MCLE Self-Study: New Employment Laws for 2019

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MCLE Self-Study: New Employment Laws for 2019

By Michael S. Kalt and David J. Duchrow

Michael S. Kalt is a partner at Wilson Turner Kosmo LLP in San Diego, and represents employers against discrimination, harassment, retaliation, and wage and hour claims. David Duchrow is a partner in Duchrow & Piano, LLP, a Santa Monica-based firm representing workers and unions for 35 years.

A new calendar year generally brings a number of new state laws for California employers to consider, and 2019 is no exception. Accordingly, discussed below are the new laws of general application for California employers, followed by those particularly applicable to public sector or unionized employers. Unless otherwise indicated, each law takes effect January 1, 2019.

NEW GENERALLY APPLICABLE LAWS

Expanded Sexual Harassment Training Requirements (SB 1343)

Presently, so-called AB 1825 harassment training (codified at Government Code § 12950.1) applies only to larger employers (i.e., with 50 or more employees) and only requires this training for supervisory employees. The expanded law responds to concerns that these limitations excluded most small and medium-sized employers from providing any mandatory harassment training, and precluded requiring larger employers from having to provide training to arguably the most vulnerable employees (i.e., non-supervisory employees).

Accordingly, SB 1343 amended Government Code § 12950.1 to require that by January 1, 2020, employers with five or more employees (including temporary and seasonal employees) provide the AB 1825 harassment training to all employees, not just supervisory employees, within six months of their hire. However, the mandatory harassment training required for non-supervisory employees is for one hour, rather than the two hours for supervisory employees. The employer may provide this training in conjunction with other training provided to the employees. The training may also be completed by the employee individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly requirement is met.

The California Department of Fair Employment and Housing (DFEH) will be required to develop a one-hour and a two-hour sexual harassment online training video (corresponding to non-supervisory or supervisory employees, respectively) and make it available on its web site, to develop these materials in at least six languages (English, Spanish, Simple Chinese, Korean, Tagalog and Vietnamese), and to provide them to an employer upon request.

Employers will have the option to develop their own training modules or to direct employees to view the DFEH’s training video, and this shall be deemed to have satisfied the employer’s training obligations under § 1343. The DFEH will also be responsible for providing a method for employees who have completed the training to electronically save and print a certificate of completion.

Employers who provide this harassment training after January 1, 2019, are not required to provide additional training and education by the January 1, 2020 deadline, but thereafter must provide such harassment training to all California employees every two years.

Beginning January 1, 2020, for seasonal and temporary employees, or employees hired to work for fewer than six months, an employer must provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. However, where the temporary employee is employed by a temporary services provider (as defined in Labor Code § 201.3) to perform services for clients, the temporary services provider and not the client shall provide the training.

Beginning January 1, 2020, sexual harassment prevention training for migrant and seasonal agricultural workers (as defined in 29 U.S.C. §§ 1801, et seq.) shall be consistent with the training for nonsupervisory employees under Labor Code § 1684(a)(8).

In addition to these new generally applicable training requirements, California also enacted new industry-specific harassment and/or training requirements for talent agencies (AB 2338) and building and construction apprenticeships (AB 2358).

"Omnibus" Sexual Harassment Bill (SB 1300)

This law makes numerous changes to the Fair Employment and Housing Act (FEHA). First, it expands the potential content of so-called AB 1825 harassment training by adding new Government Code § 12950.2 to allow this training to include "bystander intervention training." "Bystander intervention training" means providing information and practical guidance to enable bystanders to recognize potentially problematic behaviors, and provide the motivation, skills, and confidence to intervene as appropriate.

Second, while FEHA presently provides that employers may be liable for the acts of non-employees with respect to sexual harassment of employees, applicants, unpaid interns, or volunteers, SB 1300 extends that liability to any form of harassment, not just sexual.

