WHAT'S NEW IN CALIFORNIA EMPLOYMENT LAW - Ogletree Deakins
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2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
WHAT’S NEW IN CALIFORNIA
EMPLOYMENT LAW
Joseph L. Beachboard (Moderator) – Ogletree Deakins (Torrance)
Maria Anastas – Ogletree Deakins (Los Angeles)
Kevin D. Bland – Ogletree Deakins (Orange County)
Christopher W. Olmsted – Ogletree Deakins (Orange County)
Michael J. Sexton – Ogletree Deakins (Orange County)
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-12019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
A Closer Look at Developments in Cal/OSHA
by Kevin D. Bland
I. 2018 CAL/OSHA DEVELOPMENTS
A. Electronic Submission of Cal/OSHA Form 300A
On October 18, 2018, Cal/OSHA issued a notice of emergency regulation requiring
certain employers to electronically submit summaries of recordable workplace injuries from the
2017 calendar year to federal OSHA by December 31, 2018 (see 8 C.C.R. §§ 14300.35,
14300.41):
(1) Annual electronic submission of Cal/OSHA injury and illness records by
establishments with 250 or more employees. If your establishment had 250 or
more employees at any time during the previous calendar year, and this article
requires your establishment to keep records, then you must electronically submit
information from the Cal/OSHA Form 300A Summary of Work-Related Injuries and
Illnesses that you keep under this part to OSHA or OSHA's designee. You must
submit the information once a year, no later than the date listed in paragraph (c) of
this section of the year after the calendar year covered by the forms.
(2) Annual electronic submission of Cal/OSHA Form 300A Summary of Work-
Related Injuries and Illnesses by establishments with 20 or more employees but
fewer than 250 employees in designated industries. If your establishment had 20 or
more employees but fewer than 250 employees at any time during the previous
calendar year, and your establishment is classified in an industry listed in Appendix
H for Title 8 Sections 14300-14300.48, then you must electronically submit
information from Cal/OSHA Form 300A Summary of Work-Related Injuries and
Illnesses to OSHA or OSHA's designee. You must submit the information once a
year, no later than the date listed in paragraph (c) of this section of the year after
the calendar year covered by the form.
(3) Electronic submission of records upon notification. Upon notification, you must
electronically submit the requested information from your Cal/OSHA injury and
illness records to OSHA or OSHA's designee.
See 8 C.C.R. § 14300.41(a).
Appendix H specifically lists the following industries as covered by Section
14300.41:
NAICS Industry
11 Agriculture, forestry, fishing and hunting.
22 Utilities.
23 Construction.
31-33 Manufacturing.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-22019 NAVIGATING CALIFORNIA EMPLOYMENT LAW 42 Wholesale trade. 4413 Automotive parts, accessories, and tire stores. 4421 Furniture stores. 4422 Home furnishings stores. 4441 Building material and supplies dealers. 4442 Lawn and garden equipment and supplies stores. 4451 Grocery stores. 4452 Specialty food stores. 4521 Department stores. 4529 Other general merchandise stores. 4533 Used merchandise stores. 4542 Vending machine operators. 4543 Direct selling establishments. 4811 Scheduled air transportation. 4841 General freight trucking. 4842 Specialized freight trucking. 4851 Urban transit systems. 4852 Interurban and rural bus transportation. 4853 Taxi and limousine service. 4854 School and employee bus transportation. 4855 Charter bus industry. 4859 Other transit and ground passenger transportation. 4871 Scenic and sightseeing transportation, land. 4881 Support activities for air transportation. 4882 Support activities for rail transportation. 4883 Support activities for water transportation. 4884 Support activities for road transportation. 4889 Other support activities for transportation. 4911 Postal service. OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-3
2019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
4921 Couriers and express delivery services.
4922 Local messengers and local delivery.
4931 Warehousing and storage.
5152 Cable and other subscription programming.
5311 Lessors of real estate.
5321 Automotive equipment rental and leasing.
5322 Consumer goods rental.
5323 General rental centers.
5617 Services to buildings and dwellings.
5621 Waste collection.
5622 Waste treatment and disposal.
5629 Remediation and other waste management services.
6219 Other ambulatory health care services.
6221 General medical and surgical hospitals.
6222 Psychiatric and substance abuse hospitals.
6223 Specialty (except psychiatric and substance abuse) hospitals.
6231 Nursing care facilities.
Residential mental retardation, mental health and substance abuse
6232
facilities.
6233 Community care facilities for the elderly.
6239 Other residential care facilities.
Community food and housing, and emergency and other relief
6242
services.
6243 Vocational rehabilitation services.
7111 Performing arts companies.
7112 Spectator sports.
7121 Museums, historical sites, and similar institutions.
7131 Amusement parks and arcades.
7132 Gambling industries.
7211 Traveler accommodation.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-42019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
7212 RV (recreational vehicle) parks and recreational camps.
7213 Rooming and boarding houses.
7223 Special food services.
Commercial and industrial machinery and equipment (except
8113
automotive and electronic) repair and maintenance.
8123 Dry-cleaning and laundry services.
Assembly Bill 2334, which went into effect on January 1, 2019, amends California law by
specifying that a violative “occurrence” for record retention violations continues until it is
corrected, Cal/OSHA discovers the violation, or the duty to comply with the requirement is no
longer applicable. This is otherwise known as a failure to record an injury or illness as a
“continuing violation” until discovered or corrected. California employers can expect to see
citations issued by Cal/OSHA for violations going back beyond the normal six-month statute
of limitations period for a period of up to five years.
B. Workplace Violence in Healthcare
8 C.C.R. § 3342 required all covered healthcare employers in California to develop and
issue plans to prevent workplace violence and ensure the safety of patients/workers by April 1,
2018.
