A Piece
of Work

written by
Margaret A. Grover

Stay on top of the new state and federal employment laws of 2019, which focus on workplace harassment, family accommodation, and pay parity. 

The high-profile allegations of sexual harassment that made headlines in 2017 and 2018 prompted new employment laws at the state and federal level. Other new laws and significant cases affect lactation accommodation, Paid Family Leave, and interview questions about the employee’s pay.

Legislative Intent to Protect Workers Against Harassment
The new laws provide a detailed statement of the legislative intent to prevent workplace harassment declaring that (a) harassment creates a hostile, offensive, oppressive, or intimidating work environment and deprives victims of their statutory right to work in a place free of discrimination; (b) in a workplace harassment suit the plaintiff need not prove that his or her tangible productivity has declined as a result of the harassment; (c) a single incident of harassing conduct is sufficient to create a triable issue regarding the existence of a hostile work environment if the harassing conduct has unreasonably interfered with the plaintiff’s work performance or created an intimidating, hostile, or offensive working environment; (d) the existence of a hostile work environment depends upon the totality of the circumstances; (e) the legal standard for sexual harassment should not vary by type of workplace (for example, a history of frequent sexually related commentary or conduct will not be relevant to evaluating whether or not a hostile environment existed); and (f) harassment cases are rarely appropriate for disposition on summary judgment.

In light of the clarified standards, employers should review the legislative pronouncements and incorporate them into any policies, handbooks or training materials.

New Harassment Prevention Training Requirements
Employers that have as few as five employees, including temporary and seasonal employees, will be required to provide harassment prevention training. Current law requires employers with more than 50 employees to provide training to supervisory employees. The change obligates all employers to provide at least one hour of harassment prevention training to non-supervisory employees. Supervisors are still required to receive two hours of training. Employees who have not previously been required to receive training are to complete their first training no later than January 1, 2020. Training must be provided to all employees every two years.

Beginning January 1, 2020, seasonal employees and employees hired to work for less than six months must receive training within 30 calendar days after the hire date or within 100 hours worked, whichever is earlier. Temporary employees hired through a staffing company are to be trained by the staffing company, not the entity at which they work.

The new law specifies several topics that the training must cover, including: information on the state and federal laws prohibiting harassment; practical guidance on preventing and correcting harassment; remedies available to harassment victims; practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation; practical discussion and examples of harassment based on gender identity, gender expression, and sexual orientation; and, prevention of abusive conduct. In addition, an employer may also provide bystander intervention training, which includes information and practical guidance on how to enable bystanders to recognize potentially problematic behaviors and to motivate bystanders to take action when they observe problematic behaviors. The training may include exercises to provide bystanders with the skills and confidence to intervene as appropriate.

The Department of Fair Employment and Housing (DFEH) is required to develop training programs that meet the minimum requirements. While employers should consult these programs and be sure to include all of the information contained in them, having employees sit through the DFEH training will not be sufficient. The law requires that the training be interactive and presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.

Prohibition of Non Disparagement Clauses
Employers will be prohibited from requiring an employee to release claims of harassment or refrain from discussing harassment, in order to get or keep a job, or in exchange for a raise or bonus. This does not affect settlement of claims in litigation.

Protection for Complaints, Investigations, and Employment References
Employees who complain to their employer about sexual harassment and employer investigations of harassment will be protected against defamation claims. California Civil Code Section 47, which establishes that certain communications are privileged, has been expanded to include employment-related claims of sexual harassment. To be privileged, the employee complaint must be made to the employer, without malice, and based upon credible evidence. The employer’s investigation, including witness communications, will be protected so long as they are made without malice. In addition, in responding to reference requests from potential employers, a former employer is authorized to explain whether the former employee is eligible for rehire and whether the employer’s decision to refuse rehire is based upon a determination that the former employee engaged in sexual harassment.

Pay Parity Issues
The legislature revised the law prohibiting employers from learning a job applicant’s salary history to resolve several ambiguities and practical problems. The following changes will become effective January 1, 2019:

A key clarification allows employers to ask applicants about their “salary expectation” for the position. When the applicant is an existing employee, the employer may use current salary to establish the new compensation, so long as any wage differential resulting from that compensation decision is based upon a permissible factor for differentiating among workers, such as seniority, merit, production, education, training, or experience.

In addition, if an applicant asks about the compensation for a position, and has completed an initial interview, the employer must provide that information. The information to be provided includes the salary or hourly wage range, but need not include bonuses or equity-based compensation. Employers are not obligated to provide the pay scale to current employees applying internally for transfer or promotion.

Pay parity is a hot topic for both the Labor Commissioner’s office and employee-side counsel. Employers should examine their pay structure and pay practices to assure that any differences in pay are based upon permissible factors rather than gender, national origin, or age.

Paid Family Leave Expanded
Employees may now use the state-provided Paid Family Leave benefits when they take time off related to the covered active duty status of their spouse, registered domestic partner, child or parent who is a member of the US Armed Forces. The time off could include official ceremonies, briefings, changes to child care arrangements, financial or legal arrangements, counseling or spending time with the covered service member during rest and recuperation.

For larger employers, this time off may be protected under the Family and Medical Leave Act and California Family Rights Act, if the employee meets other requirements for leave under those Acts. For employers with fewer than 50 employees, time off in excess of the employee’s accrued sick leave will not be protected.

New Requirements For Nursing Mothers
California law now requires that employers provide a private space, other than a bathroom, for employees to express breast milk. The space should be in close proximity to the employee’s work station. Temporary locations are acceptable if they meet certain requirements and are used only for expressing breast milk when in use for that purpose.

Margaret “Maggie” Grover, a partner in the Employment Practice at Oakland law firm Wendel, Rosen, Black & Dean LLP, has been practicing employment law for more than 30 years. She enjoys helping employers understand the complex rules that govern the employer-employee relationship and finding practical solutions to thorny workplace issues. She can be reached at (510) 834-6600 or mgrover@wendel.com.