Third, it adds new Government Code § 12964.5 to prohibit employers from requiring the execution of a "release of a claim or a right" under FEHA in exchange for a raise, bonus, or as a condition of employment or continued employment. "Release of a claim or right" includes requiring an individual to sign a statement averring they do not possess any claim or injury against the employer, and includes the right to file and pursue a civil action or complaint with, or otherwise notify, a state agency, public prosecutor, law enforcement agency, or any court or other governmental entity.

It also precludes employers from requiring an employee to sign a non-disparagement agreement or other document prohibiting an employee from disclosing information "about unlawful acts in the workplace," including but not limited to sexual harassment.

It also nullifies any such improper "releases" or "non-disparagement provisions" as contrary to public policy. However, this section does not apply to a negotiated settlement agreement to resolve an underlying claim under FEHA that has been filed by the employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process. "Negotiated" means that the agreement is voluntary, deliberate and informed, provides consideration to the employee, and the employee is given notice and an opportunity to retain an attorney or is represented by an attorney.

It also amends FEHA’s costs provisions which presently authorize the court to award a prevailing party reasonable attorney’s fees and costs, including expert witness fees. As amended, a prevailing defendant will be precluded from being awarded fees and costs unless the court finds the action was frivolous, unreasonable, or groundless when brought or that the plaintiff continued to litigate after it clearly became so. This limitation on the defendant’s costs recovery applies notwithstanding the provisions of Civil Procedure Code § 998 (i.e., if the defendant offered a pre-judgment offer to compromise greater than the plaintiff’s trial recovery.)

Lastly, this law contains a number of Legislative declarations concerning the appropriate legal standard courts should consider when evaluating harassment claims. These include that harassment cases are rarely appropriate for summary judgment, that a single instance of harassment may be sufficient for a hostile work environment claim, and that courts should not apply the so-called "stray remarks" doctrine developed under federal law.

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Confidentiality Limits for Sexual Harassment Settlement Agreements (SB 820)

This law responds to concerns that nondisclosure provisions in sexual harassment settlement agreements conceal and perpetuate harassing behavior. Accordingly, new Civil Procedure Code § 1001 will prohibit settlement agreement provisions preventing the disclosure of "factual information related to a claim filed in a civil action or a complaint filed in an administrative action" regarding: (1) sexual assault (as defined) (2) sexual harassment under the Unruh Act, (3) workplace sexual harassment, sex discrimination or retaliation against a person for reporting sex harassment or discrimination under the FEHA; or (4) harassment or discrimination based on sex, or retaliation, by the owner of a housing accommodation (as defined). It further prohibits the court from entering any stipulation or order that restricts the disclosure of information in a manner that conflicts with this new section.

Any such provisions entered into on or after January 1, 2019 will be deemed void as against public policy.

This general prohibition does not apply to nondisclosure provisions regarding the identity of the claimant (or facts that would lead to the discovery of their identity), if requested by the claimant, as opposed to the employer or defendant, unless a government agency or public official is a party to the settlement agreement. It also does not prohibit provisions precluding the disclosure of the amount paid in settlement of a claim (as opposed to the "factual information" underlying the claim).

Targeting Provisions Precluding Sexual Harassment-Related Testimony (AB 3109)

This law seeks to limit the use of nondisclosure provisions in contracts or settlement agreements that preclude a sexual harassment victim from discussing misconduct when otherwise compelled to do so. Accordingly, new Civil Code § 1670.11 will render void and unenforceable any contractual or settlement agreement provision entered into on or after January 1, 2019 that waives a party’s right to testify in any proceeding concerning alleged criminal conduct or sexual harassment by the other party or the other party’s employees/agents when the testifying party has been required or requested to attend by court order/subpoena or by written request by an administrative agency or the legislature. This new section does not eliminate all nondisclosure agreements, and does not enable a signatory to simply voluntarily show up and speak at a public hearing, but it will enable them to do so in response to a subpoena, a court order, or written request from an administrative agency.