Section 3342 applies to work in the following healthcare facilities, service categories,
and operations:
o General acute care hospital
o Acute psychiatric hospital
o Skilled nursing facility
o Intermediate care facility
o Intermediate care facility/developmentally disabled habilitative
o Special hospital
o Intermediate care facility/developmentally disabled
o Intermediate care facility/developmentally disabled-nursing
o Congregate living health facility
o Correctional treatment center
o Nursing facility
o Intermediate care facility/developmentally disabled-continuous nursing (ICF/DD-
CN)
o Hospice facility
Under Section 3342, healthcare facilities must Implement and maintain violent incident
log listing all incidents, post-incident responses, and investigations of workplace violence
injuries. All personal identifying information must be kept off of the log. Facilities must establish
recordkeeping practices of workplace hazard identification, evaluation, and correction, training
records, and records of violent incidents. They must also report any incident involving use to
Cal/OSHA within 24 or 72 hours.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-52019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
Healthcare facilities are also expected to develop and maintain a Workplace Violence
Prevention Plan included in the Injury and Illness Prevention Plan, as well as provide effective
training and necessary protective equipment to employees as needed for protection against
workplace violence.
The Workplace Violence Prevention Plan must include all of the following elements:
o Names or job titles of the persons responsible for implementing the Plan.
o Procedures to obtain the involvement of employees and their representatives in
developing, implementing, and reviewing the Plan, as well as assessing
workplace violence hazards, implementing training, and reporting workplace
violence incidents.
o Methods the employer will use to implement the Plan with other employers
whose employees work in the same health care facility, service, or operation, to
ensure that those employers and employees understand their respective roles as
provided in the Plan.
o Procedures for working with the appropriate law enforcement agency during all
work shifts.
o Procedures for the employer to accept and respond to reports of workplace
violence, and prohibit retaliation against an employee who makes such a report.
o Procedures to ensure compliance with the Plan.
o Procedures to communicate with employees regarding workplace violence
matters.
o Procedures to develop and provide the required training.
o Identification and evaluation of environmental risk factors and review of all
workplace violence incidents that occurred in the facility, service, or operation
within the previous year, whether or not an injury occurred.
o Identification and evaluation of patient-specific risk factors.
o Procedures to correct workplace violence hazards in a timely manner. The
employer shall take measures to protect employees from danger immediately,
and shall take measures to protect employees from identified hazards within
seven days of the discovery of the hazard, where there is a realistic possibility
that death or serious physical harm could result from the hazard. When an
identified corrective measure cannot be implemented within this timeframe, the
employer shall take interim measures to decrease the imminent or serious nature
of the hazard while completing the permanent control measures.
o Procedures for post-incident response and investigation, including the provision
of medical care/first aid, identification of employees involved, provision of
counseling, post-incident discussions, review of patient-specific risk factors, and
assessment of corrective measures.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-62019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
C. Changes in Cal/OSHA Administration Under Governor Newsom
The last few budget cycles have seen a dramatic increase in the funding for labor law
enforcement in California – including Cal/OSHA. California employers should anticipate an
increased enforcement presence by state administrative agencies. With the beginning of
Governor Newson’s new term, we can expect to see changes in administration, including in the
position of chief of Cal/OSHA and the head of the Department of Industrial Relations.
II. 2019 CAL/OSHA DEVELOPMENTS
A. Heat Illness Prevention in Indoor Places of Employment
Heat illness prevention in indoor places of employment applies to all indoor work areas
where the temperature equals or exceeds 82 degrees Fahrenheit when employees are present.
The prevention plan may be integrated into the employer’s written Injury and Illness Prevention
Program, written Heat Illness Prevention Program, or maintained in a separate document.
According to the draft revisions as of January 29, 2019, the Heat Illness Prevention Plan
for Indoor Spaces must contain the following components:
o Provision of water, where employees “shall have access to potable drinking
water meeting the requirements of Sections 1524, 3363, and 3457, as applicable,
including but not limited to the requirements that it be fresh, pure, suitably cool,
and provided to employees free of charge. The water shall be located as close as
practicable to the areas where employees are working and in cool-down areas.”
o Access to cool-down areas that “shall be at least large enough to accommodate
the number of employees on recovery or rest periods, so that they can sit in a
normal posture fully in the cool-down area without having to be in physical
contact with each other. The cool-down area shall be located as close as
practicable to the areas where employees are working”
o Assessment and control measures such that the employer shall measure and
record the temperature or heat index and use control measures to minimize the
risk of heat illness. Control measures shall include engineering controls (isolation
of hot processes, isolation of employees from sources of heat, air conditioning,
cooling fans, cooling mist fans, natural ventilation when the outdoor temperature
is lower than the indoor temperature, local exhaust ventilation, shielding, and
insulation of hot surfaces), administrative controls (acclimatizing employees,
rotating employees, scheduling work earlier or later in the day, using work rest
schedules, reducing work intensity or speed, changing required work clothing,
and using relief workers), and personal heat protective equipment (water cooled
garments, air cooled garments, cooling vests, wetted over garments, heat
reflective clothing, and supplied air personal cooling systems).
o Emergency response procedures that include methods to ensure “effective
communication by voice, observation, or electronic means is maintained so that
employees at the work site can contact a supervisor or emergency medical
services when necessary.” This may also include contacting emergency medical
services and transport to emergency medical providers.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-72019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
o Close observation during acclimatization with respect to employees working in
areas at least 10 degrees Fahrenheit higher than the average daily temperature
in the work area or employees who have been new assigned to the work area for
the first 14 days of his/her employment.
o Training for employees (topics include environmental/personal risk factors for
heat illness, procedures for complying with the standard, consumption of water,
acclimatization, different types of heat illness, procedures for responding to heat
illness, procedures for contacting emergency medical services, and procedures
for ensuring clear and precise directions to the work site) and supervisors (steps
to follow when employee exhibits/reports signs of heat illness, monitoring
weather reports).
