Pat Steet Ed.D., SHRM-SCP, SPHR, PHRca is the Legislative Director for Inland Empire SHRM. Pat provides regular updates on legislation, laws and cases effecting Human Resources.
DOL Final Rule Changing Salary Threshold for Exempt White-Collar Employees to Take Effect January 1, 2020
FLSA final rule takes effect on January 1, 2020 and raises the current minimum salary level for exempt employees from $455 per week or $23,660 annually, to $684 per week or $35,568 annually.
Hey Boss, I Need a Longer Leave
SB 83: Paid Family Leave
Paid Family Leave (“PFL”) currently provides benefits for up to six (6) weeks through California’s state disability insurance program to care for a seriously ill family member or to bond with a child within one year of the birth, adoption or foster care placement of the child. Beginning July 1, 2020, the law will extend PFL benefits from six (6) weeks to eight (8) weeks.
Give Me a Break!
SB 142: Lactation Accommodation
As of January 1, 2020, employers will now be required to provide a reasonable amount of break time to accommodate an employee who wants to express breast milk for her child “each time the employee has need to express milk.” It further requires an employer to provide an employee with the use of a room or other location in close proximity to the employee’s work area, other than a bathroom, that meets certain criteria specified in the law for the employee to express milk, in private and free from intrusion, including the requirement that the room or location be safe, clean, and free of hazardous materials, contains a surface to place a breast pump and personal items, contains a place to sit, and has access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump. The employer must also now provide access to a sink with running water and a refrigerator suitable for storing milk in close proximity to the employee’s workspace, or another cooling device suitable for storing milk, such as an employer-provided cooler, along with certain other requirements. In addition, the law requires employers to develop and implement a policy regarding lactation accommodation that includes certain elements specified in the law, including the employee’s right to request lactation accommodation and to file a complaint with the Labor Commissioner for any violation. Employers are also now required to distribute their lactation policy to new employees upon hiring and when an employee makes an inquiry about or requests parental leave. Employers should develop or expand their existing policies regarding lactation accommodation to comply with these new policy and distribution requirements, and should also review the physical locations at their worksites to ensure compliance with this new law and make any necessary changes.
Time is on My Side
AB 9: FEHA Statute of Limitations
The statute of limitations for filing charges of discrimination, harassment or retaliation with the California Department of Fair Employment and Housing (“DFEH”) for any claims under the FEHA is currently 1 year from the date of the alleged unlawful practice. Effective January 1, 2020 this new law expands the statute of limitations from 1 year to 3 years. The new law also defines the filing of a complaint to mean the filing of an intake form with the DFEH, which often occurs well prior to the actual filing of the formal complaint. Due to this expanded filing period employers may be required to defend significantly older claims than in the past and should consider reviewing and updating their record retention policies.
To Arbitrate or Not
AB 51: Prohibition of Most Mandatory Arbitration Agreements
As of January 1, 2020, employers cannot require applicants or employees in California to agree, as a condition of employment, continued employment, or the receipt of any employment-related benefit, to arbitrate claims involving violations of the California Fair Employment and Housing Act (FEHA) or the California Labor Code. The law also provides that an employer shall not threaten, retaliate, discriminate, or terminate any applicant or employee because of their refusal to sign an arbitration agreement or their right to file a civil action or to notify or file a complaint with any court, state agency or other governmental entity. The statute will not invalidate existing arbitration agreements that are otherwise enforceable under the Federal Arbitration Act (“FAA”), but it will apply to any contracts for employment entered into, modified or extended on or after January 1, 2020 that require arbitration. The statute does not apply to post-dispute settlement agreements or negotiated severance agreements, or to arbitration agreements that are entered into voluntarily and not as a condition of employment. However, an agreement that requires an employee to opt out of a waiver or take any affirmative action in order to preserve their rights is deemed a condition of employment. The new law also does not apply to a person registered with a self-regulatory organization as defined by the Securities Exchange Act of 1934 or applicable regulations. The statute provides for, in addition to any other available remedies, injunctive relief and reasonable attorneys’ fees to a prevailing plaintiff who enforces his or her rights under the statute. Violation of the law is a criminal misdemeanor and also an unlawful employment practice under the FEHA. This law is currently being challenged in federal court by various employer groups asserting that this state law is preempted by the FAA. However, because a violation of the new law is deemed a crime under California state law until a federal court rules otherwise, employers should review their existing arbitration policies and agreements to determine whether any changes need to be made with respect to new employees hired in 2020.
UPDATE 12/30/2019: Federal Court Blocks California’s Ban On Mandatory Arbitration Agreements
California employers just received a last-minute reprieve from complying with a newly enacted law that aims to prevent them from utilizing mandatory arbitration agreements with their employees – at least for now. A federal court just this morning granted a temporary restraining order requested by a coalition of business groups that presses pause on the new law before it could take effect on January 1. But the battle is just beginning, so California employers will want to pay particular attention to upcoming developments to ensure they are in compliance with the current state of employment arbitration agreement law.
Brief Background And Today’s News
As we recently reported, a coalition of business groups led by the U.S. Chamber of Commerce filed a lawsuit earlier this month seeking to block AB 51 from ever taking effect. That law, signed into effect in October, would make it unlawful for California employers to require applicants and employees to sign arbitration agreements beginning January 1, 2020.
The plaintiffs asked the court to grant a preliminary injunction blocking the enforcement of AB 51 pending proceedings in the lawsuit. They also filed a request for a Temporary Restraining Order (TRO), which would halt the law from being enforced while the litigation over the preliminary injunction request was taking place. Earlier today, the court granted the TRO, effectively preventing the state from enforcing AB 51 until the request for a preliminary injunction is decided.
At the time the law passed, we predicted that “the law could very well be blocked by a court before it ever takes effect” because “similar recent attempts at restricting arbitration have been struck down as conflicting with a strong federal law favoring it.” And that turned out to be exactly what happened. In this morning’s ruling, the court held that the plaintiffs have raised serious questions regarding whether the new law is preempted by the Federal Arbitration Act as construed by the United States Supreme Court. The court also noted that the plaintiffs’ “argument that allowing the statute to take effect even briefly, if it is preempted, will cause disruption in the making of employment contracts is also persuasive.”
Look for future legislative and legal updates soon.