Expanded Sexual Harassment Liability in Business, Service, or Professional Relationships (SB 224)

In addition to FEHA, which governs workplace sexual harassment, Civil Code § 51.9 prohibits sexual harassment in various business, service, or professional relationships that are either specifically identified in the statute or that are "substantially similar" to those identified. Responding to recent high-profile sexual harassment allegations, this law specifically identifies investors, elected officials, lobbyists, and directors or producers as types of individuals who can be liable for sexual harassment occurring within the business, service, or professional relationship. It also removes the previous requirement that an individual who sues for sexual harassment must demonstrate that this relationship would not be easy to terminate.

Responding to concerns that some harassers use the prospect of future work to initiate unwelcome sexual harassment, this law also imposes liability for sexual harassment upon individuals who hold themselves out as being able to help the plaintiff establish a business, service or professional relationship with the defendant or a third party.

It also amends FEHA (specifically Government Code §§ 12930(f)(2) and 12948) to authorize the DFEH to handle sexual harassment complaints arising from these non-employer relationships and to specify that it will be an unlawful practice under FEHA for a person to aid or conspire in the denial of rights in Civil Code § 51.9.

New Defamation Protections for Sexual Harassment Complaints, Investigations, and References (AB 2770)

This law addresses concerns that a fear of potential defamation liability dissuades harassment complaints from being made or from being investigated, or dissuades former employers from advising prospective employers about a former employee’s sexually harassing behavior. Accordingly, it amends Civil Code § 47(c) to provide that the so-called "common interest" privilege applies to statements made "without malice" relating to a complaint of sexual harassment by an employee to an employer based upon credible evidence. It also applies to subsequent communications by the employer to other "interested persons" during a sexual harassment investigation.

Perhaps most significantly for employers, it amends Civil Code § 47(c) to provide a so-called "safe harbor" against defamation liability, allowing employers to provide information during reference checks involving employees who previously engaged in sexually harassing behavior. While this section previously provided immunity for non-malicious responses as to whether the employee in question was eligible for rehire, this amendment now allows the employer or its agent to indicate whether the decision to not rehire is based upon the employer’s determination that the former employee engaged in sexual harassment.

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Human Trafficking Awareness Training for Hotel Employees (SB 970)

Reflecting the Legislature’s recent focus on combating human trafficking, this law amends FEHA to require certain employers (i.e., hotels and motels, but not bed and breakfast inns [as defined under the Business and Professions Code]) to provide training regarding human trafficking. Specifically, by January 1, 2020, covered employers must provide at least 20 minutes of classroom "or other interactive training and education" regarding human trafficking awareness to each employee "likely to interact or come into contact with human trafficking" (as defined) and employed as of July 1, 2019, and to each such employee within six months of their employment in such a role. After January 1, 2020, employers must provide such human trafficking awareness training to such employees every two years. (Covered employers who have already provided this training after January 1, 2019 will be exempted from the January 1, 2020 deadline but would be required to provide the biannual training thereafter).

The training must include the following: (1) the definition of human trafficking and commercial exploitation of children; (2) guidance on how to identify individuals most at risk for human trafficking; (3) the difference between labor and sex trafficking specific to the hotel sector; (4) guidance on the role of hospitality employees in reporting of and responding to human trafficking; and (5) the contact information of appropriate agencies. Employers are not precluded from providing additional training beyond these requirements, and are also permitted to use information provided by certain specified federal agencies, including the Department of Justice.

The failure to provide this training shall not "by itself" result in the employer’s or employee’s liability to human trafficking victims. The DFEH will also have the authority to issue an order requiring compliance.

Lactation Area Cannot be a Bathroom (AB 1976)

Presently, Labor Code § 1031 requires employers to make reasonable efforts to provide an employee with the use of a room or other location "other than a toilet stall" for purposes of expressing milk at work. Responding to concerns this language permitted usage of a bathroom, as opposed to simply a toilet stall, for lactation purposes, amended Labor Code § 1031 makes clear that an employer must make reasonable efforts to provide an employee with the use of a room or other location, other than a bathroom. In doing so, it conforms the Labor Code to the federal Affordable Care Act, which specifies that the space for lactation purposes cannot be a bathroom.