B. Workplace Violence Plan for General Industries
Employers that are already covered under the healthcare violence prevention standard
under 8 C.C.R. § 3342 are exempt from this proposed regulation.
The workplace violence plan for general industries differs from that for the healthcare
industry in a number of respects: it allows employers greater flexibility to design training
programs addressing the unique needs and conditions of workplaces; it lacks a specific
requirement for a violent incident log; and there is no mandate to report injuries resulting from
workplace violence to Cal/OSHA (except those resulting in serious injury, illness, or fatality).
The written workplace violence prevention plan for general industries requires the
following components:
o Persons responsible for implementing the plan;
o Procedures for involving employees and employee representatives in developing,
implementing, and reviewing the plan;
o Methods to coordinate implementation of the plan with other employers (if
applicable);
o Procedures for accepting and responding to reports of workplace violence and
prohibiting retaliation against employees;
o Procedures to ensure employees comply with the plan;
o Procedures to communicate with employees about workplace violence matters
without fear of reprisal;
o Procedures to develop and provide training;
o Procedures to identify and evaluate workplace violence hazards;
o Procedures to correct workplace violence hazards in a timely manner, including
emergency procedures; and
o Procedures for post-injury response and investigation.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-82019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
Key Legislative, Regulatory, and Case Law Developments
by Christopher W. Olmsted and Michael J. Sexton
2018 Key Legislative Developments
1. SB 3: California Minimum Wage
In 2016, California approved a progressive increase in the minimum wage that
would grow over a period of five (5) years.
The third minimum wage increase became effective January 1, 2019.
Employers with twenty-six (26) or more employees are required to pay their
employees a minimum of $12.00 per hour.
Note that many municipalities (e.g., Los Angeles, San Francisco, San Jose) have
their own (higher) minimum wage requirements. (See Appendix A for a chart.)
Additional increase ($13.00 per hour) coming: January 1, 2020.
What should you do now? Employers should make sure that their employee’s wages
meet and/or exceed the current minimum wage, as well as make any necessary
preparations for further increases in 2020 and 2021.
2. SB 826: Female Members of Boards of Directors
SB 826 adds Section 301.3 to the California Corporations Code and requires that
publicly-held corporations appoint female directors to their board of directors.
By the end of 2019, covered corporations must include at least one (1) female on
their boards of directors.
By the end of 2021, a covered corporation:
o with five (5) or more directors on its board must include at least two (2)
female directors; and,
o with six (6) or more directors on their boards must include at least three
(3) female directors.
Covered corporations may increase the number of directors (i.e. create a new
board position) in order to facilitate compliance.
Covered corporations may be fined as much as $100,000 for their first violation
and up to $300,000 for any subsequent violation.
What should you do now? First, assess whether your company is a covered
corporation under SB 826. Assuming your company is a covered corporation, assess
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-92019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
whether the board is complaint as is, or what changes can be made to ensure
compliance by the end of the year.
3. AB 1976: Lactation Location Cannot be a Bathroom
AB 1976 amends California Labor Code 1031, which requires that employers
provide lactating employees with breaks and rooms (other than a toilet stall) to
express breast milk.
AB 1976 requires that employers must provide rooms (other than a bathroom) to
express breast milk.
An employer may comply with SB 1976 by providing a “temporary lactation
location” if the employer is unable to provide a permanent location due to
operational, financial, or space limitations.
The temporary location must still be private, free from intrusion when in use, and
not used for other purposes when in use.
AB 1976 allows for a narrow “undue hardship” exception to these requirements.
What should you do now? Explore your workplaces to determine whether a location
already exists to simply designate a lactation room. If not, assess the changes that
would need to be made in order to create a permanent or temporary lactation location.
4. AB 2282: Clarifications Regarding the Ban on Prior Salary History Inquiries
AB 2282 amends California Labor Code 432.3 and attempts to clarify the statute.
California Labor Code 432.3 prohibits employers from relying on salary history in
determining whether to offer employment to an applicant or deciding what salary
to offer an applicant. It also requires employers to provide an applicant with the
position’s pay scale if the applicant so requests.
An “applicant” is defined as, “an individual who is seeking employment with the
employer.” AB 2282 clarifies that an existing employee who applies internally for
a position is not an “applicant” for purposes of the statute.
AB 2282 also defines a “pay scale” as a “salary or hourly wage range.”
AB 2282 also defines a “reasonable request” for a pay scale as, “a request after
an applicant has completed an initial interview with the employer.”
AB 2282 expressly permits employers to ask about salary expectations, at which
time an applicant may voluntarily disclose his or her salary.
What should you do now? Review your company’s hiring process and interview
questions to ensure compliance. Be prepared to respond to such “reasonable requests”
from “applicants” for a “pay scale” for each position you are interviewing for, and/or
consider conducting regular audits to obtain/update this information.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-102019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
5. SB 1252: Right to Copy and Inspect Payroll Records
SB 1252 amends California Labor Code Section 226, under which employers
must afford current and former employees the right to inspect certain payroll
related records.
SB 1252 states that that employees have a right to “receive a copy” of the
records.
SB 1252 states that an employer must provide a copy of the records upon
request, rather than requiring the employee to make a copy.
SB 1252 leaves in place the employer’s right to charge the employee “the actual
cost of reproduction.”
What should you do now? Because most employers already are capable of providing
a copy of personnel and pay records, there are no immediate actions that need to be
taken to ensure compliance. However, remain prepared to comply with requests to
make copies of payroll related records.
