A new calendar year generally brings with it a number of new laws that apply to California employers. The following brief overview highlights some new 2019 laws of which California employers should be aware.
Increase in Minimum Wage: As of January 1, 2019, the minimum wage for employers with 26 or more employees increased to $12.00 an hour (which also increases the minimum salary requirement for exempt employees to $4,160 per month which is $49,920 annually) and the minimum wage for employers with 25 or fewer employees increased to $11.00 an hour (which also increases the minimum salary requirement for exempt employees to $3,813.33 per month which is $45,760 annually). This increase is due to Senate Bill 3 enacted in 2016, which increases the minimum wage an hour a year, until it reaches $15.00, for all employers. Please remember that a number of municipalities also increased their minimum wage as of January 1, 2019.
Expanded Sexual Harassment Training Requirements: Currently employers with 50 or more employees need to provide harassment training to its supervisory employees. The law is now expanded. By January 1, 2020, employers with 5 or more employees (including temporary and seasonal employees) must provide harassment training to all employees – not just supervisory employees; and the training needs to be provided within 6 months from hiring. The mandatory harassment training for non-supervisory employees is for 1 hour; the mandatory harassment training for supervisory employees is for 2 hours. Training may be completed individually or as part of a group. Training may also be completed in shorter segments, just so long at the applicable hourly requirement is met. The California Department of Fair Employment and Housing (DFEH) is required to develop a 1 hour and a 2 hour online training video. Employers can either develop their own training, or use that developed by the DFEH. The DFEH is also required to develop a method so that people who complete the training will receive a certificate of completion. After January 1, 2020, this training has to be provided to all employees every 2 years.
Finally, beginning January 1, 2020, for seasonal and temporary employees, or employees hired to work fewer than 6 months, an employer must provide training to such employees within 30 days from their hire date, or within 100 hours worked, whichever occurs first.
Non-disparagement Agreement Limitations: Employers are now prohibited from requiring an employee to sign a non-disparagement agreement or any other document prohibiting an employee from disclosing information “about unlawful acts in the workplace,” including but not limited to sexual harassment. Any improper release or non-disparagement provision is now nullified due to it being contrary to public policy. This limitation, however, does not apply to a negotiated settlement agreement which resolves claims under California’s Fair Employment and Housing Act, filed by the employee in court.
Prohibition on Settlement Provisions Forbidding Disclosure of Sexual Harassment: It is now impermissible to have a settlement agreement provision which prevents the disclosure of “factual information related to a claim filed in a civil action or a complaint filed in an administrative action” regarding: (i) sexual assault; (ii) sexual harassment under the Unruh Act; (iii) workplace sexual harassment, sex discrimination or retaliation against a person for reporting sexual harassment or discrimination under FEHA; or (iv) harassment or discrimination based on sex, or retaliation, by the owner of a housing accommodation. Notably, this law does not prohibit a provision that precludes the disclosure of the settlement amount, nor a provision preventing the disclosure of the claimant’s identity if the claimant wants to maintain privacy.
Protections from Defamation regarding Disclosure and Investigation of Sexual Harassment: Amendments to California Civil Code 47(c) address concerns that fear of a potential defamation lawsuit may dissuade harassment complaints from being made or investigated, or dissuade former employers from informing prospective employers about a former employee’s sexually harassing behavior. The amendment protects statements regarding sexual harassment that are made “without malice” and are based upon credible evidence. Employers who provide information during a reference check involving sexually harassing behavior by a former employee are now also protected against defamation liability. Any subsequent communications by the employer to “interested persons” during the investigation are also protected.