NEWS & ISSUES

New Employment Laws that will Affect Employers

By: Jeanne Rosenberg

Governor Jerry Brown has signed all the legislative bills for 2018, his last as Governor of California, clearing the way for newly elected Governor Gavin Newsom to take his place next year. We now provide you with a compilation of employment related laws effective January 1, 2019, except when otherwise indicated.

AB 1066: Phase In of Overtime for Farmworkers

AB 1066, which went into effect in 2017, phases in new overtime requirements for agricultural employers, the first of which begins as the clock strikes midnight at the New Year.  Starting in 2019, AB 1066 lowers the 10-hour-day threshold for overtime to 9.5 hours in a day and 55 hours per week when overtime pay is requiredThis only applies to employers with 26 or more employees.

Not only does this affect overtime wages, but also causes an adverse effect to employees on the minimum amount of paid sick leave employers are required to offer. Under California’s paid sick leave law, employees should be given the greater of either 24 hours or three days of PSL, regardless of whether the frontloading or accrual method is selected. This means that employees whose regular work day are 9.5 hours would get a minimum of 28.5 hours of paid sick leave per year. 

For more information regarding this bill and its gradual phase-in to the standard 8 hour day/40 hour workweek model, see our previous post here.

SB 1300: Expanded Fair Employment and Housing Act

As we previously reported hereemployers will be prohibited, with certain
exceptions, from requiring an employee to sign a release of claims under the Fair Employment and Housing Act in exchange for a raise or bonus, or as a condition of employment or continued employment. Employers are also prohibited from requiring an employee to sign a non-disclosure agreement that aims to deny the employee the right to disclosure of unlawful acts in the workplace, including sexual harassment.

SB 820: Settlement Disclosure of Sexual Harassment Claims

Settlement agreements entered into will prohibit and make void any provision that prevents the disclosure of factual information related to civil or administrative complaints of sexual harassment, sexual assault, workplace harassment, or discrimination based on sex. As previously reported here, this bill does not prevent parties from mutually agreeing to settle, but it will prohibit individuals and/or businesses from requiring a claimant to remain silent about the alleged assault/harassment as a condition of settlement. Further, SB 820 expressly authorizes provisions that (1) preclude the disclosure of the amount paid in settlement of a claim and (2) protect the claimant’s identity and any fact that could reveal the identity, so long as the claimant has requested such anonymity and the opposing party is not a government agency or public official.

AB 3109: Disclosure of Sexual Harassment

AB 3109 makes a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in any proceeding concerning alleged criminal conduct or sexual harassment. In many settlement/severance agreements, it is not uncommon to include a provision that a former employee will not participate in any actions against the employer or will not make any disparaging remarks against the employer. Now, any provision that does not allow an employee to testify when they are required by subpoena or requested in writing by an administrative agency or legislature will be void. This bill was previously reported here.

SB 1343: Expanded Duties for Employers Regarding Sexual Harassment Training

SB 1343 requires an employer of five or more employees to provide sexual harassment training within 6 months of assuming their position and once every two years thereafter. By January 1, 2020, all supervisors must receive at least two hours of training, and all nonsupervisory employees must receive at least one hour. For more information regarding this bill, see our previous post here.
AB 1976: Accommodation for Lactation
This bill requires employers to make reasonable efforts to provide workers with a use of a room or private area that is not a restroom to pump breast milk. Existing law required that employers only make a reasonable effort to provide both a lactation space that is not a bathroom stall. If an employer can demonstrate that providing a separate room (other than a bathroom) would create an undue hardship, an employer shall make reasonable efforts to provide an employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private. For more information regarding this bill, see our previous post here.

AB 1654: Expanded Exemption of PAGA Claims for Union Construction Employers

This bill exempts employers in the construction industry from claims under the Private Attorneys General Act of 2004 (“PAGA”) if the employees are covered under a valid collective bargaining agreement (“CBA”) in effect any time before January 1, 2025 that expressly provides for the wages, hours of work, and working conditions of employees. As previously posted here, this applies to any CBA in currently in effect until the CBA expires or January 1, 2028, whichever is earlier.

SB 1252: Right to Receive a Copy of Employment Records
Labor Code section 226 is amended to provide employees the right to receive a copy of their employment records. If requested by the employee, the employer must provide copies to the employee rather than require the employee copy the records on their own.

SB 224: Sexual Harassment Relationships Expanded to Venture Capital Industry
Civil Code section 51.9 is amended to expand the definition of sexual harassment under the Unruh Act, a California civil rights law that prohibits discrimination based on things like sex, race, religion, age and disability. The Unruh Act, in its previous form, prohibited sexual harassment between people who have a business relationship but don’t work for the same company and the plaintiff was not able to easily terminate the business relationship. Now, under SB 224, a plaintiff has a viable claim for sexual harassment if they prove, among other things, that the defendant holds himself or herself out as being able to help the plaintiff establish a business, service, or professional relationship with the defendant or a 3rd party. In addition, the amendment eliminates the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship.

