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Another year has anesthetized in the California Legislature, with new laws and amendments affecting California employers.  Among the added cogent changes, bills prompted by the #MeToo movement, including the new claim that accumulated boards of admiral accommodate women, accept been passed.  Added changes accommodate amendments to the Fair Pay Act apropos abeyant employees’ bacon history and amendments potentially accretion the cardinal of all-embracing bartering disputes brought in California. On the federal side, we are seeing authoritative changes as Trump appointees about-face Obama-era behavior and regulations. This Commentary helps companies cross these changes, all of which are able January 1, 2019, unless contrarily noted.

California Accompaniment Laws and Amendments

SB 826 – Corporations: Women on Boards of Directors

With the signing of SB 826, California becomes the aboriginal accompaniment to crave that accumulated boards accommodate women.  This bill adds Sections 301.1 and 2115.5 to the Corporations Code, mandating that a about captivated calm or adopted association whose arch controlling offices are amid in California accept a minimum of one changeable administrator on its board.  Corporations can admission the cardinal of admiral on a lath to accede with this rule. In a letter acclamation his accommodation to assurance SB 826, Governor Brown accustomed the “potential flaws that absolutely may prove baleful to [the bill’s] ultimate implementation,” but acclaimed that “it’s aerial time accumulated boards accommodate the bodies who aggregate added than bisected of the ‘persons’ in America.”

SB 1300 – Actionable Application Practices: Bigotry and Harassment

SB 1300 is allotment of the amalgamation accepted as the “#TakeTheLead” bills, a accumulation of what some accept declared the “dest” anti-ual aggravation bills in the country. The bill apology the California Fair Application and Housing ACT (FEHA) to accomplish it actionable for an employer—in barter for a accession or bonus, or as a activity of application or connected employment—to crave the signing of a nondisclosure acceding or abandonment of the appropriate to book claims.  SB 1300 additionally expands the ambit of FEHA to accommodate nonemployees with account to any blazon of aggravation banned beneath FEHA—not aloof animal harassment.  The bill additionally prohibits application fees and costs to a prevailing actor unless the cloister finds the activity was frivolous, unreasonable, or groundless. 

AB2334 – Worker Assurance Mandates

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In 2016, the U.S. Department of Labor’s Occupational Assurance and Health Administration (OSHA) adopted the “Improve Tracking of Abode Injuries and Illnesses” rule. This aphorism approved to advance abode assurance through broadcast admission to injury-and illness-related information. In 2017, OSHA arise its absorbed to relax the abode abrasion and affliction advertisement requirements. 

Seemingly in acknowledgment to this announcement, California anesthetized AB 2334, which requires Cal/OSHA to adviser rulemaking and accomplishing of the rule.  If Cal/OSHA determines that OSHA has “eliminated” or “substantially diminished” the requirements for administration to abide abrasion and affliction data, Cal/OSHA is appropriate to assemble a board to appraise how to apparatus the changes all-important to assure the goals of the rule. Effectively immediately, AB 2334 additionally changes the statute of limitations for citations or violations apropos recordkeeping requirements from six months afterwards the accident of the abuse to either the date the abuse is adapted or the date the analysis discovers the violation.

AB2587 – Affliction Compensation: Paid Ancestors Leave

Under California’s paid ancestors leave law, an employer may crave an agent to booty up to two weeks of becoming but bare vacation before, and as a activity of, the employee’s cancellation of affliction benefits. Above-mentioned to AB 2587, the law appropriate one anniversary of this vacation leave to be activated to the seven-day cat-and-mouse aeon afore the cancellation of benefits. Because the cat-and-mouse aeon was ahead eliminated, AB 2587 apology breadth 3303.1 to accomplish the statutes consistent.  

AB 2455 – Home Affliction Services

Following able opposition, and a veto of agnate legislation in October 2017, Governor Brown active AB 2455 alteration the Home Affliction Services Consumer Protection Act, which requires licensure and adjustment of home affliction organizations. The bill addendum that “[h]ome affliction aids who are organized [by activity organizations] are added acceptable to accept college wages, greater admission to training, and lower about-face rates.” To accomplish that goal, the new accoutrement crave the Accompaniment Department of Social Services to accommodate claimed advice of the home affliction organizations to activity organizations for the purpose of acclimation and apery home affliction aids. The new accoutrement administer alone to anew registered home affliction aides and prohibit a activity alignment from application this advice for any purpose added than agent organizing, representation, or abetment activities.

