California Legislative Update: 6 Bills Employers Should Be Tracking

 

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 9, 2019
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California legislators have until Friday to pass any measures they are considering this session, and Gov. Gavin Newsom has until Oct. 13 to sign or veto bills. As usual, lawmakers in the Golden State are considering a number of workplace-related bills that would create compliance obligations for employers in the state.

This is Newsom's first year in office, "so there is an element of high drama as nobody really knows what action he might take on these legislative proposals," noted Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento.

We've rounded up articles and resources from SHRM Online and other trusted media outlets on the key bills employers should track as the legislative session ends. Here's an update on their status.

1. Clarifying Requirements for Anti-Harassment Training

Newsom has signed SB 778 into law, which clarifies certain aspects of California's new requirements that employers provide expanded training to employees to prevent sexual harassment. These requirements were enacted in 2018. The new law also extends to Jan. 1, 2021, the deadline for most employers to train supervisors who were not already subject to training requirements and to provide training to nonsupervisory employees.  

(SHRM Online)

2. Requiring Employers to Submit Pay-Data Reports

SB 171, which would have fought pay discrimination against women and minorities by requiring employers to submit pay-data reports, died in committee. Fiscal committees had until Aug. 30 to meet and report bills to the floor, but an Assembly fiscal committee failed to act on this bill. If passed, the bill would have required companies to analyze pay data by gender, race, ethnicity and job classification and then send the information to the state. The California Legislature's proposal coincided with developments at the federal level mandating that large employers submit pay-equity data to the Equal Employment Opportunity Commission.

(SHRM Online)

3. Banning Arbitration Agreements for Discrimination Claims

The purpose of AB 51, which would prohibit arbitration agreements for discrimination claims, is to prevent businesses from silencing workers who have experienced discrimination and colleagues who have witnessed the misconduct. "While AB 51 is pitched as a sexual harassment bill and has been inextricably linked by supporters to the #MeToo movement, the bill is actually much broader and would cover much more than just sexual harassment," Ebbink said. The bill states that employers could not require employees to "waive any right, forum or procedure" for employer violations of the California Fair Employment and Housing Act. Update: Both chambers have approved this measure and it will be sent to the governor for signature or veto.

(Fisher Phillips)

4. Codifying Dynamex and the ABC Test

The California Supreme Court's Dynamex decision last year unnerved many employers that rely on independent contractors. The court created a three-pronged "ABC" test to determine whether workers should be classified as employees or independent contractors, and AB 5 seeks to codify the test. Although the bill would exempt certain occupations—such as doctors, investment advisors and some direct sellers—gig-economy workers aren't included in the exemptions. The business community has been trying to change that, but the bill's sponsor, Assemblywoman Lorena Gonzalez, D-San Diego, doesn't want to exclude such workers from the bill's coverage. Update: Both chambers have approved this measure and it will be sent to the governor for signature or veto.

(SHRM Online)

5. Expanding Lactation-Accommodation Requirements

SB 142 would amend the California Labor Code and the Health and Safety Code to require additional lactation accommodations for breastfeeding employees. Among other requirements, employers would have to provide a lactation room with specific features, as well as access to a sink and refrigerator in near the employee's workspace. The bill would prohibit employers from discriminating or retaliating against employees who exercise their rights under the law. Employers would have to develop and implement lactation-accommodation policies and would face significant penalties for failing to comply with the bill's requirements. Employers with fewer than 50 employees would be able to seek an exemption if an obligation causes an undue hardship of "significant difficulty or expense." SB 142 would amend building codes to require new commercial buildings—and those undergoing certain tenant improvements costing over $1 million—to include designated lactation spaces for employees. Update: Both chambers have approved this measure and it will be sent to the governor for signature or veto.

(Ogletree Deakins)

6. Clarifying Whether the CCPA Applies to HR Data

The California Consumer Privacy Act (CCPA), which goes into effect Jan. 1, 2020, could impose substantial compliance burdens on and create significant class-action exposure for businesses that employ California residents and have more than $25 million in annual gross revenues. The compliance burdens and class-action risk, however, are not a "sure thing." This is because the act, as written, might not apply to employers at all. If enacted, AB 25 would remove HR data from the act's purview. The bill would exclude job applicants, employees and contractors from the definition of "consumer" if their personal information is collected and used solely within the context of their role as a job applicant, employee or contractor. If the legislative process does not produce relief, a regulatory clarification could do so, noted Philip Gordon, an attorney with Littler in Denver. Update: This bill has been approved by the Assembly and is still being considered by the Senate.

(SHRM Online)

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