No Rest For The Weary – California Employment Legislation Update
California lawmakers passed over a dozen employment-related bills last year that imposed new or different obligations on California employers. Just as employers may be finally settling into the new world order and getting into compliance with the litany of new laws, there are two new legislative updates that employers must be aware of. These new pieces of legislation serve as an important reminder that employment laws are constantly changing, and employers caught flat footed may be left to suffer the consequences.
In a welcome change from Sacramento, on February 26, 2019, the California Senate introduced Senate Bill 778, which is designed to clarify when employers are required to provide sexual harassment training and education to employees under California’s Fair Employment and Housing Act and when retraining is required.
Last year, the Legislature enacted Senate Bill 1343, which expanded an employer’s sexual harassment training and education obligations. Under the new law, and by January 1, 2020, employers with 5 or more employees (including temporary or seasonal employees), must provide at least 2 hours of sexual harassment training to all supervisory employees and at least one hour of sexual harassment training to all nonsupervisory employees. Employers must provide the required training within six months of hire and once every 2 years thereafter. The existing law specifies that an employer who has provided this training to an employee after January 1, 2019 is not required to provide sexual harassment training and education by the January 1, 2020 deadline.
After this law was enacted, confusion arose among employers who were already providing anti-harassment training to their nonsupervisory employees. Due to the deadline imposed by the new law, some of these employees would have to participate in the training twice in a 2-year period, at cost to the employer and providing little additional benefit to the employee.
The Senate introduced S.B. 778 to clear up some of the confusion regarding these new training requirements in two important ways. First, S.B. 778 extends an employer’s deadline to provide sexual harassment training and education by a full year, resetting the compliance deadline to January 1, 2021. Second, the bill makes clear that an employer who has provided the required training and education to an employee in 2019 is not required to provide refresher training and education again until two years thereafter. As a result, employers already offering compliant training in 2019 can delay refresher training until 2 years after the date of the training, rather provide another round of training by the January 2021 deadline.
Apart from proposed legislation, employers must also be aware of new poster and handbook regulations that have already taken effect. Effective April 1, 2019, California Code of Regulations, tit. 2, § 11095 imposed two new requirements that change the mandatory notices that must be posted in the workplace. First, every employer covered by the California Family Rights Act (“CFRA”) and/or New Parent Leave Act (“NPLA”) is required to conspicuously post a notice explaining the two Acts’ provisions and providing information concerning the procedures for filing complaints of violations of the Acts with the Department of Fair Employment and Housing. Previously, only employers covered by the CFRA, i.e. employers with 50 or more employees, had to post this type of notice. Now, employers with 20 to 49 employees will need to post the new notice on their premises, and employers with 50 or more employees will need to update their existing notice.
Second, this updated regulation imposes a new requirement on what must be contained in an employer’s handbook. If the employer publishes a handbook that describes other kinds of personal or disability leaves available to its employees, that employer must include a description of CFRA and/or NPLA leave in the next edition of the handbook that is published following April 1, 2019. The regulations make clear that the employer may utilize a single notice that explains both pregnancy disability leave and CFRA and/or NPLA leave requirements.
While these new changes may appear technical in nature, it is nonetheless crucial that employers heed these new developments and react accordingly. For employers navigating the new regulations related to sexual harassment training, Senate Bill 778 provides additional clarity regarding the time frame by which employers must be in compliance and an employer’s responsibilities vis-à-vis employees who have already been providing sexual harassment training and education. As concerns California’s updated handbook and poster requirements, employers who previously may not have had to post any notices regarding certain types of leave are now required to do so. And for those employers who already post notices regarding available leaves, it is necessary to revisit those posters to ensure they include all of the required items of information.