Space for nursing mothers, drivers’ mealtimes among laws changing in 2019

Many have heard that starting next year, California will require a publicly-held corporation’s board to have at least one female director.

And while it’s not because of a new law, minimum wage for those working at companies with more than 25 employees goes up to $12 an hour effective Jan. 1, 2019. Smaller companies will need to increase their minimum wage pay, but only to $11 an hour.

Other changes will affect business operations in 2019, too.

Employers of lactating women already must make “reasonable efforts” to give them a place other than a toilet stall to express beast milk and to give them appropriate breaks. Starting Jan. 1, 2019, a modification of that law specifies the space for this use also must not be a bathroom.

Temporary lactation spaces will be considered compliant if no permanent spot is available because of space, operations or financial limits, if the space is private and free from intrusion while in use, is used only for lactation activities while an employee expresses milk there and if the site meets other existing state requirements.

A seven-day waiting period to receive paid family leave will be eliminated Jan. 1, 2019, too. Until then, an employee could receive benefits if he or she was unable to perform regular or customary work for a seven-day waiting period.

Also eliminated is the employer’s opportunity to require vacation time be applied to the seven-day waiting period.

Until Jan. 1, 2019, an employer is allowed to tell another company whether the employer would rehire an employee who is a candidate to be hired by the other company. That communication has been called privileged and protected from a defamation lawsuit if it was done without malice, under current law.

But an amendment that goes into effect in 2019 amends what is considered privileged communication.

It adds complaints of sexual harassment by an employee without malice to an employer based on credible evidence; communication between the employer and interested people without malice about a sexual harassment complaint; communication by the employer without malice whether the decision not to rehire the employee is based on a determination that the former worker had engaged in sexual harassment.

Other new laws have stemmed from the “Me Too” movement and its focus on sexual harassment.

Assembly Bill 3109, which becomes effective next year, makes void and unenforceable any provisions in a contract or settlement agreement that waive a party’s right to testify in an administrative, legislative or judicial proceeding about alleged criminal conduct or sexual harassment.

Another new law, Senate Bill 224, makes the Department of Fair Employment and Housing responsible for enforcement of sexual harassment claims, and bans the practice to deny or aid, incite or conspire in the denial of rights of people related to sexual harassment actions.

Senate Bill 820 affects settlement agreements made on or after Jan. 1, 2019.

It voids a provision in such agreements that prevent disclosure of factual information relating to certain civil and administrative claims, specifically, sexual assault, sexual harassment, workplace harassment or discrimination based on sex, failure to prevent an act of workplace harassment or discrimination based on sex, retaliation against a person for reporting harassment or discrimination based on sex, harassment or discrimination based on sex or retaliation against a person for reporting harassment or discrimination based on sex.

This bill allows lets a claimant request that the settlement agreement include a provision that shields the identity of the claimant or any fact that could lead to the revealing of a person’s identity. That includes pleadings filed in court, so long as the other party is not a government agency or public official.

It also allows the settlement agreement to include a provision that shields disclosure of an amount paid in a claim settlement.

Senate Bill 1252 assures employees the right to receive copies of employment records, rather than just the right to inspect or copy those records.

Starting Jan. 1, 2019, employers can be responsible for the acts of non-employees concerning any additional harassment activity prohibited by the California Fair Employment and Housing Act (FEHA).

The Act already requires employers to be responsible for non-employees’ actions regarding sexual harassment of employees and others, including applicants, unpaid interns and volunteers, if the employers, agents or supervisors knew or should have known of the wrongful conduct and don’t take immediate and appropriate corrective action.

The new law expands this to include harassment based on race, religious creed, color, national origin, ancestry and other characteristics.

It also prohibits employers from trading raises, bonuses or employment for an execution of a release of a claim or right allowed by FEHA, an employee’s signing a non-disparagement agreement or other document that might deny the employee’s right to disclose information about unlawful acts in the workplace, including sexual harassment.

The new law allows, but does not require, employers to provide bystander intervention training concerning potentially problematic behaviors and how to motivate bystanders to act when they see those behaviors.

It affirms that in a workplace harassment suit, a plaintiff doesn’t need to prove that his or her tangible productivity has declined as a result of the harassment, but that the harassment altered working conditions to make the job more difficult.

It establishes that the legal standard for sexual harassment should not vary by type of workplace and acknowledges that hostile working environment cases involve issues might be “determinable on paper.”

Another concern addressed in new legislation is human trafficking.

As of Jan. 1, 2019, the FEHA must require employers in the hotel and motel industry, excluding bed and breakfast inns, to provide at least 20 minutes of training and education about human trafficking awareness to employees who most likely would interact or come into contact with victims.

Compliance must be complete by Jan. 1, 2020, and should be renewed every two years afterwards.

Likewise, another new law expands sexual harassment training will expand to employers who have five or more employees, including temporary or seasonal employees.

By Jan. 1, 2020, and once every two years afterwards, employers must provide at least two hours of such training to all supervisors and managers, and one hour or more of training to non-supervisory employees.

The state will be required to develop or obtain online training courses on the topic and to post the courses on the Department of Fair Employment and Housing (DFEH) website.

Employers won’t be prohibited from asking applicants about particular convictions or from researching an applicant’s criminal background if thhose employers are required to obtain that information even if the conviction has been expunged, legally ordered sealed, statutorily eradicated or judicially dismissed after probation.

The same applies if the applicant would be required to possess or use a firearm as part of his or her work duties, if certain convictions would prohibit a person from working at the position sought, or if employers are prohibited by law from hiring an applicant with specific convictions.

Another new law authorizes a commercial driver who works for a carrier to start a meal period after six hours of work if certain conditions are met.

Those conditions are if the driver is transporting nutrients and by-products from a licensed commercial feed manufacturer to a customer in a remote location and the driver’s regular pay rate is more than one and one-half times the state minimum wage and the driver receives overtime compensation.

Senate Bill 946 will prohibit local governments from banning sidewalk sales of food and merchandise, but those governments may adopt a licensing system if they want to regulate those vendors. Violators would be cited or fined, but would not face criminal charges that would alert immigration officials.

Not everything covered by new laws is business-related.

Starting Jan. 1, those riding electric scooters on municipal streets won’t need to wear helmets, and can increase their speed from the current 25 mph to 35 mph.

Gun owners who want to carry weapons in public will need to prove they are proficient in shooting and handling their firearms, according to Assembly Bill 2103, which increases minimum training to eight hours.

Those voting by mail would not have to pay for stamps according to Assembly Bill 216, but local governments may ask the state to reimburse them for costs that could reach more than $5 million.

Some new laws take effect July 1, 2019, rather than on New Year’s Day.

One of them requires medical professionals, including medical, osteopathic and naturopathic doctors, surgeons, acupuncturists, chiropractors and podiatrists to inform patients if they are on probation for ethical violations before they can treat those patients.

By July 1, 2019, the Department of Justice must decide which past marijuana convictions may be eligible for recall or dismissal of a sentence.

Another law won’t be effective until the start of the 2019-20 school year.

It extends to charter schools the state requirement to provide low-income students with one free or reduced-price meal a day, and that the meal must meet federal child nutrition requirements. Public schools already are required to provide those meals.

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