Each year, Navigato & Battin compiles a list of California’s newly enacted labor laws which will go into effect in the New Year. For 2019, following another year of the #metoo movement, there are a number of new laws going into effect regarding sexual harassment in the workplace. In addition, the statewide minimum wage has once again increased. Among other things, this means that the salaries of all exempt employees should be reviewed to confirm that such employees meet the minimum applicable salary thresholds to maintain their exempt status.

Anti-Harassment Training Requirements

Government Code § 12950. This new law requires that for any company having five or more employees, every employee and supervisor must undergo anti-harassment training every two years. This is an expansion from the old law, which only required supervisors at companies with more than 50 employees to undergo such training. The Department of Fair Employment and Housing has currently published its interpretation of this law and states all employees must undergo this type of training in 2019, regardless of whether the company provided adequate training in 2018. In 2020, this requirement will be further expanded to include temporary or seasonal employees who must also undergo this training within 30 days of hiring or 100 hours worked.

Confidentiality in Sexual Harassment Claims

Code of Civil Procedure § 1001. We published an article on the passing of this law in more depth previously. This new law will make void any provisions in a settlement agreement relating to sexual harassment claims which call for confidentiality of the claims made against a company or its employees. This will include any settlements arising from civil or administrative claims of sexual assault, sexual harassment, gender discrimination, or retaliation. Certain limited portions of the settlements, however, may remain confidential.

Civil Code § 1670.11. In addition to eliminating the use of confidentiality provisions, settlement agreements may not include waivers of a party’s right to testify regarding criminal conduct or sexual harassment. This law was enacted in partial response to settlement agreements containing similar provisions which had been entered into between members of the U.S. Olympic Gymnastics team and the U.S. Gymnastics Association regarding Larry Nassar.

Civil Code § 47. This new law aims to protect victims of sexual harassment who file claims against their abusers, and bars defamation suits from being filed against them. Specifically, this new law adds protections for an employee’s complaints of sexual harassment to an employer based on credible evidence, made without malice, and communications between an employer and interested persons regarding a sexual harassment complaint. This law also provides protections to employers speaking about employees’ history with sexual harassment.

Pre-Employment Salary History

Labor Code §§ 432.3, 1197.5. Last year, a law was enacted which barred employers from asking candidates for their salary history. However, the law was ambiguous with respect to internal hires. The law has been amended to provide clarification about the applicability of this law to internal hires- a company which hires internally does not have to comply with the law barring any inquiry into compensation history and may inquire and use an internal candidate’s salary history. Additionally, employers are now able to inquire about a candidate’s “salary expectation” for a particular position, although employers should tread very carefully and be wary of asking anything further.

Private Lactation Location

Labor Code § 1031. We previously published an article on this new law. Employers were previously simply required to allow reasonable break time to accommodate employees who were breastfeeding. This new law now requires employers to provide use of a room or other location, other than a bathroom, for this purpose. An employer may be exempt from this requirement in situations of undue hardship.

Background Checks

Labor Code § 432.7. We previously published an article on this new law. This law forbids employers from utilizing criminal background checks or asking for a prospective employee’s criminal history until a conditional offer of employment has been made (and even then, specific procedures need to be followed). This rule does not apply to certain sensitive jobs, such as jobs at schools, where criminal background information is required pursuant to state or federal law. Even after a criminal background check is considered, an employer may only consider criminal convictions, and may not consider criminal arrests which do not result in convictions.

Minimum Wage

Labor Code § 1182.12. Minimum wage for companies with 25 or fewer employees is now $11.00 per hour, while for companies with 26 or more employees minimum wage has increased to $12.00 per hour. As stated above, exempt employees’ salaries should be reviewed to ensure the salaries are in line with this new minimum wage.