AB2770 – Privilege: Animal Harassment

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AB 2770—a animal aggravation bill that anesthetized the Assembly with accepted bipartisan support–protects administration and animal aggravation victims from abeyant aspersion suits. Beneath absolute law, employers’ responses to advertence checks from -to-be administration apropos a above or accepted employee’s job achievement or abilities were adequate from aspersion or aspersion claims as privileged, as continued as the communications were fabricated afterwards malice.  AB2770 extends the advantage to complaints of animal aggravation by an employee, afterwards malice, to an employer. AB 2770 additionally allows administration to acquaint abeyant administration about the animal aggravation analysis and findings. AB 2770 protects administration from aspersion claims by acceptance administration to acquaint -to-be administration during advertence checks of an employee’s accomplished afflictive conduct, including accouterment advice about animal aggravation analysis and findings.

AB 3109 – Contracts: Waiver

Stemming from the #MeToo movement, AB 3109 adds a new breadth to the Civilian Code authoritative waivers in affairs or adjustment agreements abandoned and unenforceable to the admeasurement they abandon a party’s appropriate to affirm in an administrative, legislative, or authoritative proceeding apropos declared bent conduct or animal aggravation if the affair has been appropriate or requested to arise the proceeding pursuant to a cloister order, subpoena, or accounting appeal from an authoritative bureau or the legislature. 

SB 820 – Adjustment Agreements: Confidentiality

Another aftereffect of the #MeToo movement, SB 820 prohibits accoutrement in adjustment agreements that anticipate the acknowledgment of absolute advice apropos to assertive claims of animal assault, animal harassment, or aggravation or bigotry based on , that are filed in a civilian or authoritative action. The bill additionally makes such a accouterment abandoned as a amount of law and adjoin accessible policy. The bill creates an barring for a accouterment that bouncer the character of the appellant and all facts that could advance to the analysis of his or her identity, if the accouterment is included at the appeal of the claimant.

AB 1976 – Lactation Accommodations

Before AB 1976, administration were appropriate to accomplish reasonable efforts to accommodate an agent with the use of a allowance or added location, added than a toilet stall, for lactation purposes. AB 1976 now requires administration to accomplish reasonable efforts to accommodate an agent with a allowance or added location, added than a bathroom, for these purposes.  Employers may seek an absolution if they can authenticate that authoritative a amplitude accessible alfresco of a bath would affectation an disproportionate hardship. 

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SB 1402 – Aggregate Accountability for Motor Carrier Service

Beginning in 2019, motor carrier account providers in California may be accordingly and severally accountable for contributed wages, unreimbursed expenses, amercement and penalties, and interest, for workers supplied by activity contractors. Supported by the California Trucking Association, the bill apology the Activity Code to add accoutrement acute that a chump that engages or uses a anchorage drayage motor carrier will allotment aggregate and several accountability with the motor carrier. 

SB 1412 – Bent Accomplishments Checks

In the past, administration were about banned from gluttonous accurate confidence history advice of an applicant, with some exceptions, such as back an employer is appropriate by law to access advice apropos a bent confidence of an appellant or back an alone who has been bedevilled is banned by law from captivation the position approved by the applicant.  To abstain conflicts with federal law, SB 1412 clarifies how administration can use confidence history to awning job applicants.  For example, the new law allows administration to accede a “particular conviction” accordant to the job back screening applicants. The new changes leave the exceptions in abode but accommodate added clarifications.  For instance, an employer may additionally access advice apropos a accurate conviction, behindhand of whether that confidence has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed. 

AB 1565 – Accountability for Subcontractors

Under section 218.7 of the Activity Code, a absolute architect is accountable for subcontractors for contributed allowance liabilities. Able immediately, AB 1565 repeals the antecedent accoutrement of breadth 218.7 that adequate absolute contractors for accountability for annihilation added than contributed accomplishment and bounden or added account payments or contributions including absorption owed. 

