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2018 Newsflash! Employment Law

2018 NewsFlash Employment

No Rest for the Oil Facility Emergency Responder

In Augustus v ABM Security Servs., Inc. (2016) 2 C5th 257, a case involving security guards, the California Supreme Court held that employees must be completely relieved of work obligations during their rest breaks, and that state law prohibits “on-duty” and “on-call” rest breaks. The Legislature has carved out a small exception for employees who hold safety-sensitive positions at facilities involved in the processing, refining, transport, or storage of crude oil or petroleum products. Those employees can be required to carry a communication device and respond to an emergency even when “on break,” but must be paid for any rest period interrupted or missed. See Lab C §226.75 (added by Stats 2018, ch 584, effective September 20, 2019).

For more on rest break requirements, check out CEB’s Wage and Hour Law and Litigation §4.16.

No Meal for Animal Food Truckers

The meal break rule in Lab C §512(a) has a new exception for some commercial drivers of animal food. Why the new exception? “Commercial drivers are frequently dealing with time sensitive deliveries, may not be in a position to safely exit the roadway and take a meal period, and may wish to take a meal period after a specific delivery has been concluded.” See Lab C §512(b)(2) (added by 2018 Stats ch 148, effective January 1, 2019).

To learn more about meal break requirements, see CEB’s Wage and Hour Law and Litigation §§4.13–4.15.

New Accommodations for Nursing Mothers

When Lab C §1031 was originally enacted—requiring employers to provide a place for nursing mothers to express their milk at work—a popular response must have been, “Hey, use the bathroom!” The Legislature has rejected that response with a new law requiring employers to make reasonable efforts to provide a room or other location in close proximity to the employee’s work area—other than a bathroom—for this purpose. If this isn’t feasible, a temporary location is okay if it’s private and free from intrusion and used only for lactation purposes. See Lab C §1031 (amended by Stats 2018, ch 940, effective January 1, 2019).

For more on this topic, see CEB’s California Wage and Hour Law and Litigation §4.35A.

#Metoo Ripple Effect on Contracts and Settlement Agreements

The #MeToo movement has brought the issue of sexual harassment in the workplace front and center, and lawmakers have responded. In California, at least 20 bills were introduced in the last session to combat sexual misconduct and hold offenders accountable. One new law declares that a provision in a contract or settlement agreement that waives a party’s right to testify in a proceeding on alleged criminal conduct or alleged sexual harassment by the other party to the contract or settlement agreement, or its agents or employees, is void and unenforceable. See CC §1670.11 (added by Stats 2018, ch 949, effective January 1, 2019).

Another new law states that a settlement agreement in a civil action cannot prohibit the disclosure of factual information related to a claim of workplace harassment or discrimination based on sex (except for the name of the claimant). See CCP §1001 (added by Stats 2018, ch 953, effective January 1, 2019).

On settlement agreements generally, see CEB’s Wrongful Employment Termination Practice chap 12. For more on sexual harassment litigation, see chap 4 of that practice guide.

Confidentiality Provisions in Releases and Nondisparagement Agreements

A new law prohibits an employer from requiring an employee to sign a release of a claim or right under the Fair Employment and Housing Act (FEHA) in exchange for a raise or bonus or as a condition of employment or continued employment. An employee also can’t be required to sign a nondisparagement agreement or other document that denies the employee the right to disclose information about unlawful acts in the workplace, including sexual harassment. See Govt C §12964.5 (added by Stats 2018, ch 955, effective January 1, 2019).

On settlement agreements generally, see CEB’s Wrongful Employment Termination Practice chap 12.

Former Employer’s Statements About Sexual Harassment Are Now Privileged

Existing law makes certain communications privileged and therefore protected from civil action, including those about the job performance or qualifications of a job applicant that are made without malice by a current or former employer to a prospective employer. A new law extends that privilege to complaints of sexual harassment by an employee. The privilege also permits a current or former employer to answer whether or not the employer would rehire a current or former employee and whether the decision to not rehire is based on the employer’s determination that the former employee engaged in sexual harassment.

