1, 2020 to January 1, 2021 . It also clarifies that new non-supervisory employees must be trained within six months of hire and new supervisory employees must be trained within six months of their assumption of a supervisory position. Employers who provided training in 2019 are not required to provide refresher training for two years from the time they were trained. Employees who were trained in 2018 must be trained again in 2020, and remain on a two year cycle. Previously, employers were required to provide seasonal and temporary workers with sexual harassment prevention training within 30 days or 100 hours of employment beginning January 1, 2020. SB 530 has pushed the deadline out one year so employers must provide training to seasonal and temporary workers beginning January 1, 2021 . SB 142 – Lactation Accommodation Existing law required employers to provide a reasonable amount of break time to pump breast milk and make reasonable efforts to provide an employee with a lactation room. SB 142 expands the lactation accommodation duties and responsibilities for employers. Specifically, employers must provide a lactation room or location, not a bathroom, that is: • In close proximity to the employee’s work area, shielded from view and free from intrusion; • Safe, clean and free of hazardous materials; • Contains a surface to place a breast pump and personal items; • Contains a place to sit; • Has access to electricity; and • Must also provide access to a working sink and a refrigerator suitable for storing breast milk close to the employee’s workspace. In addition, employers must develop and implement a lactation policy including publishing the policy in the employee handbook and providing the policy when an employee asks about or requests parental leave. Denial of lactation break time or space is tantamount to a violation of a rest period; subjecting the employer to a $100 penalty per violation, though lactation breaks are unpaid if they do not coincide with a regular rest period. There is a hardship exemption for employers with 50 or fewer employees. SB 530 – Sexual Harassment Prevention Training for Seasonal Workers
agreements, it is recommended that they include a cover page with the agreement highlighting the mutual benefits of arbitration compared to prosecuting their claims in court. A business coalition of the U.S. Chamber of Commerce, National Retail Federation and others has filed a lawsuit in federal court challenging the AB 51 on the basis that it is preempted under federal law. Although the statute expressly states that the law does not intend to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (FAA), most practitioners believe it will not survive federal preemption in its current form. Former Governor Jerry Brown vetoed similar attempts by the legislature on the grounds they “plainly violate federal law.” California employers are left with three options: abandon arbitration agreements entirely; continue requiring of arbitration agreements, and argue that AB 51 is preempted by the FAA; or present arbitration as a voluntary option for employees. Employers should consult with legal counsel regarding the implications of AB 51. California law requires the employer to pay the arbitration fees for employment disputes, which can run between $40,000 and $80,000. SB 707 provides that the drafting party (the employer) must pay the fees necessary to commence or continue arbitration within 30 days after they are due, or be deemed to have materially breached the agreement. Employers who do not timely pay their arbitration fees will be found in default of the arbitration agreement and will have waived their right to compel arbitration. If that happens, the employee can force the matter to court or compel the arbitration and be awarded attorneys’ fees and costs. The employee can also be awarded monetary sanctions or evidentiary or terminating sanctions, which is akin to forfeiting your defenses or the entire case. Employers who fail to pay their arbitration fees on time going forward do so at great peril. AB 749 – No “No Rehire” Agreements AB 749 prohibits inserting “no rehire” clauses into settlement agreements with “aggrieved persons” (employees) who have filed a claim against the employer. An “aggrieved person” is defined by the statute as someone who has filed a claim against the employer in court, before an administrative agency, in an alternate dispute resolution SB 707 – Untimely Payment of Arbitration Fees Voids Agreement
forum or through the employer’s internal complaint process. The new law does not apply where the employer has made a good faith determination that the employee engaged in sexual harassment or sexual assault or if there is a “legitimate non-discriminatory or non- retaliatory reason.” AB 9 – Statute of Limitations for FEHA Claims Before going to court to pursue an alleged FEHA claim, employees must file a complaint with the California Department of Fair Employment and Housing (DFEH). Until now, employees had one year to file a claim with DFEH for alleged FEHA violations or risk having the claim tossed as time barred. AB 9 extends the statute of limitation to three years. Last year, a similar bill (AB 1870) was vetoed by Governor Brown. This means that employers must be even more scrupulous in documenting complaints of harassment, discrimination and retaliation, as claims may filed for the first time up to three years after memories have faded and witnesses have moved on. AB 673 – Penalties for Late Payment of Wages Prior to this bill’s passage, the Labor Commissioner could recover a civil penalty of $100 per employee for the initial violation and $200 plus 25% of the late wages for subsequent violations, for failure to timely pay wages. Now, AB 673 gives employees the right to bring an action before the Labor Commissioner to recover penalties against the employer OR seek to enforce civil penalties under PAGA, but not both. SB 688 – Expansion of Labor Commissioner’s Authority Previously, the Labor Commissioner could seek penalties for underpayment of wages only if the wages fell below the minimum wage. SB 688 allows the Labor Commissioner to pursue actions against employers for failure to pay “contract wages,” which is defined as wages based on an agreement, even if all hours paid were compensated at or above the applicable minimum wage. SB 778 – Sexual Harassment Prevention Training Last year, SB 1343 expanded the required sexual harassment prevention training to smaller employers (those with five or more employees) and required training be provided for all employees, not just supervisors. SB 778 delays implantation of SB 1343 from January
36 Western Grower & Shipper | www.wga.com JANUARY | FEBRUARY 2020
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