Big Changes in 2020-2021

California Outlaws Employment Arbitration Agreements – 2020

Labor Code § 432.6 outlaws the use of arbitration agreements as a term or condition of employment, but only as to matters of discrimination and Labor Code violations.  If an employee refuses to sign such a purported waiver, the law now provides remedies for retaliation.  The law attempts to place a layer of fairness and free will on the arbitration process.  Nothing prevents a truly voluntary choice by the employee to enter arbitration.  The law prevents employers from requiring arbitration by leveraging the offer of employment or continuing employment.  The corresponding anti-discrimination statute is CA Government Code Section 12953.  The law has teeth.  An aggrieved employee can recover his or her attorney’s fees, costs, and a court order of nullification of the arbitration clauses, if required to sue.

But employers will challenge this law in both State and Federal Courts.  So, check back in for an update in 2021 on the question of whether the Federal Arbitration Act preempts this legislation.  The U.S. Supreme Court has been hostile to State Court decisions attacking arbitration. While employers are likely feeling testy on this issue, a recent 5-4 U.S. Supreme Court decision, in which Justice Roberts joined, may deflate their expectations. See Lamps Plus, Inc. v. Varela (2019) 139 S.Ct. 1407.  Lamps Plus held that the FAA is a matter of true voluntary agreement between persons of roughly equal bargaining power in the context of big players in commerce.  Thus, an individual employee may not be such a player, and an issue for review is whether the “agreement” to arbitrate was coerced or free.   In this context, the future of L.C. Section 432.6 may hang in the balance.

Employers Delaying Arbitration by Non-Payment of Arbitration Fees Will Lose the Right to Arbitrate Employee Claims – 2020

C.C.P. §§ 1281.97 and 1281.98 define non-payment of arbitration fees within 30 days of their due date as being in material breach of the employment arbitration agreement, and thereby employers are deemed by law to have waived the right to arbitrate.  The employee then has the option of going forward with the arbitration by paying the employer’s fee or filing in Court.  The law requires the Court to award monetary sanctions against the employer for the delay.  The statute of limitations is tolled for the period of the employer’s delay, but only as to claims stated in the arbitration complaint.

New Statute of Limitations to File for Discrimination in California – 2020

To the point, the timeline to file a discrimination claim with the California Fair Employment and Housing Department [DFEH] was one year.  It is now three years.  Add to that another year when and if the Agency issues a “right to sue” notice, giving employees an additional year to file in state or federal court.  The operative event needed to occur to meet the filing deadline is filing of a factual DFEH “intake form,” rather than the filing of a verified final complaint.  The DFEH used to have one year from the filing of the verified complaint to complete its investigation.  The time is now clarified to be from the earlier date of the intake form.

Braids, Locks and Twists—Hairstyle Protections – 2020

This 2020 law isn’t just a stylistic whimsey by the California legislature.  The new law recognizes that persons of African American heritage use hairstyles because of inherent hair qualities or because of ethnic or cultural preference, and that prohibiting these hairstyles can be disguised forms of discrimination.  The law gets to this result by including within the definition of race to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.  “Protective hairstyles” are further defined as “braids, locks, and twists.”

Employers Must Provide Sexual Harassment Training to Non-Supervisory Employees beginning January 2021.

The law covers employers having 5 or more employees.  This is a shift from the 2018 law setting the magic number at 50.  The training must repeat every two years.  Both supervisors and non-supervisors must be given the training within the first six months of hire.

What this change means is a broader fishing net of violations that may be relevant in the proof that an employer did not take all reasonable steps in preventing sexual harassment.  The training is not overwhelming in time or costs for small employers because it can be administered online through an interactive process.  The use of Zoom made popular during the Covid-19 crisis is now an online education tool most people are comfortable using, and allows for questions and answers, and live interaction with the ability to screen share.

Two-tiered California Minimum Wage Law Increases in 2020.

Employers with 26 or more employees must pay a minimum of $13.00 per hour.  Employers with 25 or fewer employees must pay a minimum of $12.00 per hour.

Breast Milk Lactation Rules – 2020

Breast Milk Lactation Rules are now more specific as to the kinds of accommodation that must be provided.    The new law states employer handbooks must include a policy stating how an employee may request the lactation right, and the kinds of accommodations the employer will provide in compliance with the law.  The policy must state the employee’s right to file a complaint with the Labor Commissioner if accommodation is not provided in compliance with the law.  The employer must distribute the policy to employees upon hire. There is a $100 per day fine for each day the accommodation is not provided.  The fine is recoverable by the Labor Commissioner.  New building designs must include consideration and inclusion of compliance with the privacy space requirements of the law.

Paid Family Leave – 2020

Paid Family Leave is extended is from six to eight weeks commencing July 1, 2020.  Further, the Governor has formed a task force to explore the benefits and costs of allowing a full six months of paid baby bonding time by 2021-2022.

“No Rehire” Settlement Clauses Outlawed -2020

The usual practice of requiring an employee’s agreement not to re-apply for employment with the settling employer is now outlawed.  This provision has always been offensive to employees, not because they sought to be re-employed, but it impliedly stigmatized them.  Further, given the merger and acquisition shift in our economy over the last decades, the restriction could capture a large swath of interconnected companies, thereby limiting the opportunity to pursue one’s livelihood. This is a welcome brake on the practice.  The law does not preclude an employer’s exercise of legitimate business judgment untainted by retaliation for having brought a claim or suit from refusing to rehire a person.