However, if an employer can demonstrate to the department that the "other than a bathroom" requirement would impose an undue hardship when considered in relation to the size, nature, or structure of the employer’s business, the employer must still make reasonable efforts to provide a location other than a toilet stall in close proximity to an employee’s work area.

This law also specifies that an employer may comply with these requirements by providing a "temporary lactation location" if all of the following conditions are met: (1) the employer is unable to provide a permanent lactation location because of operational, financial or space limitations; (2) the temporary lactation location is private and free from intrusion while an employee expresses milk; (3) the temporary lactation location is used only for lactation purposes while an employee expresses milk; and (4) the temporary lactation location otherwise meets California requirements concerning lactation accommodation.

Similarly, it provides that an agricultural employer (as defined) will comply with this section if it provides an employee wanting to express milk with a private, enclosed, and shaded location, including, but not limited to, the air-conditioned cab of a truck or tractor.

Required Number of Female Directors for California Corporations (SB 826)

This law requires that by no later than the close of the 2019 calendar year, each publicly held, domestic, or foreign corporation with its principal executive offices in California must have at least one female on its board of directors. The corporation will be permitted to increase the number of directors on its board to comply with this requirement. By the close of the 2021 calendar year, the corporation must have at least two female directors if the corporation has five authorized directors or three female directors if the corporation has six or more authorized directors.

For purposes of these requirements, "female" means "an individual who self-identifies her gender as a woman, without regard to the individual’s designated sex at birth." A "publicly held corporation" means a corporation with "outstanding shares listed on a major United States stock exchange."

The law also requires the Secretary of State to publish various reports on its web site documenting the number of corporations in compliance with these provisions, and to impose fines for noncompliance. The Secretary of State may impose fines for violating this section of $100,000 for the first violation and $300,000 for each subsequent violation.

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Clarifications Regarding Ban on Prior Salary History Inquiries (AB 2282)

In 2017, California enacted AB 168 precluding employers from inquiring about prior salary history and requiring employers to provide upon reasonable request by an applicant a pay scale for a position. However, employers have subsequently raised numerous questions, including who is considered "an applicant," what is a "pay scale" and what constitutes a "reasonable request?"

This law is intended to clarify several of the provisions and terms used in AB 168. Specifically, it amends Labor Code § 432.3 to define "pay scale" as a "salary or hourly wage range." It defines "reasonable request" as a "request after an applicant has completed an initial interview with the employer," and further defines "applicant" and "applicant for employment" as "an individual who is seeking employment with the employer and is not currently employed with that employer in any capacity or position." It also adds new subsection (i) specifying that § 432.3 does not prohibit an employer from asking an applicant about his or her salary expectation for the position.

In 2015, California amended its Equal Pay Act (Labor Code § 1197.5) to state that "prior salary shall not, by itself, justify any disparity in compensation." This law strikes the "by itself" language and makes clear that prior salary history "shall not justify any disparity in compensation." It further makes clear that while an employer may make a compensation decision based on a current employee’s existing salary, any wage differential resulting from that compensation decision must be justified by one or more of the specified factors in § 1197.5 (e.g., seniority system, merit system, etc.).

Clarified and Tightened Exceptions to "Ban the Box" Limitations (SB 1412)

In recent years, including in the "ban the box" law implemented in 2017 (AB 1008), California has enacted various limitations on an employer’s ability to obtain or consider information related to an applicant’s or employee’s conviction history. However, Labor Code § 432.7 has also identified various exceptions from these general prohibitions, including if the inquiries are required by other state or federal law.