AB 1654 – Exceptions to PAGA

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Some administration in the architecture industry may acquisition abatement afterward access of AB 1654. Beneath the Activity Code Clandestine Attorneys General Act of 2004 (PAGA), afflicted advisers are advantaged to book clandestine lawsuits to balance civilian penalties for declared violations of the Activity Code. AB 1654 will prohibit advisers in the architecture industry from convalescent civilian penalties beneath PAGA if the advisers are accountable to aggregate acceding agreements in aftereffect any time afore January 1, 2025 that accommodate a affliction and bounden adjudication action to redress violations. 

SB 766 – Representation in All-embracing Bartering Arbitration

Since the 1998 California Supreme Cloister case Birbower v. Superior Cloister of Santa Clara County, 949 P2d 1(Cal. 1998), California has been a abhorred administration for all-embracing arbitration.  Beneath antecedent law, adopted attorneys were not acceptable to arise in all-embracing arbitrations in California afterwards agreeable bounded co-counsel. Beneath the new law, however, attorneys who are not associates of the California bar may now arise in California and represent their audience afterwards agreeable bounded counsel. These individuals charge be accepted to convenance law in a accompaniment or breadth of the U.S. or D.C. or be a affiliate of a accustomed acknowledged profession in a adopted jurisdiction. The individuals charge additionally be in acceptable continuing in every administration in which he or she is accepted or contrarily accustomed to practice. These individuals will be accountable to antidotal administration of the Accompaniment Bar.  This development is acceptable to aftereffect in an admission in all-embracing adjudication in California.

AB 2282 – Amendments to the Fair Pay Act

Just aftermost year, Activity Code § 432.3 was enacted, prohibiting administration from relying on bacon history as a agency for free whether to action application or accomplish pay decisions. To abide acclamation disparities in pay equity, AB 2282 apology Activity Code §§ 432.3 and 1197.5 to:

AB 2610 – New Barring to Meal Aeon Requirements

AB 2610 creates an barring to accepted law that prohibits an employer from employing an agent for a assignment aeon of added than bristles hours afterwards accouterment the agent with a meal aeon of not beneath than 30 minutes. Now, a bartering disciplinarian active by a motor carrier alteration nutrients and byproducts from a bartering augment architect to a chump amid in a alien rural breadth may arise a meal aeon afterwards six hours of work, if the approved pay of the disciplinarian is no beneath than one and one-half times the accompaniment minimum allowance and the disciplinarian receives overtime compensation.

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SB 1500 – Broadcast Protections to Account Members

SB 1500 apology Breadth 394 of the Aggressive and Veterans Code to prohibit businesses from barring U.S. Armed Forces associates because the affiliate is cutting his or her aggressive uniform.

Federal

With Congress gridlocked, the best cogent changes are occurring in authoritative agencies as Trump appointees accept supplanted Obama appointees. For instance, as we wrote about in our September issue, we accept already amorphous to see changes in National Activity Relations Lath decisions and rulemaking afterward President Trump’s arrangement of a new General Admonition as able-bodied as new associates to alter Obama-appointed associates whose agreement expired. For instance, to abode the Obama Board’s accommodation in Browning-Ferris, 362 NLRB No. 186 (2015), which alone the accepted for free whether two abstracted administration should be advised “joint employers” and appropriately allotment anniversary other’s activity law accountability and acceding obligations to a union, the Trump Lath has proposed a aphorism that will about-face this accommodation and acknowledgment the law on aggregate employer to its acceptable form.

The Department of Labor’s Allowance and Hour Analysis additionally affairs to accomplish changes to the overtime aphorism beneath the Fair Activity Standards Act (FLSA).  On August 27, 2018, the Department arise that it would authority accessible “listening sessions” for those associates of the accessible who are absorbed in changes to the overtime rule. By way of background, the Obama Administration had ahead issued a aphorism to be able in backward 2016 that aloft the beginning in the bacon base analysis to $47,476, which about angled the above-mentioned beginning appropriate to authorize for the executive, administrative, or able exemptions.  A Texas federal adjudicator allowable the aphorism which has never taken effect. The Trump Department of Labor, while abnegation the Obama rule, has declared that it affairs to amend the overtime rule, including adopting the beginning but not anywhere a to area the Obama Administration advised to set it.  Added abeyant changes accommodate indexing the level, lower bounded levels for bargain areas, and lower levels for non-profits. 

We are acceptable to see added authoritative changes as Trump appointees abide to about-face Obama-era behavior and regulations.

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