1. Ventura Hersey & Muller, LLP
2019 Employment Law update
Daniel J. Muller
Ventura Hersey & Muller, LLP
1506 Hamilton Avenue
San Jose CA 95125

2. New LEGISLATION Sexual Harassment Training
SB-1343 Expands Sexual Harassment Training Requirements to Employers with 5 or more employees
Must complete training by January 1, 2020.
Applies to supervisory and non-supervisory employees.
Supervisor training is for 2 hours
Non-Supervisor training is for 1 hour

3. New LEGISLATION Sexual Harassment Training
The law requires the DFEH to develop a one-hour and a two-hour sexual harassment online training video and make the video available on its website
Employers have the option of developing their own training modules
DFEH will develop a certificate to show compliance
Employers must provide training at least every two years

4. NEW LEGISLATION Harassment
SB-1300 makes numerous changes to the Fair Employment and Housing Act, including:
Expands scope of training to include “bystander intervention training.” Employer must now provide information and practical guidance to enable bystanders to recognize potentially problematic behavior and provide skills to allow for effective intervention.
Extends liability for non-employee harassment beyond sexual harassment to include other forms of unlawful harassment.

5. NEW LEGISLATION Harassment
SB-1300 also:
Prohibits employers from requiring the execution of a “release of a claim or a right” under FEHA in exchange for a raise, bonus, or as a condition of employment or continued employment.
Prohibits employers from requiring an employee to sign a non-disparagement agreement or other documents prohibiting an employee from disclosing information “about unlawful acts in the workplace,” including but not limited to sexual harassment.

6. NEW LEGISLATION Harassment
SB-1300 also:
Limits a Defendant’s ability to recover costs and fees in a FEHA case to situations where the Employee’s case is deemed frivolous
Provides that even a single incident of harassment is sufficient for a case to proceed to trial; this will make it very rare for Defendants to obtain summary judgment of harassment claims

7. NEW LEGISLATION harassment settlements
SB-820: Created Code of Civil Procedure section 1001 which does the following:
Prohibits settlement agreement provisions that prevent disclosure of “factual information” related to a claim filed in a civil action or a complaint filed in an administrative action regarding (1) sexual assault (2) sexual harassment under the Unruh Act or (3) workplace sexual harassment, sex discrimination, or retaliation (4) housing discrimination or harassment.
Any such provisions executed on or after January 1, 2019 will be null and void.
Exception for identity of claimant if requested by claimant.
Does not prohibit provisions protecting the confidentiality of the amount paid.

8. NEW LEGISLATION harassment
SB-224 expands Civil Code 51.9’s sexual harassment prohibition to various business and professional relationships:
The law specifically expands harassment prohibitions to investors, elected officials, lobbyists, and directors or producers and to “substantially similar” relationships.
Removes the previous requirement that an individual who sues for sexual harassment must demonstrate that the relationship in question would not be easy to terminate.

9. NEW LEGISLATION harassment
SB-224 also:
Imposes liability for sexual harassers who hold themselves out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a third party
Amends the FEHA to authorize the DFEH to handle sexual harassment complaint arising from these non-employer relationships and to specify that it constitutes an unlawful practice under FEHA for a person to aid or conspire in the denial of rights in Civil Code 51.9.

10. NEW LEGISLATION defamation
AB-2770:
Provides protection for employers from defamation claims resulting from a former employer advising a prospective employer about a former employee’s sexual harassing behavior.
The law provides that the “common interest” privilege applies to statements by former employers made “without malice.”
Creates a “safe harbor” for reference checks where employer answers an “eligible for re-hire” question by stating that the answer is based on the employer’s determination that the former employee committed sexual harassment.

11. NEW LEGISLATION Lactation Area
AB 1976 amends Labor Code 1031 so that:
An employer must provide a room or location, other than a bathroom, for purposes of expressing milk.
“Undue hardship” exception.
Employer may comply by providing a “temporary lactation location” so long as the employer (1) shows it is unable to provide a permanent location; (2) the temporary location is private; (3) the temporary location is used only for lactation purposes while an employee expresses milk; and (4) the temporary location otherwise meets the California requirements concerning lactation accommodation.

12. NEW LEGISLATION Boards of Directors
AB 826 creates a requirement that, no later than the close of 2019, each publicly held company with principal executive offices in California must have at least one woman on its board of directors.
By the end of 2021, the requirement increases to 2 women on each board of directors.
Also requires the Secretary of State to publish various reports on its website documenting compliance.

13. NEW LEGISLATION Salary History
AB 2282 clarifies the salary history rules created by AB 168 in 2017.
AB 168 precluded employers from asking prospective employees about prior salary history. It also required employers to provide a pay scale for a position upon reasonable request by an applicant.
The new law defines “pay scale” as a “salary or hourly wage range.”
It also defines “reasonable request” as a “request after an applicant has completed an initial interview with the employer.”

14. NEW LEGISLATION Salary History
Further defines “applicant” as “an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position.”
Adds a new subsection to Labor Code 432.3(i) which specifies that an employer is not prohibited from asking an applicant about his or her salary expectation for the position.
Defines “reasonable request” as a “request after an applicant has completed an initial interview with the employer”

15. Court decisions independent contractors
On April 30, 2018, the California Supreme Court issued its landmark decision in Dynamex Operations West, Inc., v. The Superior Court of Los Angels County. The decision addresses the distinction between independent contractors and employees.
The decision severely limits whether and when a business can use independent contractors to perform work for the business’ customers or clients.
Specifically, the Court decided that, for a business to classify a worker as an independent contractor, the business must be compliant with what the Court called the “A, B, C Test.”

16. Court decisions independent contractors
The ABC Test:
(A) that the worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business.

17. Court decisions arbitration
Epic Systems, Inc. v. Lewis:
The United States Supreme Court held that:
Arbitration agreements between employers and employees which contain waivers of the employee’s right to lead or participate in a collective or class action are enforceable under the Federal Arbitration Act and do not violated section 7 of the National Labor Relations Act
This means that employers may require their employees to enter into such arbitration agreements as a condition of employment

18. Court decisions Hostile Environment
Meeks v. Autozone, Inc.:
A California appellate court ruled that a trial court erred when it excluded evidence of the content of sexual texts and other pornographic messages.
The Court ruled that a Plaintiff’s memories of the texts were admissible even though the actual messages had been lost.
The Court also found that the trial court had improperly excluded “me too” evidence from Plaintiff’s coworkers.

19. Court decisions EMPLOYEE NON-SOLICITATION
AMN Healthcare, Inc. v. Aya Healthcare Servs., Inc.:
Defendant restricted its former employees from soliciting Defendant’s employees for a period of one year following end of employment.
The Court ruled that the non-solicitation provision violated California Business and Profession Code section because it restrained employees from practicing their chosen profession.
Strongly questions the viability of non-solicit provisions going forward.

20. Ventura Hersey & Muller, LLP
Thank You!
Daniel J. Muller
Ventura Hersey & Muller, LLP
1506 Hamilton Avenue
San Jose CA 95125