This law tightens several of these exceptions in subsection (m) and limits their consideration to only "particular" convictions, the goal being to prevent the consideration of convictions other than those that would specifically bar the applicant from holding the desired position. Specifically, it is intended to address concerns that employers who were authorized to obtain and consider information about particular disqualifying convictions were running more general conviction history checks that allowed them to obtain and potentially consider items, including expunged or judicially dismissed convictions, beyond the particular disqualifying conviction.

Accordingly, it specifies these "ban the box"-type limitations do not prohibit an employer from asking an applicant about, or seeking from any source information regarding, a particular conviction of the applicant if, pursuant to state or federal law, (1) the employer is required to obtain information regarding the "particular" conviction of the applicant, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; (2) the applicant would be required to possess or use a firearm in the course of employment; (3) an individual with that "particular" conviction is prohibited by law from holding the position sought, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation; or (4) the employer is prohibited by law from hiring an applicant who has that "particular" conviction, regardless of whether the conviction has been expunged, judicially ordered sealed, statutorily eradicated, or judicially dismissed following probation.

It further defines "particular conviction" as a "conviction for specific criminal conduct or a category of criminal offenses prescribed by any federal law, federal regulation or state law that contains requirements, exclusions, or both, expressly based on that specific criminal conduct or category of criminal offenses."

It also clarifies this new law would not prohibit employers required by state, federal, or local law to conduct criminal background checks for employment purposes. It also allows an employer to seek or request an applicant’s criminal history that has been obtained pursuant to procedures otherwise provided for under federal, state, or local law. The above requirements apply to both public and private employers.

California’s Minimum Wage Increases Again (SB 3)

In 2016, California enacted SB 3, authorizing annual minimum wage increases until it reaches $15.00, and identifying a two-tiered schedule for the effective dates of these increases depending on whether the employer has more than 25 employees. On January 1, 2019, the minimum wage for employers with 26 or more employees will increase to $12.00 per hour, meaning the salary threshold for exemption purposes will be $49,970 annually. On January 1, 2019, the minimum wage for employers with 25 or fewer employees will increase to $11.00 per hour, and the salary threshold exemption for those employers will be $45,760 annually.

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As a reminder, a number of municipalities will also be increasing their minimum wage on January 1, 2019 beyond the state-wide level.

DLSR Announces Increase in Computer Professional Salary for Exemption Purposes

Labor Code § 515.5 provides that some software employees are exempt from overtime requirements if certain duties are met, including the performance of statutorily-enumerated duties and an hourly rate of pay not less than the statutorily-specified rate. The Division of Labor Statistics and Research is responsible for annually reviewing this rate to determine if any adjustments are needed for the following year, and usually makes such determination by the end of October.

Effective January 1, 2019, the computer software employee’s minimum hourly rate of pay exemption will increase from $43.58 to $45.41, the minimum monthly salary exemption will increase from $7,565.85 to $7,883.62, and the minimum annual salary exemption will increase from $90,790.07 to $94,603.25.

Inspection of Payroll Records (SB 1252)

Although Labor Code § 226 states that employers must permit an employee to inspect or copy certain payroll-related records, some employers were apparently requiring the employees to make their own copies, notwithstanding the statute’s language authorizing the employer to charge the employee for the actual copying costs incurred by the employer. This law amends section 226 to clarify that the employee has the right to inspect or "receive a copy" of these records, meaning the employer must make the copies if the employee requests. As a reminder, the failure by an employer to permit the employee to inspect or receive a copy of these records within the statutory deadline entitles the employee to receive a $750 penalty from the employer.

Publicly-Available Injury and Illness Reports (AB 2334)

Highlighting the ongoing tension between California and the federal government, this law will potentially impose new reporting obligations on employers regarding workplace illnesses and injuries. For background, in 2016 the United States Department of Labor adopted the Improve Tracking of Workplace Injuries and Illnesses Act proposed by the Obama Administration, but in 2017 this same agency under the Trump Administration proposed a rule to relax these heightened reporting requirements for workplace injuries and illnesses.