6. SB 1412: Clarifications Regarding the Exceptions to “Ban the Box” Limitations
SB 1412 amends California Labor Code section 432.7, which limits the
information an employer may ask a job applicant about his or her criminal
activity.
Generally, an employer may not ask a job applicant to disclose information
concerning:
o arrests that did not result in a conviction, referrals to retrial or post-trial
diversion programs,
o or convictions that have been sealed, dismissed, expunged, or statutorily
eradicated pursuant to law,
o unless an exception applies.
SB 1412 limits exceptions to this rule to where the employer is required under
state or federal law to inquire into “particular convictions” (specific categories of
criminal offenses or criminal conduct), or where the employer is prohibited from
hiring an individual with a particular conviction.
SB 1412 also clarifies that, in cases where the exception applies, the employer
may inquire about convictions that have been expunged, judicially ordered
sealed, statutorily eradicated, or judicially dismissed following probation, but not
juvenile convictions.
What should you do now? Determine whether your company has any positions which
require you to inquire into a particular category of criminal offenses or criminal conduct,
or prohibit you from hiring an individual with a particular conviction. Then, determine
whether your hiring practices are compliant.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-112019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
7. SB 1343: Expanded Mandatory Sexual Harassment Training Requirements
SB 1343 amends the California Fair Employment and Housing Act by expanding
both:
o which employers must provide supervisor sexual harassment training;
and,
o to whom they must provide it.
Under current law, employers with fifty (50) or more employees must provide at
least two (2) hours of sexual harassment training to supervisors, every two (2)
years or within six (6) months of an employee becoming a supervisor.
SB 1343 expands that mandate to employers with five (5) or more employees.
SB 1343 provides that covered employers must also now provide at least one (1)
hour of training to nonsupervisory employees as well.
Employers must complete this training by January 1, 2020.
What should you do now? Begin revising sexual harassment training schedules now in
order to ensure compliance by January 1, 2020. Access the California Department of
Fair Employment and Housing’s publicly available two (2) and one (1) hour harassment
prevention training videos and written materials in various languages.
8. SB 1300: “Omnibus” Sexual Harassment Bill
SB 1300 prohibits (in exchange for a raise or bonus, or as a condition of
employment or continued employment) an employer from requiring the execution
of a release of a FEHA claim or the signing of a non-disparagement or non-
disclosure agreement related to unlawful acts in the workplace, including sexual
harassment.
SB 1300 provides that an employer may be liable for unlawful harassment of
non-employees (e.g., applicants, unpaid interns, volunteers, or contractors), if the
employer knew or should have known of the conduct and failed to take
immediate and appropriate corrective action.
SB 1300 rejects two (2) notable federal court decisions:
o Harris v. Forklift Systems, 510 U.S. 17 (1993): SB 1300 instead holds
that, under FEHA, it suffices to prove that a reasonable person subjected
to the discriminatory conduct would find that the harassment so altered
working conditions as to ‘make it more difficult to do the job.’
o Brooks v. City of San Mateo, 229 F.3d 917 (2000): SB 1300 instead
confirms that a single incident of harassing conduct is sufficient to create
a triable issue of hostile work environment harassment if the harassing
conduct has unreasonably interfered with the plaintiff’s work performance,
or created an intimidating, hostile, or offensive working environment.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-122019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
SB 1300 explicitly rejects the “stray remarks doctrine” and provides that a
discriminatory remark, even if not made directly, or in the context of an
employment decision, or uttered by a non-decision maker, should not be applied
in sexual harassment cases.
What should you do now? As always, remain vigilant of potential instances of sexual
harassment committed by employees. As California law prohibiting sexual harassment
becomes more stringent, be prepared to take both corrective and preventative action to
avoid sexual harassment litigation.
9. SB 224: Expanded Sexual Harassment Liability
SB 224 expands California Civil Code Section 51.9’s reach to individuals who
may not be employers, but hold themselves “out as being able to help the plaintiff
establish a business, service, or professional relationship with the defendant or a
third party.”
SB 224 specifically includes investors, elected officials, lobbyists, directors, and
producers as persons covered by the statute.
SB 224 also provides that the DFEH is authorized to investigate these non-
employer relationships.
What should you do now? Remain vigilant of potential instances of sexual harassment
and situations which may create risk for sexual harassment. Be aware of the new
potential for liability and create policies which specifically denounce this form of
harassment.
10. AB 2770: New Defamation Protections for Sexual Harassment Complaints
AB 2770 amends Section 47 of the Civil Code to add three (3) types of
communications regarding sexual harassment that are now considered
“privileged” communications—meaning they cannot be used as a basis for
defamation claim—unless they are made with malice.
Specifically, AB 2770 protects:
o Reports of sexual harassment made by an employee to their employer
based on credible evidence and without malice;
o Communications made without malice regarding the sexual harassment
allegations between the employer and “interested persons” (e.g.,
witnesses or victims); and,
o Non-malicious statement made to a prospective employer as to whether a
decision to rehire, or not, would be based on a determination that the
former employee engaged in sexual harassment.
AB 2770 allows employers of an alleged harasser to warn any potential employer
about the individual’s conduct “without the threat of a defamation lawsuit.”
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-132019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
AB 2770 does not address communications regarding other forms of
harassment, such as harassment based on race, religion, national origin, age,
etc.
What should you do now? Proceed with caution. Although AB 2770 creates additional
protection for employers, employers are encouraged to consult with legal counsel before
disclosing information about a former employee because it is not yet clear how much
detail former employers can disclose in responding to a reference check.
11. AB 3109: Targeting Provisions Precluding Sexual Harassment-Related Testimony
AB 3109 creates new Civil Code Section 1670.11 that will render void and
unenforceable any provision entered into on or after January 1, 2019 that
precludes the right of a victim of sexual harassment to testify in a legal
proceeding regarding criminal conduct or sexual harassment on the part of the
other contracting party.