See CC §47(c) (amended by Stats 2018, ch 82, effective January 1, 2019). For more on privileged communications, see CEB’s Advising California Employers and Employees §§1.32, 13.75.

More Sexual Harassment Prevention Training

For the past several years, employers with 50 or more employees have been required to train supervisors every two years about preventing and dealing with sexual harassment in the workplace. That requirement now extends to every employer in California subject to FEHA (i.e., all employers with five or more employees). It also extends to all employees, not just supervisors. Supervisors must get two hours of training, and all other employees one hour of training. Employers have until January 1, 2020 to comply. See Govt C §12950.1(a) (amended by Stats 2018, ch 956).

For more about sexual harassment prevention training, see CEB’s Advising California Employers and Employees §9.61.

Hotels and Motels Must Provide Human Trafficking Training

To help combat human and sex trafficking, hotels and motels must provide training in trafficking awareness to each employee who is likely to come into contact with victims of trafficking. The deadline for doing this is January 1, 2020. See Govt C §12950.3 (added by Stats 2018, ch 842).

For more on this topic, see CEB’s Drafting Employment Documents for California Employers §9.57A.

New Protections for “the Last American Sharecroppers”

Drayage drivers at California ports—a largely immigrant workforce—are routinely misclassified as independent contractors when they in fact work as employees. Rampant misclassification of drivers contributes to wage theft and leaves drivers in a cycle of poverty, due to the fact that they have to finance their own trucks. For these reasons, the Legislature declared them “the last American sharecroppers.” A new law will force customers of certain port drayage motor carriers to share liability with the carrier for its failure to comply with classification laws with respect to drayage drivers. See Lab C §2810.4 (added by Stats 2018, ch 702, effective January 1, 2019).

On independent contractors generally, see CEB’s Action Guide, Working With Independent Contractors, Leased Workers, and Outsourcing.

New Restrictions on Attorney Fees in Feha Actions

A new law provides that, notwithstanding CCP §998, a prevailing defendant in a FEHA action cannot be awarded fees and costs unless the court finds that the action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” See Govt C §12965(b) (amended by Stats 2018, ch 955, effective January 1, 2019).

For more on attorney fees in FEHA actions, see CEB’s Employment Damages and Remedies chap 8.

Attorneys Must Have Clients Sign a New Disclosure Before Mediations

Evidence Code §1119 provides that anything said, any admission made, or any writing prepared for mediation is inadmissible and protected from discovery in a subsequent proceeding. Clients are sometimes surprised to learn that this also means malpractice lawsuits against their own attorneys. To address this problem, attorneys must now get their clients to sign a disclosure before mediation, acknowledging that the clients understand the confidentiality restrictions. The statute provides a model disclosure for this purpose. See Evid C §1129 (added by 2018 Stats, ch 350, effective January 1, 2019).

On mediation of workplace disputes, see CEB’s Advising California Employers and Employees chap 20.

Apprenticeship Programs: The Cost of Discrimination

Under a new Labor Code provision, anyone who willfully discriminates in any recruitment or apprenticeship program on any basis protected by FEHA can be found guilty of a misdemeanor. See Lab C §3073.6 (added by 2018 Stats, ch 704, effective September 22, 2019). See also Lab C §3073.9 (added by 2018 Stats, ch 675, effective January 1, 2019), which expressly prohibits discrimination in any building and construction trades apprenticeship program.

On FEHA protections for persons in apprenticeship programs, see CEB’s Wrongful Employment Termination Practice §1.54A.

Legislature Declares Its Intent Re: The Laws on Harassment

The Legislature clarified what a claimant needs to show to sustain a harassment claim:

  1. Under Harris v Forklift Systems (1993) 510 US 17, 26, “the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment.” It’s enough to prove that a reasonable person subjected to the conduct would find that it made it more difficult to do the job.
  2. A single incident of harassing conduct is enough to create a triable issue about the existence of a hostile work environment.
  3. A discriminatory remark, even if made by a non-decisionmaker, may be relevant in showing a hostile work environment.
  4. The legal standard for sexual harassment should not vary by type of workplace.

See Govt C §12923 (added by Stats 2018, ch 955).

Employment Law