In response, this law adds new Labor Code § 6410.2 to require Cal-OSHA to monitor the United States OSHA’s efforts to implement the previously-proposed federal regulations regarding electronic submission of workplace injury and illness data. If Cal-OSHA determines that the federal OSHA has eliminated the previously-proposed regulation to require employers to electronically submit this information, then Cal-OSHA will be required within 120 days to convene an advisory committee to identify the changes necessary to protect the goals of the Improve Tracking of Workplace Injuries and Illnesses Act, as proposed by the Obama Administration.

It also clarifies that an OSHA "occurrence" for record-keeping violations continues until the violation is corrected, the division discovers the violation, or the duty to comply with the requirement is no longer applicable. In other words, whereas Cal-OSHA could previously issue recordkeeping violation citations for six months after an injury, this new definition will extend this limitations period.

Family Leave Benefits for Military-Related Purposes (SB 1123)

This law expands California’s "paid family leave" provisions beginning January 1, 2021 to allow an employee to receive wage replacement benefits for time off due to qualifying exigencies (as defined) related to the service by the employee’s spouse, domestic partner, child, or parent in the United States armed services. Employees seeking such benefits from the Employment Development Department may be required to provide copies of the active duty orders or other military-issued documentation confirming the family member’s service.

Prior legislation that went into effect on January 1, 2018 removed the seven-day waiting period before an eligible employee may receive paid family leave. AB 2587 removes the seven-day waiting period reference in Section 33013.1 of the Unemployment Insurance Code, since the waiting period rule no longer exists.

PUBLIC SECTOR/LABOR RELATIONS DEVELOPMENTS

Public Sector Labor Relations and Union Security After Janus v. AFSCME (SB 866, SB 846)

The U.S. Supreme Court’s holding in Janus v. AFSCME (2018) 585 U.S. ___, 138 S. Ct. 2448 overturned over forty years of case law which authorized the union security practice known as "agency shop," or mandatory union service fees in public sector employment. Janus v. AFSCME held that public agency employers and unions that represent public employees can no longer require, as a condition of employment, that employees pay a service fee (or a comparable religious objector charitable contribution) for the portion of union dues attributable to activities the union claims are "germane to [the union’s] duties as collective bargaining representative." The Court held that doing so would violate the First Amendment.

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SB 866 is the Legislature’s reaction, and amends and creates new state law regulating: (1) how public employers and employee organizations manage organization membership dues and membership-related fees; and (2) how public employers communicate with employees about their rights to join or support, or refrain from joining or supporting employee organizations. It also prohibits public employers from deterring or discouraging public employees and applicants for public employment from becoming or remaining members of employee organizations. Finally, SB 866 expands employee organization access to employee orientations by making such orientations confidential. This far-reaching legislation affects numerous sections of the Education Code and the Government Code, as well as some sections of the Health and Safety Code, the Penal Code, the Unemployment Insurance Code, and the Budget Act of 2017.

In further legislative reaction to Janus and "clarifying existing law," SB 846 amends Government Code § 1159 to immunize the State Controller from any claims related to withholding of wages for union security (agency shop or fair share fees), at any time prior to June 27, 2018 (the date Janus was decided). Other sections of SB 846 provide for affirmative action in hiring persons with disabilities, and embody a policy that the state will provide reasonable accommodations for disabled state employees, amending Government Code §§ 19230-19237.

The Legislative Employee Whistleblower Protection Act (AB 403, SB 419)

Existing law generally protects employees who disclose illegal or improper workplace activities by prohibiting interference with, and retaliation for, making such disclosures; provides procedures for a person to file a complaint alleging violations of legislative ethics; and authorizes each house of the Legislature to adopt rules and to select committees for the conduct of its business. AB 403 adds §§ 9149.30-9149.36 to the Government Code, while SB 419 adds §§ 9149.32, 9149.38, 9149.39, 9149.40 and 9149.41.