Furthermore, to drive the point home, the statute has been amended to specifically include lobbyists, elected officials, directors, producers, and investors as examples of persons that can be subject to a claim for sexual harassment.

SB 1412: New Limits on Criminal Background Checks

Labor Code section 432.7 is amended to limit the exception for both public and private employers that are required by law to screen applicants using a criminal background check. The new law only permits inquiries about an applicant’s criminal history to a “particular conviction” that is relevant to the position sought by the applicant. Particular convictions is defined as “conviction for specific criminal conduct or a category of criminal offenses prescribed by [law] that contains requirements [and/or] exclusions…expressly based on that specific criminal conduct or category of criminal offenses.” Inquiries into particular convictions are only permitted in the following situations:

  • The employer is required by law to obtain information regarding the particular conviction of the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation;
  • The employer requires the applicant to possess or use a firearm in the course of his or her employment;
  • An individual with that particular conviction is prohibited by law from holding the position sought by the applicant, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation;
  • The employer is prohibited by law from hiring an applicant who has that particular conviction, regardless of whether that conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

SB 826: Women on Corporate Boards
By close of 2019, SB 826 requires public companies whose principal executive offices are located in California to have at-least one female director on its board. By the close of 2021, must comply with the following standards:

  • Four or fewer board members: minimum of 1 female director;
  • 5 board members: 2 female directors;
  • 6+ board members: minimum of 3 female board members.

For more information regarding this bill, see our previous post here.

SB 970: Human Trafficking

As previously posted here, by January 1, 2020 and every two years thereafter, hotels and motels must provide at least 20 minutes of training and education regarding human trafficking awareness to an employee who will likely interact or come into contact with victims of human trafficking, such as an employee who works in a reception area, performs housekeeping duties, help customers in moving their possessions, or drives customer.
COUNSEL TO MANAGEMENT:

There are a lot of new laws this year; please make sure to take the time to understand the implications of these laws and how they may affect your company. If you have any questions or concerns regarding the new bills or how to comply with their requirements, please do not hesitate to contact the experts at the Saqui Law Group.

Cal/OSHA Electronic Reporting

Cal/OSHA’s Emergency Regulations for Workplace Injuries require employers to electronically submit their 2017 Form 300A on the OSHA ITA Launch Website by December 31, 2018 to comply.  This regulation is in compliance with federal OSHA requirements.  Please visit the OSHA ITA Launch Website, for instructions https://www.osha.gov/injuryreporting/index.html. Should you need assistance, please contact Elda Brueggemann for step-by-step instructions.  

Air District Announces Opening of the FARMER Ag Truck Replacement Program

The San Joaquin Valley Air Pollution Control District (Air District) is pleased to announce the formal opening of the FARMER Ag Truck Replacement Program funding opportunity.  Earlier this year, the California Air Resources Board (CARB) announced that funding opportunities would be made available through the Funding Agricultural Replacement Measures for Emission Reductions (FARMER) program.  Funding will be provided at 65% of the cost of the eligible replacement truck. Target vehicles for this program include vehicles that utilize the following Truck and Bus Regulation compliance options:

  • Agricultural Vehicle Extension
  • Low-Use Exemption
  • Specialty Agricultural Vehicle Extension
  • Model Year Schedule and the truck must operate as an “agricultural vehicle” as defined in the Truck and Bus Regulation

In order to receive funding for the Heavy-Duty Truck portion of the program, applicants must show compliance with the Truck and Bus Regulation for this current year.  Funding will be on a first come, first serve basis, so we recommend you get your applications in ASAP.  Applications can be found on the Air District’s website at http://valleyair.org/grants/FARMER.htm. Any questions in regards to the program can be directed to the incentives department representatives Jennifer Schmaill, Kashmir Pandher, Kira Taylor or Ryan Delmanowski with the Air District at (559)-230-6000.

Dairy Sustainability Summit

The dairy industry has united to host the inaugural California Dairy Sustainability Summit at the Sacramento Convention Center. The event will showcase
world-leading achievements in sustainable farming practices, while promoting technology, services, and strategies to help farmers reduce operating costs and generate revenue, while making further advancements. The summit will be held November 27th and 28th at the Sacramento Convention Center. To register, please visit cadairysummit.com.

