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Employers will heed new laws on arbitration agreements and more in the new year

Required and recommended actions for dental office compliance

November 13, 2019 5244

California employers will need to take action soon to comply with new laws pertaining to employment discrimination claims, paid family leave, harassment prevention training and other areas of employment practice. The laws take effect as early as Jan. 1, 2020, and are the result of bills introduced in the last legislative session and signed into law in October by Gov. Gavin Newsom.

California employers will need to take action soon to comply with new laws pertaining to employment discrimination claims, paid family leave, harassment prevention training and other areas of employment practice. The laws take effect as early as Jan. 1, 2020, and are the result of bills introduced in the last legislative session and signed into law in October by Gov. Gavin Newsom.

Senate Bill 142, which expands lactation accommodation requirements, will be covered in detail in a separate article in the December Update. Summaries of the other laws and any actions employers will need to take — from updating employee policies to providing new training — are provided here along with compliance deadlines.

Employment discrimination claims

Description: Assembly Bill 9 extends the statute of limitations from the current one year to three years for complaints alleging employment discrimination under the Fair Employment and Housing Act.

Effective Jan. 1, 2020, employees (or former employees) will have three years from the date of their termination or the end of the alleged discriminatory conduct to file a discrimination charge with the Department of Fair Employment and Housing using the DFEH intake form. The extension does not apply to previously lapsed claims. After filing the charge and receiving a letter from the DFEH granting the right to sue, the employee then has one additional year to file a lawsuit under current law and AB 9.

Employer action: Employers should be vigilant, always, about maintaining detailed, accurate employment-related documentation, which can include an exit interview that documents the employee’s stated reason for terminating employment. Statements concerning complaints from any exiting managers or supervisors should also be kept.

Employment arbitration agreements waiver

Assembly Bill 51 bans employers from requiring employees or applicants to waive any right, forum or procedure under the Fair Employment and Housing Act or Labor Code as a condition of employment. It also prohibits employers from retaliating or threatening employees who refuse to waive such rights. The new law will apply to agreements entered into, modified or extended on or after Jan. 1, 2020, but does not apply to post-dispute settlement or negotiated severance agreements.

Employers should be aware that due to the placement of the statute in the Labor Code, a violation is considered a misdemeanor.  

Employer action: There is still much controversy surrounding this statute because it violates the Federal Arbitration Act that preempts state laws that attempt to regulate or restrict arbitration agreements. Because of the risk of possible criminal action, employers who wish to continue to implement arbitration agreements and employers who currently have agreements in place are highly encouraged to review any current arbitration agreements with legal counsel.

Enforcement of Arbitration Agreements

Employees or consumers will be eligible for certain remedies under SB 707 should a drafting party breach an arbitration agreement by failing to pay the costs and fees required to initiate the arbitration. The bill also requires the court to impose a monetary sanction on a drafting party.  If a company failed to pay the arbitration fees in a consumer or employment arbitration, it would be a material breach and it would allow the employee or consumer to proceed in court and requires the court to impose sanctions.

Employer action: Employers should consult with legal counsel on the implications of new arbitration laws.

Antidiscrimination training for temporary and seasonal workers

Senate Bill 530 delays until Jan. 1, 2021, the completion of sexual harassment prevention training for seasonal, temporary or other employees hired to work for less than six months.

All employers with five or more employees are required to provide the new training required under SB 1343, which was signed into law by former Gov. Jerry Brown. That bill set an initial compliance deadline of Jan. 1, 2020. In September, Gov. Newsom signed legislation that extended the training completion deadline for most employees to Jan. 1, 2021, but the extension did not apply to temporary, seasonal or other workers hired to work for less than six months. With the passage of SB 530, employers now have until Jan. 1, 2021, to provide the required sexual harassment prevention training to all of their workers, whether full-time or temporary.

Employer action: Because implementing new training requires time to research and hire a qualified trainer as well as time to complete the training, employers should plan to train all workers before the end of 2020 to be compliant with the new law by the January 2021 deadline. CDA has covered the new training requirements in detail in the Update and on cda.org.

Paid Family Leave expansion

Beginning July 1, 2020, Paid Family Leave benefits under California’s State Disability Insurance program will increase from the current six weeks to eight weeks as required by SB 83.

Specifically, the bill provides for wage replacement benefits for up to eight weeks to workers who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or adoption placement.

Employer action: Employers will need to update their practice policies by July 1, 2020, to reflect the benefit change.

Failure to pay wages: Remedies, penalties, contract wages

Employees seeking wages owed to them are authorized under AB 673 to bring a legal action either to recover statutory penalties against their employer or to seek to enforce civil penalties under the Private Attorneys General Act. The employee cannot take both actions for the same violation. The law takes effect Jan. 1, 2020.

In addition, SB 688 extends the state Labor Commissioner’s authority to cite an employer’s failure to pay minimum wages under a contract. The Labor Commissioner can cite an employer for failing to pay wages less than the wage set by contract in excess of the minimum wage.  The employer can contest the citation by posting a bond, but the bond will be forfeited if the employer loses.

Employer action: Employers are obligated to pay timely wages in accordance with California’s employment laws. Considering the potential for sizable penalties, employers should review employee classifications, payday practices and final pay laws to ensure compliance with these laws.

Living organ donation

Employers of 15 or more employees are required beginning Jan. 1, 2020, to provide additional unpaid leave time to an employee for the purpose of organ donation. The unpaid leave of absence cannot exceed 30 business days per year, and employees are required to first use all available sick leave before taking the unpaid leave. Current law provides 30 days paid leave for the purpose of organ donation. The new law allows for an extension of that leave by requiring the employer to grant an additional 30 days of unpaid leave to any employee who donates an organ to another person in a one-year period.

Employer action: Employers will need to update their workplace policies to reflect the benefit change.

Privacy

The California Consumer Privacy Act enacted in 2018 changed the consumer data collection rules, allowing consumers to know about and request deletion of data that businesses collect about them. The CCPA’s broad language includes a business’s employees and job applicants, which means employees, upon their request, could potentially have information from their personnel files deleted under the CCPA.

AB 25 excludes from the CCPA the deletion of employment data collected and used within the context of a person’s employment or application for employment. However, this exemption is only good for one year.

Employer action: Employers should comply with the CCPA provision dealing with deletion of employee data beginning Jan. 1, 2021, unless the statute is modified or extended.

Find a Sample Employee Manual and other employment resources in the CDA Practice Support resource library.