would carry or use a firearm as part of the employment, (3) the job applicant with that particular conviction would be ineligible to hold the position sought, or (4) the employer is prohibited from hiring an applicant who has that particular conviction.

AB 2647 would prohibit evidence of a current or former employee’s criminal history from being admitted, under specified circumstances, in a civil action based on the current or former employee’s conduct against an employer, an employer’s agents, or an employer’s employees.

In a category all its own, yet still notable:

SB 954 would require an attorney representing a party in mediation to inform the client of the confidentiality restrictions related to mediation and obtain informed written consent that the client understands these restrictions before the client participates in the mediation or mediation consultation.

Workplace Solutions.

Don’t fret yet! Spring has only just sprung, and these bills all have a lot of growing to do (with some pruning for improvement?). Stay tuned … . We’re keeping our eyes and ears glued on the Capitol.

Seyfarth Synopsis:  With summer months almost upon us, here are some dress code tips and tricks for employers to ensure both employee compliance with relaxed summer dress codes and increased employee motivation and morale. We also note pitfalls to avoid when developing these dress codes.

Who doesn’t love wearing khakis and polos to work? Relaxed summer dress codes are a common practice among businesses that seek to boost employee morale during a time when some folks want to be at the beach. Establishing these summer dress code guidelines, however, can be a challenge because they can introduce ambiguity and confusion. Employees may not have a clear sense of what attire satisfies a “relaxed” dress code, and as a result wear clothing that is inappropriate.

Here are some considerations to keep in mind, with suggested language for dress codes.

Acceptable Summer Dress Code Restrictions

Establish written guidelines for dress in the workplace. One place to put them is the employee handbook. If a relaxed summer dress code is a new addition, then an addendum to the dress code policy may be in order, or even a stand-alone policy.

California recognizes the need for employers to adopt dress and grooming standards based on business needs. These include safety in the workplace, fostering an atmosphere of professionalism, and adherence to accepted social norms or customs. With these points in mind, it is generally okay to ask that employees not wear the following:

  • shorts
  • crop tops, halter tops, tank tops and spaghetti straps
  • “maxi” dresses
  • sun dresses
  • jumpsuits, rompers, or overalls
  • T-shirts
  • flip flops, sandals, and other casual footwear
  • sunglasses
  • hats

The EEOC generally tolerates dress codes that apply to all employees within a certain job category, even if the dress code might conflict with some workers’ ethnic beliefs or practices. Employers, then, can require employees to leave their nose rings, tongue studs, and other body piercings at home.

What To Avoid: Discriminatory Dress Codes

In America generally, dress codes that differentiate between men and women are not unlawful as sex discrimination because these employer requirements do not affect employment opportunities. Employers thus may allow women, but not men, to wear their hair long, or may ban earrings for men, while allowing them for women. But California takes things to the next level: California law forbids employers to ban the wearing of pants, unless that ban applies to both genders. California thus protects the right of women to wear pantsuits. There are a few exceptions to the pantsuits rule, such as dress codes requiring employees “in a particular occupation to wear a uniform” or requiring employees to wear a costume while portraying a specific character in a dramatic role.

Federal law does not recognize gender as a stand-alone category and instead identifies “gender identity, including transgender status” as types of sex discrimination. Not surprisingly, California is different here as well.  California’s interpretation of gender includes “gender identity and gender expression.” “Gender expression” in California includes gender-related appearance and behavior whether or not it is stereotypically associated with the person’s assigned gender at birth. This language aims to protect persons whose physical and behavioral characteristics are associated with a particular gender.  Summer dress codes, as with any dress code, should take into account this expansive definition.

California is also peculiar in the area of religious dress and grooming practices. California law, unlike federal law, defines “religious grooming practices” as including  “all forms of head, facial, and body hair that are part of the observance” of the individual’s religious creed. Along those same lines, California is also peculiar in that it forbids segregating an employee to achieve a religious accommodation. Thus, an employer confronted with an employee with a religious grooming practice does not have the option of accommodating that practice by moving that the employer away from customers and to the back of the house.

Workplace Solutions

The summer months by their nature inspire a more casual atmosphere (especially in sunny California!). While dress codes can be tailored to reflect this, it is important to ensure that they still comply with the law and that they are consistently and equitably enforced (especially in California). If you are considering instituting a summer dress code, or if you would like to review an existing one, please do not hesitate to reach out to our experts in Seyfarth’s California Workplace Solutions Group.

Edited by Michael Wahlander.