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New California Laws Change Sexual Harassment Landscape

On Sunday September 30, 2018, while many of us were busy setting our Fantasy Football lineups, outgoing Governor Jerry Brown signed a number of work-related bills arising in response to the #MeToo movement that will substantially alter employers’ exposure to liability for workplace harassment, prohibit many common practices used to reduce adverse publicity surrounding workplace harassment claims, and impose additional training and inclusion requirements.

SEXUAL HARASSMENT OMNIBUS BILL, SB 1300

The most far-reaching of the new laws is SB 1300, the Sexual Harassment Omnibus Bill, which amends the California Fair Employment and Housing Act (“FEHA”).  Under SB 1300, FEHA will now expressly affirm some harassment-related court decisions and disavow others, embedding into the statute the following legal concepts and ever-expanding scope:

  • The plaintiff in a workplace harassment suit is only required to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that

Where There’s Smoke, There’s Danger: CAL/OSHA Urges Protection of Workers From Wildfire Smoke

California is currently experiencing record-breaking heat waves and an increased number of active wildfire incidents.  California OSHA (CAL OSHA) has determined that this poses a serious threat to the safety of outdoor workers because smoke from wildfires often contains chemicals, gases, and fine particles that are dangerous to human health.  Inhaling such particles is particularly dangerous, says CAL OSHA, because it can reduce lung function, worsen asthma and other existing heart and lung conditions, and cause coughing, wheezing, and difficulty breathing.

In response to these concerns, CAL/OSHA recently issued an advisory notice that urges employers with employees  exposed to wildfire smoke to take extra precautions as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).  Those precautions include:

  • Utilizing engineering controls whenever feasible (for example,

California High Court Adopts New Test For Independent Contractors

California High Court Adopts New Test For Independent Contractors

May 2, 2018

Authored by: Bryan Cave At Work

In its decision on April 30, the California Supreme Court established a new test for classifying workers as independent contractors, with significant implications for the so-called “gig economy.” In Dynamex Operations West, Inc. v. Superior Court of Los Angeles, the Supreme Court laid out the “ABC Test,” which presumptively considers all workers to be employees and permits an independent contractor classification only if the hiring entity can show that all of the following conditions are met:

  • The worker has freedom from control or direction of the hiring entity over how to perform the work, both under contract and in fact;
  • The service is outside the company’s usual course of business or outside of all the places of business for which the service is performed; and
  • The worker is customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring
  • Employers Can Maintain a Drug Free Workplace in California Despite State Legalization of Recreational Marijuana

    California’s passage of the “Control, Regulate, and Tax Adult Use of Marijuana Act,” commonly referred to as Proposition 64, legalized the sale, possession, and use of recreational marijuana under limited circumstances. Marijuana still remains an illegal Schedule I substance under the federal Controlled Substances Act and therefore still subject to prosecution under federal law. Many employers wonder what effect, if any, Proposition 64 has on their ability to maintain a drug free workplace.

    Bryan Cave attorneys just released a client alert on this topic. Click here to read the Alert in full.

    Bryan Cave LLP has a team of knowledgeable lawyers and other professionals prepared to help employers comply with California law. If you or your organization would like more information on Proposition 64, or any other employment issue, please contact an attorney in the Labor and Employment practice group.

    You’ve Been Warned: California’s WARN Act Is Broader Than the Federal Warn Act

    As with so many other situations involving California’s employment laws, its protection for California-based employees experiencing a job loss is broader than the protections under federal law.  In The International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, Local 998, et al. v. Nassco Holdings Inc., et al., the California Court of Appeal, Fourth Appellate Division held, among other things, that California’s version of the Worker Adjustment and Retraining Notification (“WARN”) Act is broader than its federal counterpart.

    The specific issue the court addressed was whether a furlough of several weeks constituted a “layoff” for purposes of a “mass layoff,” triggering the 60-day notice period when 50 or more employees at a covered establishment experience a “layoff” during any 30-day period.  The defendant argued unsuccessfully that no notice was required because its work stoppage was only for a brief period and therefore its action was not a “layoff” or

    2018 Exemption Limits for the Computer Professional and Physician Exemptions

    December 1, 2017

    Categories

    Effective January 1, 2018, California’s Department of Industrial Relations will begin imposing new rates for the computer software employee exemption and the licensed physician and surgeon exemption to reflect a 2.9% increase in the California Consumer Price Index (CCPI) for Urban Wage Earners and Clerical Workers.