AB 3109 applies to testimony in an administrative, legislative, or judicial
proceeding, so long as the person’s testimony was required or requested by the
court, administrative agency, or legislative body.
AB 3109 was developed to further bolster the right to freely speak, write, and
publish his or her sentiments on all subjects
What should you do now? Review any existing agreements entered into after January
1, 2019 to ensure that they do not contain any language prohibiting testifying in a legal
proceeding regarding criminal conduct or sexual harassment. Carefully remove
prohibited language from any pending of form agreements for possible use in the future.
12. SB 820: Confidentiality Limits for Sexual Harassment Settlement Agreements
SB 820 voids any provision entered into on or after January 1, 2019 in a
settlement agreement that restricts disclosure of factual information related to
claims of sexual assault or harassment or discrimination, including retaliation for
reporting sexual harassment or discrimination.
SB 820 provides that a provision in a settlement agreement that prevents the
disclosure of factual information relating to a sexual harassment legal action is
prohibited, “unless a claimant requests the inclusion of such a provision.”
SB 820 expressly does not limit the parties’ ability to require the settlement
amount to remain private.
What should you do now? Thoroughly review any “standard” agreements (e.g.,
severance agreements, settlement agreements) to ensure that they do not contain any
language prohibiting the disclosure of factual information related to claims of sexual
assault or harassment or discrimination.
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2018 Key Regulatory Developments
1. DFEH New National Origin Regulations
On July 1, 2018, the Department of Fair Employment and Housing (“DFEH”)
regulations expanding the scope of national origin protections became effective.
The definition of “national origin” now includes, but is not limited to an individual’s
or ancestor’s actual or perceived:
o Physical, cultural, or linguistic characteristics associated with a national
origin group;
o Marriage to or association with persons of a national origin group;
o Tribal affiliation;
o Membership in or association with organization identified with or seeking
to promote the interests of a national origin group; and,
o Name that is associated with a national origin group.
“English-only” rules will not be allowed unless:
o Justified by business necessity;
o Is narrowly tailored; and,
o The employer has effectively notified its employees of the circumstances
and time when the restriction is required, and the consequences for
violation the restrictions.
o “English-only” rules are never valid during an employee’s non-work time
(e.g., breaks, lunch, unpaid employer sponsored events, etc.).
Discrimination based on accent is unlawful unless the accent interferes materially
with the applicant’s ability to perform the job.
Discrimination based on English proficiency may be unlawful unless it is justified
by business necessity.
Discovery into and discrimination based on immigration status is unlawful, unless
necessary to comply with federal immigration law.
What should you do now? Train hiring staff to be aware of the new regulations and to
be sensitive to the kinds of questions they ask regarding national origin. Assess whether
any positions at your company reasonably require English proficiency.
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2018 Case Law Developments
1. Caldera v. Dept. of Corrections & Rehab., 25 Cal. App. 5th 31 (2018).
Facts: Augustine Caldera worked as a correctional officer in a state prison.
Caldera is an individual with a speech impediment that causes him to stutter or
stammer. Over a period of about two (2) years, Caldera mocked or mimicked at
least a dozen times, including by his supervisor (Sergeant James Grove), and in
front of other employees. The jury found the harassment to be both severe and
pervasive and awarded Caldera $500,000 in noneconomic damages.
Holding: The Court of Appeal found that the jury’s award was appropriate
because the “totality of the circumstances” indicated that the harassing conduct
was severe. Although neither plaintiff nor his witnesses could remember exactly
how many times plaintiff was mocked or when exactly he was subject to any
mocking, the court found that the employer’s culture supported the jury’s finding
that the harassing conduct was also pervasive.
Practical Implications: This case underscores the importance of being
proactive to workplace concerns, and that harassment training (without follow up)
is not enough to avoid an adverse jury verdict, and that California jurors and
courts will not tolerate disrespectful/harassing conduct by supervisors in the
workplace.
2. Ayon v. Esquire Deposition Solutions, LLC, 27 Cal. App. 5th 487 (2018).
Facts: Jessica Ayon was struck by a vehicle while the operator of the vehicle
was speaking to a co-worker on a hands-free cell phone. Ayon filed a personal
injury suit against the driver of the vehicle, and the driver’s employer, Esquire
Deposition Solutions, claiming that Esquire was vicariously liable because the
driver had been performing work duties when her injury occurred. The driver
claimed that she and her co-worker were talking about their families.
Holding: The court held that the employer was not liable because Ayon did not
have sufficient evidence to establish that driver had been lying about performing
work duties when the crash occurred.
Practical Implications: This case exemplifies the potential dangers of vicarious
liability. The employer barely escaped liability for an accident which occurred off
its premises and while the employee was “off the clock.” Employers should take
this as a warning and clearly identify the manner in which employees may
perform work duties off their premises.
3. Nunies v. HIE Holdings, Inc., 908 F.3d 428 (9th Cir. 2018).
Facts: Herman Nunies was a delivery driver who injured his shoulder and
wanted to be transferred to a less-physical position. The employer approved his
request for transfer until it learned that Nunies wanted the transfer because of his
injury and forced him to resign instead. Nunies sued his employer under the
Americans with Disabilities Act and state law, alleging disability discrimination.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-162019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
Holding: Regardless of whether Nunies could show that he was actually
disabled under statute, the employer may have “regarded him as disabled” and
discriminated against him on that basis.
Practical Implications: This case demonstrates the potential risk created by the
ADA’s protection where an employer regards an employee as disabled.
