Mariko Yoshihara

Within a few days we will know the fate of dozens of labor and employment bills that have made it to the Governor’s desk this year, including several CELA-sponsored measures to strengthen sexual harassment protections for working people in California.  Be sure to read the two op-eds written in support of our bills: Ban agreements that silence workers from exposing sexual harassment by Rosanna Arquette and Adam Iwu; California can be the leader in sexual harassment protection — if Jerry Brown signs these five bills by Mira Sorvino.

The Governor has until September 30th to sign or veto all bills that have made it to his desk.  Below are the top 20 labor and employment bills to watch:

1. AB 3250 (Committee on Judiciary) Cy Pres. Summary: In 2018, the Legislature enacted SB 847, which modified provisions of existing cy pres statute. Utilizing old language, that bill provided that interest rates applied to the residual funds were to be calculated using the “legal rate of interest” which in California is ten percent. This bill would instead provide for the payment of interest accrued, utilizing more standard rates of interest and eliminating the surprise for parties to settlements.  Status: 9/26/2018-Signed by the Governor
2. SB 937 (Wiener D) Lactation accommodation. Summary: Would require an employer to provide a lactation room or location that includes prescribed features and would require an employer, among other things, to provide access to a sink and refrigerator in close proximity to the employee’s workspace, as specified. The bill would require an employer to develop and implement a policy regarding lactation accommodation and make it available to employees, as specified. The bill would also require an employer to maintain records of requests for lactation accommodation for 3 years and to give the Labor Commission access to those records.  Status: 9/6/2018-Enrolled and presented to the Governor at 4 p.m.
3. AB 2185 (Chiu D)  Appointment of guardian ad litem: pseudonyms. Summary: Would authorize a court to permit a guardian ad litem to be appointed and appear under a pseudonym if the guardian ad litem establishes facts and circumstances that demonstrate an overriding interest in preserving his or her anonymity. The bill would require the court to make specified findings in granting that permission. If a guardian ad litem is permitted to appear under a pseudonym, the bill would require all court decisions, orders, petitions, and other documents to be written in a manner that protects the name and personal identifying information of the guardian ad litem from public disclosure, except to the extent the information is necessary to permit a party to prosecute, defend, or resolve the action.  Status: 9/27/2018-Signed by the Governor
4. AB 2732 (Gonzalez Fletcher D) Janitorial workers: sexual violence and harassment prevention training. Summary: Prohibits an employer from and imposes penalties for withholding an employee’s immigration-related documents and requires that specified employees receive a Worker’s Bill of Rights regarding freedom of movement and payment of wages.  Also clarifies the definition of a janitorial services’ employer, requires that the employer maintain accurate records, as specified, for all covered workers, and revises the employer registration process to require substantiation that sexual violence and harassment prevention training was provided. Status: 9/12/2018-Enrolled and presented to the Governor at 12 p.m.
5. SB 349 (Lara D) Courthouses: Privilege from civil arrest. Summary: This bill would codify key components of the common law privilege against civil arrest, under which a person may not be subjected to civil arrest in relation to one legal matter while attending a judicial proceeding for another. To facilitate enforcement of the privilege, this bill would also codify judicial authority to enforce the common law privilege against civil arrest, in keeping with the inherent power of judicial officers to prevent activities that would otherwise undermine the administration of justice. The bill would enable enforcement of the privilege by the Attorney General as well.  Status: 9/11/2018-Enrolled and presented to the Governor at 4 p.m.
6. SB 954 (Wieckowski D) Mediation: confidentiality: disclosure. Summary: Would, except in the case of a class or representative action, require an attorney representing a person participating in a mediation or a mediation consultation to provide his or her client, as soon as reasonably possible before the client agrees to participate in the mediation or mediation consultation, with a printed disclosure, as specified, containing the confidentiality restrictions related to mediation, and to obtain a printed acknowledgment signed by that client stating that he or she has read and understands the confidentiality restrictions.  Status: 9/11/2018-Signed by the Governor.
7. AB 1867 (Reyes D) Sexual harassment: records. Summary: Would require an employer with 50 or more employees to maintain internal complaint records of employee complaints alleging sexual harassment for a minimum of 5 years after the last day of employment of the complainant or any alleged harasser named in the complaint, whichever is later. Status: 8/24/2018-Enrolled and presented to the Governor at 4:30 p.m.
8. AB 1870 (Reyes D) Employment discrimination: filing deadline. Summary:  This bill would extend the deadline to file a complaint with the Department of Fair Employment and Housing from 1 to 3 years for complaints alleging employment discrimination.  Status: 9/6/2018-Enrolled and presented to the Governor at 3 p.m.
9. AB 3080 (Gonzalez Fletcher D) Forced arbitration. Summary: This bill would prohibit a person from conditioning employment, the receipt of any employment-related benefit or as a condition of entering into a contractual agreement, on an employee or applicant waiving any right, forum, or procedure for a violation of any provision the California Fair Employment and Housing Act or the Labor Code, and would prohibit a person from threatening, retaliating, or discriminating against any applicant or employee because of their refusal to agree to such a waiver. This would also make it unlawful for employers to prohibit workers from disclosing an instance of sexual harassment, opposing an unlawful practice, or participating in any investigation relating to harassment or discrimination. Status: 8/27/2018-Enrolled and presented to the Governor at 3 p.m.