    To be exempt from overtime requirements, a computer software employee’s rates have increased as follows:

    • Minimum hourly rate:  From $42.35 to $43.58
    • Minimum monthly salary:  From $7,352.62 to $7,565.85
    • Minimum annual salary:  From $88,231.36 to $90,790.07

    The minimum hourly pay for licensed physician and surgeon exemption has increased from $77.15 to $79.39.

    Relatedly, the professional, executive and administrative exemptions will also be subject to change after the minimum wage increase takes effect on January 1, 2018.  To qualify as exempt under these classifications, employees must be paid at least two times the state minimum wage in addition to meeting the other exemption

    California Bans the Box: Employers Must Review and Update Background Screening Processes

    Recently, on October 14, 2017, Governor Jerry Brown signed Assembly Bill 1008 (“AB 1008”), which adds Government Code Section 12952 into state law.  Among other things, this new provision makes it an unlawful employment practice under the Fair Employment and Housing Act (“FEHA”) for a private employer with five (5) or more employees to inquire about or consider a job applicant’s conviction history prior to a conditional offer of employment.  This “ban-the-box” legislation is the latest in a series of initiatives nationwide to ban private employers from inquiring about convictions on an application for employment.   California joins five other states, including Connecticut, Illinois, New Jersey, Oregon, and Vermont, in banning private employers’ inquiries regarding convictions prior to a conditional offer of employment.  AB 1008 becomes effective January 1, 2018.

    Only Post-Offer Consideration of a Conviction or Specified Arrests is Permissible.  Most dramatically, employers may not ask an applicant about any

    California Enacts New Law Expanding Parental Leave to Small Employers

    On Thursday, October 12, 2017, California Governor Jerry Brown signed legislation that extends twelve weeks of unpaid parental leave to California employees who work for small businesses.  The New Parent Leave Act applies generally to California employers with at least 20 and no more than 49 employees.  The practical effect of the Act is to expand the parental leave required under the federal Family and Medical Leave Act (FMLA) and the California Family Rights Act (CFRA) to smaller employers.  The new law takes effect on January 1, 2018.

    Under the New Parent Leave Act, an employee may take up to twelve weeks of unpaid parental leave within one year of a child’s birth, adoption, or foster care placement, so long as the employee (1) works at a location where the employer has at least 20 employees within a 75 mile radius, (2) has at least twelve months of service with

    “Male, Female, A Combination of Male and Female, Neither Male Nor Female”… New California Regulations Regarding Transgender Identity and Expression

    Effective July 1, 2017, there are new regulations adopted by California’s Fair Employment and Housing Authority which significantly expand protections against discrimination for the transgendered.

    Broader Definitions

    The regulations expand the meaning of “gender identity” to include an individual’s “internal understanding” of their gender, or the perception of a person’s gender identity, which may include male, female, a combination of male and female, neither male nor female, a gender different from the person’s sex assigned at birth, or transgender.  Similarly, the definition of “sex” is expanded to include “perception by third-party of any of the aforementioned” and the term “sex stereotype” is expanded to include “gender roles, gender expression or gender identity.”  Additionally, a new definition of “transitioning” is included to mean the “process some transgender people go through to begin living as the gender with which they identify, rather than the sex assigned to them at birth.  This process

    New York City Follows Trend in Predictable Scheduling Law

    New York City Follows Trend in Predictable Scheduling Law

    June 27, 2017

    Authored by: Bryan Cave At Work

    Bryan Cave’s Retail practice recently published a Client Alert: New York City Follows Trend in Predictable Scheduling Law.  The Alert highlights New York City’s new scheduling law for retail employers and discusses the impact of similar laws in other major cities. Follow the link below to read more.

    https://www.bryancave.com/en/thought-leadership/new-york-city-follows-trend-in-predictable-scheduling-law.html

     

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