Although Nunies’ injury may have been transitory or minor, and therefore not a
protected disability, the court focused on whether the employer could have
subjectively believed that Nunies was disabled.
4. AMN Healthcare Inc. v. Aya Healthcare Servs., Inc., 28 Cal.App.5th 923 (2018).
Facts: AMN Healthcare, Inc., which was a recruiter for temporary nursing
workers, sued its former employees for breach of contract and misappropriation
of confidential information after they left and joined their competitor Aya
Healthcare Services, Inc., in violation of a signed non-solicitation agreement.
Aya counterclaimed that the employees’ non-solicitation agreement was an
unenforceable restraint.
Holding: The court held that AMN’s employee non-solicitation agreement was
unenforceable because it clearly restrained the travelling nurse recruiters from
practicing their chosen specialty.
Practical Implications: This case left uncertain the ongoing viability of employee
non-solicitation provisions under California law. Employers who would like to
have non-solicitation provisions in employment agreements should examine their
current agreements and consider whether to revise them containing less
restrictive terms.
5. Martinez v. Eatlite One, Inc., 27 Cal. App. 5th 1181 (2018).
Facts: Samantha Martinez, a sandwich-maker and cashier, sued her employer,
Eatlite for various claims including employment discrimination in violation of
public policy and, gender and pregnancy discrimination. The employer made a §
998 offer of settlement ($12,001 and was silent as to whether this amount
included attorneys’ fees and costs), which Martinez ignored and took the case to
trial. The jury found in favor of Martinez ($11,490) and the trial court granted her
motion for attorney’s fees and costs because the employer’s § 998 offer did not
indicate whether it included attorney’s fees and costs.
Holding: The court held that the lower court should have compared the jury’s
award plus pre-offer costs and fees with the § 998 offer plus pre-offer costs and
fees, despite the § 998 offer having been silent on the costs and fees.
Practical Implications: This case indicates the importance of careful drafting
where calculations of cost are dispositive. Employers should inspect, and
encourage their counsel to inspect, § 998 offers for any potential ambiguities
regarding cost calculations and be sure to include language that the offer
includes pre-offer costs and fees.
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-172019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
6. Dynamex Operations West, Inc. v. Superior Court of LA, 4 Cal. 5th 903 (2018),
rehearing denied (June 20, 2018).
Facts: Delivery drivers working for Dynamex, a package and document delivery
company, claimed that they were misclassified as independent contractors rather
than employees.
Holding: A worker is properly considered an independent contractor only if the
company hiring the worker establishes all of the following: (A) the worker is free
from the control and direction of the hiring company “in connection with the
performance of the work, both under the contract for the performance of the work
and in fact”; (B) “the worker performs work that is outside the usual course of the
hiring company’s business”; and (C) the worker is “customarily engaged in an
independently established trade, occupation, or business of the same nature” as
the work performed for the hiring entity.
Practical Implications: The takeaway for employers is that, under the “ABC
test”, the worker must satisfy all three (3) of the criteria to be properly classified
as an “independent contractor.” Companies that engage workers as
“independent contractors” to perform services should evaluate whether they can
satisfy the “ABC test.”
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-182019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
APPENDIX A
The chart below summarizes California local minimum wage increases scheduled for
2019.
California City Effective Date
2018 Rate 2019 Rate
or County of Increase
January 1,
Belmont $12.50 $13.50
2019
TBA; est.
Berkeley July 1, 2019 $15.00
$15.65
January 1,
Cupertino $13.50 $15.00
2019
January 1,
El Cerrito $13.60 $15.00
2019
$15.69 TBA; est.
(56 or more employees) $16.00
Emeryville July 1, 2019
$15.00 TBA; est.
(55 or fewer employees) $16.00
$14.64 (hotels)
Long Beach July 1, 2019 $14.37 (airport/convention TBA
center)
January 1,
Los Altos $13.50 $15.00
2019
$13.25
$14.25
(26 or more employees)
Los Angeles
July 1, 2019
(City)
$12.00
$13.25
(25 or fewer employees)
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-192019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
$13.25
Los Angeles $14.25
(26 or more employees)
County
July 1, 2019
(unincorporated
$12.00
areas) $13.25
(25 or fewer employees)
$13.25
$14.25
(26 or more employees)
Malibu > July 1, 2019
12.00
$13.25
(25 or fewer employees)
Milpitas July 1, 2019 $13.50 $15.00
January 1,
Mountain View $15.00 $15.65
2019
January 1,
Oakland $13.23 $13.80
2019
January 1,
Palo Alto $13.50 $15.00
2019
$14.25
$13.25 (pending
(26 or more employees) council
approval)
Pasadena July 1, 2019
$14.25
12.00 (pending
(25 or fewer employees) council
approval)
January 1,
Redwood City N/A $13.50
2019
January 1, $13.41 (without qualifying
Richmond $15.00
2019 healthcare benefits)
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-202019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
$11.91
(with qualifying healthcare $13.50
benefits)
January 1,
San Diego $11.50 $12.00
2019
TBA; est.