CARB Adopts Tractor Requirements

The California Air Resources Board (CARB) adopted requirements this week to replace 12,000 Tier 0, Tier 1, and Tier 2 tractors through the use of incentives by 2025.  This effort is part of CARB’s State Implementation Plan (SIP) to reduce PM2.5 emissions in the San Joaquin Valley.  The Association’s President/CEO Roger Isom testified at the hearing supporting the use of incentives, but expressed concerns over the fact that the incentives are not locked in after next year.  Additionally, the Association commented on the concern on replacing 2,400 tractors per year, and whether that is achievable.  Despite the concerns, Isom promised CARB the Association would be at the table pushing for continued incentive funds, as they did in leading the charge to get the current two years of funding at $135 million per year.  This was highlighted at the recent SJVAPCD Press Conference where Isom addressed the media on how important these incentives are and how they will be used.  These incentive funds are included in the new FARMER program and applications are already available in most Air Districts throughout the state.  If you have any questions or need assistance, please don’t hesitate to contact our office at (559)455-9272.

Remembering Bill H. Adams

Bill H. Adams
JANUARY 24, 1943 – OCTOBER 18, 2018

 Bill H. Adams, born January 24, 1943 in Rains County, Texas passed away on October 18, 2018 in Bakersfield, California. Bill attended 7 primary schools, graduating from Grand Saline High School in Grand Saline, Texas. He attended Rutherford School of Business in Dallas from 1960 to 1962. Bill married Donita Shaw in August of 1962. They had two sons, Bill Jr. and Todd, three grandchildren, Ayla, Jon and Rebekka, and a great granddaughter, Emma.

Bill joined Toyo Cotton Company in 1962 in Dallas as a shipping clerk and was promoted to Traffic Manager in 1970. In 1975 he was transferred to McFarland, California to work as the Office Manager of Toyo’s California operation. In 1981 he was promoted yet again to Vice President of Toyo Cotton Company’s California operation. Bill was Vice President of Toyo Cotton Co.’s Dallas office when he retired the end of December 2011.  He continued as an Advisor to Toyo after his retirement. Bill remained active the cotton business for 56 years.

He served on the Board of Directors of Fresno Cotton Exchange in 1978 and 1979 as well as the Board of Directors of Western Cotton Shippers Association in 1982/1983 and 1984/1985. From 1985-1986 Bill served as President of the Western Cotton Shippers Association.  He also served on the Board of Directors of the American Cotton Shippers Association and many committees of ACSA and WCSA.  Bill was proud to serve in an industry that gave him so much.  In lieu of flowers please donate to one of his favorite charities: St. Jude Children’s Research Hospital, The Salvation Army, or the Comprehensive Blood and Cancer Center.

Senator Stern Tours Cotton Gin

The Association as well as members of the Agricultural Presidents Council hosted Senator Henry Stern on a tour of agricultural operations in the Central Valley. Senator Stern represents the 27th Senate District which includes parts of Santa Clarita, Malibu, Calabasas, Thousand Oaks, Canoga Park, Lake Balboa and much more. The Senator has Valley ties, but wanted to understand agricultural issues in more detail. CCGGA brought the Senator to Cross Creek Gin to show how cotton is transformed from coming in from a module to a bale ready to be sent to a textile mill. CCGGA Board Member, Kirk Gilkey shared the history of cotton in California, the advancements the industry has made in technology and how California cotton holds pride in the ability to grow some of the strongest and softest fiber in the world. Spending the entire day with the group the Senator was able to visit a dairy farm, a citrus operation, a table grape operation, a cotton gin, a pistachio processor as well as receive an aerial demonstration at Lakeland Dusters Aviation.

Tractors Crushed at FARMER Funding Roll Out Event

The San Joaquin Valley Air Pollution Control District (District) and California Air Resources Board (ARB) in partnership with state and local officials as well as the Association gathered at Bruno’s Iron and Metal to highlight the new Funding Agricultural Replacement Measures for Emission Reductions (FARMER) Program. This program funding of $108 million, comes from the California Climate Investments that puts Cap & Trade dollars to work to reduce greenhouse gas emissions. Through the FARMER program valley farmers can apply for incentive dollars to replace their older tractors, trucks and ATVs with newer, lower-emission technology. Association President/CEO Roger Isom said, “Today is a monumental day… (or whichever quote you would like”. The Association was one of the few ag organizations to fight for this money to come to the valley. Additionally, Isom noted that this was an effort where party lines were crossed and legislatures were able to come together to make happen. Attendees of the event were able to witness tractors, road graders and an ATV being replaced with these dollars being crushed. Among the speakers for the day were Assembly Member Autumn Burke, Assembly Member Heath Flora, Supervisor Buddy Mendes, Director of EPA Region IX Mike Stoker, Executive Director/APCO Samir Sheikh, Nisei Farmers League President Manuel Cunha, ARB Board Member Hector De La Torre, CDFA Undersecretary Jenny Lester Moffitt and Carlos-Suarez with USDA-NRCS.