More changes for employment practices beginning in 2019

New requirements for sexual harassment prevention training

Gov. Jerry Brown by the Sept. 30 deadline signed a stack of bills that the California Legislature passed in 2018. Some of these new laws will affect employers and their employees as early as 2019.

Four new laws make small but important clarifying changes to existing laws concerning salary history requests, Paid Family Leave expansion, lactation accommodation and defamation protection. But a fifth law significantly changes the requirements of mandatory sexual harassment training — including who must provide it and when and how it’s provided to employees.

A summary of what employers need to know about these five new state laws is provided here. Employers should update certain relevant employee policies and other materials to reflect changes in the law.

Sexual harassment prevention training
(SB 1343 – signed into law Sept. 30)

No later than Jan. 1, 2020, employers who have five or more employees must provide at least two hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees within six months of hire or promotion. The law also expands sexual harassment training to include temporary or seasonal employees. After Jan. 1, 2020, each employer must provide sexual harassment training and education to each employee once every two years and to seasonal and temporary employees or any employee who is hired to work for less than six months within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first.

The Department of Fair Employment and Housing will develop or obtain two online training courses on the prevention of sexual harassment in the workplace in accordance with the provisions of the law. However, availability of these courses should not preclude employers from complying with the law by the Jan. 1, 2020, deadline. Employers can provide the training sooner through a qualified in-person classroom, an individualized, interactive and computer-based e-learning course or real-time webinar.

Employers should update their discrimination, harassment and retaliation prevention policy to reflect the new training requirements.

The new sexual harassment training requirement will be covered in more detail in the January issue of the CDA Update.

Lactation accommodation
(AB 1976 – signed into law Sept. 30)

Under current state law, an employer must provide a location other than a toilet stall for an employee to express breast milk. Section 1031 of the Labor Code has now been updated to specify that employers should provide a location other than a bathroom.

Employers under the new law must “make reasonable efforts to provide an employee with use of a room or other location, other than a bathroom, in close proximity to the employee’s work area, for the employee to express milk in private.” The location provided may be temporary if the employer is unable to provide a permanent lactation location because of operational, financial or space limitations as long as it is private, is only used for lactation purposes while the employee expresses milk, is free from intrusion and otherwise meets the requirements of state law concerning lactation accommodation.

Employers should update their employee policy to reflect the new lactation accommodation requirements.

Paid Family Leave
(SB 1123 – signed into law Sept. 27)

The Paid Family Leave program is expanding on Jan. 1, 2021, to offer benefits to any employee who takes time off to attend to situations (qualifying exigencies) related to the covered active duty status of the employee’s spouse, registered domestic partner, child or parent who is a member of the U.S. Armed Forces. These situations can include time off for official military ceremonies, briefings, changes to child care arrangements, financial or legal obligations, counseling or spending time with the covered service member during rest and recuperation leave.

This new law does not create a right to take a protected leave of absence, merely the ability to collect PFL benefits (after Jan. 1, 2021) if the employee does take the time off. The right to take a protected leave for the “qualifying exigencies” will depend on whether the employee is eligible under the Family Medical Leave Act. FMLA applies to employers of 50 or more employees.

If the employee is not covered by FMLA, an employer could provide leave under a personal leave-of-absence policy, but is not required to do so. 

No action is required by employers at this time, but they will need to update their employee policies closer to Jan. 1, 2021.

CDA Practice Support offers a downloadable “Sample Employee Manual” that includes the updated information. It’s available in the CDA Practice Support resource library.

Salary history
(AB 2282 – signed into law July 18)

Ambiguities in last year’s salary history ban have been clarified through this new law. The salary history ban (AB 168) prohibits employers from seeking salary history information, including compensation and benefits, when determining whether to hire the applicant or how much to pay the applicant. The new law amends the Labor Code to specify that:

  • An employer may now ask for an applicant’s salary expectations for the position being applied for.
  • Only external applicants (not current employees) are entitled to request a pay scale for the position they are applying for, but only after completing an initial interview.
  • The pay scale provided only needs to include salary and hourly wage ranges.

CDA Practice Support recommends that employers (1) review and update their applications to ensure they do not include prior salary inquiries and (2) conduct a market salary survey when determining compensation for each position. CDA Practice Support offers a downloadable sample “Application for Employment” that is compliant with the new law. It’s available in the CDA Practice Support resource library.

Defamation protection
(AB 2770 – signed into law July 9)

Employers and victims of sexual harassment receive increased protections from liability in defamation lawsuits under this new law. The law also increases protection from liability based on injury to an alleged harasser’s reputation after a complaint of sexual harassment has been made.

The Civil Code will be amended to add three types of communications regarding sexual harassment that are now considered “privileged” communications —meaning they cannot be used as a basis for defamation claim unless they are made with malice. Malicious statements are those made with complete disregard for the truth or are false accusations made out of spite, ill will or hatred toward the alleged harasser.

Specifically, the new law protects:

  1. Reports of sexual harassment made by an employee to their employer based on credible evidence and without malice.
  2. Communications made without malice regarding the sexual harassment allegations between the employer and “interested persons,” such as witnesses or victims.
  3. Nonmalicious statements made to prospective employers as to whether a decision to rehire or not would be based on a determination that the former employee engaged in sexual harassment.

The article “Reference checks: A small but important piece of the hiring process” published in September explains some additional employer protections.

Look for more information about the new mandatory sexual harassment training in the January 2019 CDA Update. Find employment-related resources, including any cited in this article, at cda.org/practicesupport.

Related Items

All employers in California must meet workplace-posting obligations, which include printing and posting current mandatory notices where employees can see them. Employers should be aware of two required notices updated and released recently by the Employment Development Department and the Department of Fair Employment and Housing, as well as updated notices on transgender rights in the workplace, protection of safety and health on the job and more.

Having an up-to-date, legally compliant manual can play a critical role in helping employers follow new employment laws and manage employees in the practice. CDA Practice Support is pleased to share that the Sample Employee Manual, a downloadable resource for members, has seen a transformation in 2018. Aside from a reorganization of the contents, the revised manual contains more than a dozen new and revised policies.