San Francisco July 1, 2019 $15.00
$15.65
January 1,
San Jose $13.50 $15.00
2019
San Leandro July 1, 2019 $13.00 $14.00
13.50 $15.00
January 1,
San Mateo
2019
$12.00
$13.50
(nonprofit employers)
January 1,
Santa Clara $13.00 $15.00
2019
$13.25
$14.25
(26 or more employees)
Santa Monica July 1, 2019
$12.00
$13.25
(25 or fewer employees)
January 1,
Sunnyvale $15.00 $15.65
2019
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-212019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
California Unions Continue Innovative Strategies
to Increase Membership
by Maria Anastas
On January 18, 2019, the U.S. Bureau of Labor Statistics reported that in 2018, 10.5
percent of workers in the United States were members of unions, down 0.2 percent from 2017.1
Although union membership continues to decline year over year in the United States, California
remains a bright spot for unions relative to other states.2 In 2018, 2.4 million workers in
California belonged to unions.3 This is the largest total number of unionized workers per state
and is over 16 percent of the total number of unionized workers nationwide.4
At least one reason union membership in California remains high is because unions are
increasingly using creative, nontraditional strategies to try to organize new employees (i.e.,
outside National Labor Relations Act (“NLRA”) elections). These strategies include:
(1) sponsoring state legislation and ballot measures that create favorable organizing conditions
and/or provide unions with added leverage over non-union employers, (2) bringing litigation
under environmental and zoning laws to delay or halt the construction of non-union real estate
projects, and (3) using social media to expand outreach.
Recent examples of unions deploying these strategies include: (1) the Service
Employees International Union and United Healthcare Workers West’s attempts to regulate
kidney dialysis clinics via state legislation and ballot initiative; (2) UNITE HERE! Local 30 and
the San Diego County Building and Construction Trades Council’s use of environmental and
zoning litigation to delay and block the redevelopment of a prominent, non-union hotel in San
Diego, California; (3) the Southwest Regional Council of Carpenters and Laborers International
Union of North America Local 300’s similar effort to delay and block the development of a non-
union, real estate project in Panorama City, California under the California Environmental
Quality Act (“CEQA”); and (4) a Teamsters’ organizing video posted on Facebook that appeals
to workers in the shipping and logistics industries.
As employers consider their California operations, they should bear in mind that unions
appear to be favoring political strategies at the state and local levels, non-NLRA litigation, and
social media to achieve their organizing objectives in lieu of traditional NLRA elections. Unions
are relying on these nontraditional strategies to regulate entire industries and create conditions
that make it easier for them to organize employees industry-wide. And, although the strategies
do not always succeed, they create new and costly obstacles for California employers.
A. Legislative Attempts to Regulate Kidney Dialysis Clinics for Leverage – AB
251, SB 349, Proposition 8, and SB 1156
Since 2017, the Service Employees International Union and United Healthcare Workers
West (“SEIU-UHW”) have sponsored and supported state legislation and a ballot measure to
force changes in the kidney-dialysis-clinic industry.5 Although SEIU-UHW marketed these
efforts as seeking to improve patient care, they were largely seen as an organizing effort to
increase union membership through legislative control over the dialysis industry and its
workers.6
In 2017, SEIU-UHW sponsored Assembly Bill (“AB”) 251, which sought to establish a
“medical loss” ratio for kidney dialysis clinics.7 The medical loss ratio would have required the
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-222019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
clinics to spend at least 85 percent of their revenue on direct patient care, health care quality
improvement, and taxes and license fees.8 Clinics that did not meet this ratio would have been
required to issue rebates to patients or non-governmental entities paying for the patients’ care in
an amount sufficient to meet the minimum spending of 85 percent.9 AB 251 failed to move
forward in the Legislature as a dialysis clinics bill.
Senate Bill (“SB”) 349 was also introduced in 2017 and was supported by SEIU-UHW.
SB 349 set out certain requirements for minimum staffing ratios for dialysis clinics and minimum
transition time between dialysis patients.10 The stated purpose of SB 349 was “to improve the
quality of patient care at dialysis centers by increasing frequency of inspections, requiring a
higher level of staffing, and imposing a minimum transition time between patients at dialysis
machines.”11 In August 2018, a California Senator removed the dialysis language from the bill
and SB 349 no longer dealt with kidney dialysis clinics.12
After AB 251 and SB 349 failed, SEIU-UHW backed similar legislation again in 2018 –
Proposition 8, the “Fair Pricing for Dialysis Act” and SB 1156.
Proposition 8 would have capped dialysis center revenues at 115 percent of specified
“allowable” costs related to patient care.13 Such “allowable” costs included the costs of staff
wages and benefits, staff training and development, drugs and medical supplies, facilities, and
electronic health information systems.14 In other words, dialysis corporation revenues could be
no more than 15 percent above the amount they spend on costs related to patient care.
Revenue earned above the 115 percent cap would have needed to be refunded to patients or
entities paying for the patients’ care each year.15 Clinics that did not issue required refunds
within 210 days after the end of the fiscal year would have been fined an amount equal to 5
percent of their total required refunds, but not to exceed $100,000.16
Supporters and opponents spent vast sums of money fighting over Proposition 8. SEIU-
UHW raised almost $19 million.17 The state’s two largest dialysis businesses spent $100
million.18 On November 6, 2018, voters rejected Proposition 8 by several million votes.19
SB 1156 would have required entities that provide premium assistance payments (e.g.,
charities) to dialysis patients to: (1) certify that a patient is not eligible for Medicaid and disclose
whether the patient would be eligible for Medicare; (2) inform the patient of all available health
coverage options, including, but not limited to, Medicare, Medicaid, individual market plans, and
employer plans; (3) disclose the patient’s name to the health insurer and California Department
of Health 60 days prior to making the initial payment; and (4) pay premiums for the full-plan
year, even if treatment is stopped.20 In effect, SB 1156 would have made it more difficult for
dialysis patients to use money received from third-parties, including charities, to help pay for
private insurance coverage.21 In August 2018, the Legislature voted in favor of the bill and sent
it to Former California Governor Jerry Brown.22 He vetoed it on September 30, 2018.23
B. Using Environmental and Zoning Litigation to Block Non-Union Real Estate
Projects
Select construction and hospitality unions have adopted another nontraditional strategy
to achieve their organizing objective in California. These unions are using environmental and
zoning litigation to leverage real estate developers into agreeing to use only union labor on their
projects. Labor’s use of this strategy became public after two real estate developers filed
lawsuits in federal court against the unions challenging whether the strategy violated federal
racketeering and antitrust laws, and the Labor Management Reporting Act, among other
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-232019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
statutes. The complaints contain detailed allegations about how certain unions have delayed or
thwarted large-scale, non-union construction projects in California over the past 10 years
through environmental and zoning challenges.