10. AB 3081 (Gonzalez Fletcher D) Employment: sexual harassment. Summary: Would prohibit an employer from discharging or in any manner discriminating or retaliating against an employee because of the employee’s status as a victim of sexual harassment. Would create a rebuttable presumption of unlawful retaliation, for the 30 days after an employer learns that an employee has been the victim of domestic violence, sexual assault, sexual harassment or stalking, if an employer takes an adverse employment action against an employee. Would impose joint liability between a client employer and a labor contractor for harassment based on sex, as defined, for all workers supplied by that labor contractor. Status: 9/11/2018-Enrolled and presented to the Governor at 4:30 p.m.
11. AB 3109 (Stone, Mark D)  Contracts: waiver of right of petition or free speech. Summary: Would make a provision in a contract or settlement agreement void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment. Status: 8/27/2018-Enrolled and presented to the Governor at 3 p.m.
12. SB 224 (Jackson D) Unruh Civil Rights Act: sexual harassment. Summary:  This bill would eliminate the element that the plaintiff prove there is an inability by the plaintiff to easily terminate the relationship. This bill would extend the situations when business, service, or professional relationships can exist between the plaintiff and the defendant to include cases in which 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 third party. The bill would include an investor, elected official, lobbyist, director, and producer among those listed persons who may be liable to a plaintiff for sexual harassment. Status: 9/6/2018-Enrolled and presented to the Governor at 4 p.m.
13. SB 820 (Leyva D) Settlement agreements: confidentiality. Summary:  This bill would prohibit a provision in a settlement agreement that prevents the disclosure of factual information relating to certain claims of sexual assault, sexual harassment, or harassment or discrimination based on sex, that are filed in a civil or administrative action. Allows a provision that shields the identity of the claimant and all facts that could lead to the discovery of his or her identity, including pleadings filed in court to be included within a settlement agreement upon the request of the claimant. However, this provision does not apply if a government agency or public official is a party to the settlement agreement.  Otherwise, a provision within a settlement agreement that prevents the disclosure of factual information related to the action that is entered into on or after January 1, 2019, is void as a matter of law and against public policy. Status: 8/30/2018-Enrolled and presented to the Governor at 5 p.m.
14. SB 1300 (Jackson D) Sexual harassment. Summary: This bill would provide statutory guidance on the severe or pervasive standard for litigating sexual harassment claims under the Fair Employment and Housing Act. This bill would prohibit employers from requiring employees to sign a release of claims agreement or non-disparagement agreement in exchange for a raise, bonus, or as a condition of employment. This bill would specify that an employer may be responsible for the acts of nonemployees with respect to other harassment activity. Status: 9/12/2018-Enrolled and presented to the Governor at 5 p.m.
15. AB 1654 (Rubio D) Labor Code Private Attorneys General Act of 2004: construction industry. Summary:  This bill exempts construction workers from the Private Attorneys General Act (PAGA) who are covered by a collective bargaining agreement, if that agreement expressly provides for, among other things, a grievance and binding arbitration procedure to redress violations that would have been remedied under PAGA. Status: 9/19/2018-Signed by the Governor.
16. AB 2496 (Gonzalez Fletcher D) Janitorial employees: employment status. Summary: Current law creates a rebuttable presumption that a worker performing services for which a license is required under specified statutes, is an employee rather than an independent contractor. Current law provides specified criteria to determine whether the worker is an employee or an independent contractor. This bill would provide that a property service employer would be subject to the rebuttable presumption provisions that its workers are employees rather than independent contractors. Status: 9/23/2018-Vetoed by Governor.
17. AB 2605 (Gipson D) Rest breaks: petroleum facilities: safety-sensitive positions. Summary: Provides that petroleum facility employees in safety-sensitive positions who are covered by a valid collective bargaining agreement, as specified, are exempt from the requirement that employees be relieved of all duties during rest periods until January 1, 2021. Status: 9/20/2018-Signed by the Governor.
18. SB 926 (Skinner D) CalWORKs and CalFresh: workers’ rights. Summary: This bill would prohibit sanctions under CalWORKS from being applied for a failure or refusal to comply with program requirements if the recipient provides documentation that the anticipated work hours would be so unpredictable for that specific recipient that they would not allow the recipient to anticipate compliance with program requirements related to the job.  The bill would also prohibit sanctions from being applied if the recipient self-certifies that the employment or offer of employment fails to comply with the Healthy Workplaces, Healthy Families Act of 2014, that his or her rights under the New Parent Leave Act, the Wage Theft Prevention Act of 2011, or the Domestic Worker Bill of Rights were violated, or that he or she experienced sexual harassment or other abusive conduct at the workplace. The bill would require the county human services agency, when an applicant or recipient reports refusing any offer of employment, reducing hours, voluntarily quitting any employment, or being discharged from any employment, to provide the applicant or recipient with information regarding workplace rights generally, as specified, and would require the State Department of Social Services to convene stakeholders to develop instructions for county human services agencies on how to best inform applicants and recipients of aid of those rights and remedies. Status: 8/28/2018-Enrolled and presented to the Governor at 3:30 p.m.
19. SB 1252 (Pan D) Wages: records: inspection and copying. Summary:  This bill would provide that employees have the right to receive a copy of the employment records under Labor Code Section 226 and apply the associated time requirements and penalty provisions in this context. Status: 9/17/2018-Signed by the Governor.
20. SB 1402 (Lara D) Labor contracting: joint liability. Summary: This bill requires joint and several liability for customers who contract with port drayage services who have unpaid wage, tax and workers’ compensation liability. Status: 9/22/2018-Signed by the Governor.