January 1, 2020 may bring a number of significant changes to California law for public employers. Following the end of the Legislative Session on September 13, 2019, a number of proposed laws were passed by the Assembly and Senate and now await final approval by Governor Gavin Newson. He has until October 13, 2019 to sign or veto these remaining bills. The following are some of the ones we have been monitoring closely that can impact public agencies.
Assembly Bill (AB) 9 – Limitations period for Fair Employment and Housing Act Claims
The California Fair Employment and Housing Act (“FEHA”) prohibits discrimination, harassment, and retaliation in employment based on protected classifications such as race, national origin, sex, sexual orientation, religion, age over 40, disability, and medical condition, among others. Currently, an employee aggrieved by an alleged unlawful practice under the FEHA has one year from the date of such unlawful practice to file a verified complaint with the Department of Fair Employment and Housing (“DFEH”) or the claim would generally be time-barred. AB 9 would extend this time period to file such a complaint with the DFEH from one to three years for complaints alleging employment discrimination, as specified. The law would provide that the complaint’s operative date is when the intake form was filed with the DFEH. The new law would not revive lapsed claims, however. A similar version of this bill was vetoed last year by Governor Jerry Brown – AB 1870.
AB 749 Settlement Agreements and Prohibitions on Re-Hire
This new law would prohibit an employer who settles an employment dispute from including in the settlement agreement a provision that prohibits, prevents, or otherwise restricts a settling party that is an “aggrieved person” from working for the employer against which the aggrieved person has filed a claim. (For private entities, the agreement could not impose such a restriction as to any parent company, subsidiary, division, affiliate, or contractor of the employer.) An “aggrieved person” is defined as “a person who has filed a claim against the person’s employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process.” There is an exception if the employer has made a good faith determination that the person engaged in sexual harassment or sexual assault. The law would also clarify that an employer does not have to continue to employ or rehire a person if a legitimate nondiscriminatory or non-retaliatory reason exists for terminating or refusing to rehire. The law will provide that an agreement term that violates this prohibition, in an agreement entered into on or after January 1, 2020, is void as a matter of law and is against public policy.
Labor Code section 230 currently prohibits an employer from discriminating or retaliating against an employee who takes time off to obtain specified relief as a result of being a victim of domestic violence, sexual assault, or stalking. It also prohibits discrimination or retaliation against employees because of their status as a victim of domestic violence, sexual assault, or stalking. AB 171 would expand the law in two ways. First, it would expand the definition of “employer” to include any person employing another under any appointment or contract of hire and also expressly to include the state, political subdivisions of the state, and municipalities. Second, the bill would include victims of sexual harassment (and not just those of domestic violence, sexual assault, or stalking) within the category of protected persons. “Sexual harassment” would have the same meaning as in the California FEHA.
AB 171 would add a procedural protection as well. Commencing July 1, 2020, the new law would establish a rebuttable presumption of unlawful retaliation based on the employee’s status as a victim of domestic violence, sexual assault, sexual harassment, or stalking if an employer takes particular employment actions within 90 days following either the date the victim provides notice to the employer or the employer has actual knowledge of the status. The employer could rebut the presumption by evidence it had a nonretaliatory business reason for the adverse action at issue.
Another pending law, AB 1478, would allow persons to file private civil lawsuits for relief for violation of these provisions under Labor Code section 230. This would be an alternative to the person filing a complaint with the relevant state agency, the Division of Labor Standards Enforcement (“Labor Commissioner”).
Senate Bill (“SB”) 142 Employee lactation accommodations
This new law would require an employer to provide a lactation room or location that includes particular features, and that allows access to a sink and refrigerator in close proximity to the employee’s workspace, as specified. It would treat denial of reasonable break time or adequate space to express milk as failure to provide a rest period in accordance with state law (so that corresponding penalties apply). The law would prohibit discrimination or retaliation against employees for exercising rights under the law. The law would require employers to have policies regarding lactation accommodation and make them available to employees. A similar version of this bill was vetoed last year by Governor Jerry Brown – SB 937.
Our firm’s legislative update materials will continue to provide information on the status of these bills. It is always prudent to consult legal counsel about compliance with new laws in the context of labor and employment.