The first lawsuit was filed on December 7, 2018. In Evans Hotels, LLC et al. v. Unite
Here! Local 30 et al., 3:18-cv-02763-H-KSC, the developer alleges that UNITE HERE! Local 30
and the San Diego County Building and Construction Trades Council (“Unite Here-BCTC”),
falsely challenged whether the developer’s redevelopment of its San Diego hotel complied with
environmental and zoning laws in an effort to force the developer to sign a project labor
agreement (“PLA”) and a card check neutrality agreement.24 PLAs typically require that
developers use only union labor on a construction project. Under a card check neutrality
agreement, an employer agrees to recognize a union automatically if a majority of employees
sign cards authorizing the union to be their representative. In the case of PLAs, employers
agree at the outset to only use union labor, and in the case of card check neutrality agreements,
it is very rare that a “card check” results in a “no” for unionization. Thus, these agreements
almost inevitably guarantee that union labor will be used to construct a development and then
be used to operate it. The San Diego developer also alleges that Unite Here-BCTC continued
to oppose and file environmental litigation over the project because the developer repeatedly
refused to sign a card check neutrality agreement or project labor agreement.25 These tactics
continued and indefinitely delayed the redevelopment of the hotel.26
The second lawsuit was filed January 9, 2019. Similar to the first, in The Icon at
Panorama, LLC v. Southwest Regional Council of Carpenters, et al., 2:19-cv-00181, a real
estate developer alleges that the Southwest Regional Council of Carpenters and Laborers
International Union of North America Local 300 (“SRCC” and “LIUNA”) falsely challenged
whether the developer’s mixed-use apartment and commercial development in Panorama City
complied with environmental laws in an effort to force the developer to sign a PLA, agreeing to
use union labor to build the development.27 SRCC and LIUNA allegedly told the developer that
SRCC and LIUNA would drop their environmental challenges to project if the developer agreed
to use exclusively union contractors on the project.28 The developer refused.29 And again,
these tactics continued and indefinitely delayed the construction of the development.30
C. Expanding Outreach Through Social Media
Unions are also expanding their use of social media to achieve their organizing
objectives. In California, the Teamsters created an organizing video for the shipping and
logistics industries and posted it to Facebook.31 It provides an instructive example of how
unions are using the social media platform to reach out to new generations of workers. The
video compares the out-of-pocket health costs for union and non-union workers from various
companies shipping and logistics industries, and uses the slogan, “Whose got my back? The
Teamsters got my back” to garner support from non-union workers watching the video. The
video has been viewed 14,000 times in the last six months and has been shared over 280 times
on Facebook.
D. Takeaways
There are several important takeaways from the organizing strategies described above.
First, in California, SEIU-UHW and other unions have changed their organizing
strategies to adapt to the political environments and opportunity structures. Unions are using
direct political action to create more favorable conditions for organizing, as opposed to resorting
OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. 2-242019 NAVIGATING CALIFORNIA EMPLOYMENT LAW
to NLRA-sanctioned elections. We anticipate that unions will be more inclined to resort to such
measures given the California Legislature’s receptiveness to such union-sponsored ballot
measures and the national political climate. Indeed, SEIU-UHW has already indicated that it
plans to refile a proposition similar to Proposition 8 and a new version of SB 1156 in the 2020
election cycle.32
Second, although these strategies have had mixed success, fighting them has come at
great expense in time and resources for both the unions and employers involved. The SEIU-
UHW’s legislative attempts to regulate dialysis failed, but the state’s two largest dialysis
businesses reportedly spent over $100 million opposing a single ballot measure. This cost is
exponentially higher than fighting a traditional union organizing campaign.
Third, the construction and hospitality unions’ use of the state’s environmental and
zoning laws as a labor bargaining tool has been an effective organizing tool. The lawsuits
discussed above reveal that unions have been effectively wielding environmental and zoning
litigation for over a decade to achieve their goal of union-only real estate projects. The lawsuits
challenging the legality of this strategy are the first of their kind in California. Accordingly,
developers around the state should watch them closely to see if the tactics are upheld as legal.
Until the courts resolves the lawsuits, however, real estate developers in California should
expect similar challenges from unions.
Fourth, social media is a powerful organizing tool. It is also tool that requires little to no
cost for unions as Facebook and other social media platforms do not charge to post content.
The content can also have more of a lasting effect as it remains on the platform until removed
by the individual who posted it, and can be continually shared and re-shared over the course of
many months. The Teamster video—a low cost production—sends a powerful message to the
unrepresented workers who may view it.
Fifth, the California labor movement’s refocused organizing efforts may be viewed, at
least partially, as a reaction to the U.S. Supreme Court’s decision in Janus v. American
Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448 (2018)
(“Janus”). Janus held that public-sector unions cannot require employees to pay a fee to cover
the union’s costs to negotiate a collective bargaining agreement that applies to all employees. 33
Banning the mandatory payment of these fees means that certain public-sector, unionized
employees will inevitably opt out of paying their union any money at all, which, in turn, will lead
to fewer funds in the unions’ coffers. To combat this shortfall, these unions may be exploring
alternative means to add other union-paying members to their ranks. Unions – particularly
unions with large public-sector contingents who stand to lose the most dues-paying members,
like SEIU-UHW – may achieve this objective by using these nontraditional organizing tactics to
adapt to the post-Janus world as they may add new members to the union’s ranks.
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