The new laws impose criminal and civil liability on a Member of the Legislature or legislative employee, as defined, who interferes with, or retaliates against, a legislative employee’s exercise of the right to make a protected disclosure, that a Member of the Legislature or a legislative employee has engaged in, or will engage in, activity that may constitute a violation of law, including sexual harassment, or a violation of a legislative standard of conduct. "Protected disclosure" means a complaint made at the request of a legislative employee and a complaint made against a non-employee in specified circumstances.

The new laws also impose civil liability on an entity that interferes with, or retaliates against, a legislative employee’s exercise of the right to make a protected disclosure.

Investigation of Complaints of Workplace Misconduct in the Legislature (SB 867)

The Legislative Counsel is required to establish a unit within the Legislative Counsel Bureau to provide advice and investigation services to the Legislature related to workplace misconduct. SB 867 adds Government Code § 10249, to require the new unit to accept and investigate reports and complaints of workplace misconduct, as authorized by the Legislature. The law also requires the Legislative Counsel to employ a director of the unit, one or more investigators, and additional staff as appropriate, and requires, notwithstanding existing law, the Legislative Counsel to be granted career executive assignments, at his or her request, to fill the positions of director and investigator.

Custodial Officer Training (AB 1888, AB 2197)

Training requirements for peace officers employed primarily as custodial officers under Penal Code § 832.3 will remain unchanged, with AB 1888 repealing that code section’s automatic repeal date of January 1, 2019. The law which will remain in effect exempts a deputy sheriff employed to perform custodial duties from having to retake a training course before being reassigned from custodial assignments to positions with responsibility for preventing and detecting crime and the general enforcement of the criminal laws of this state if he or she is continuously employed by the same department, maintains specified skills, and took the training course within the previous 5 years.

A "custodial officer" is a public officer, not a peace officer, employed by a law enforcement agency of a county having a population of 425,000 or less, or by certain specified counties, having the authority and responsibility for maintaining custody of prisoners and performing tasks related to the operation of a local detention facility. Custodial officers undergo specified training, and are authorized to perform specified duties, including, among others, serving warrants, court orders, writs, and subpoenas in the detention facility, and maintaining custody of prisoners and related tasks. AB 2197 amends Penal Code § 831.5, to authorize a custodial officer employed by the Madera County Department of Corrections to perform arrests, conduct searches, and segregate and classify prisoners, as specified, upon resolution by the County of Madera Board of Supervisors.

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Veterans With Service-Related Disabilities Employed by the State (SB 1312)

The California Wounded Warriors Transitional Leave Act grants a state officer or employee who is a veteran hired on or after January 1, 2016, with a service-connected disability rated at 30% or more by the United States Department of Veterans Affairs, an additional credit for sick leave with pay of up to 96 hours for the purpose of undergoing medical treatment for his or her military service-related disability. Current law requires that the sick leave be credited to a qualifying officer or employee on the first day of employment and remain available for use for the following 12 months of employment.

This law extends that benefit by amending Government Code § 19859 to require credit for leave of absence to be credited to a state officer or employee on the effective date of the officer’s or employee’s disability rating decision from the United States Department of Veterans Affairs, or on the first day the officer or employee begins, or returns to, employment after active duty, whichever is later, except under specified circumstances when provisions authorizing alternative leave arrangements would be applicable. Sick leave credited under these provisions is ineligible for conversion to service credit, as specified.

Peace Officers Domestic Violence Training (SB 1331)

Existing law requires the Peace Officers Standardized Training course for peace officers to include instruction on specified procedures and techniques for responding to domestic violence, including, among others, the signs of domestic violence, and techniques for handling incidents of domestic violence that minimize the likelihood of injury to the officer and that promote the safety of the victim. SB 1331 amends Penal Code § 13519 to require the course include procedures and techniques for assessing lethality or signs of lethal violence in domestic violence situations.

School Bullying (AB 2291)

The Safe Place to Learn Act requires the State Department of Education to assess whether local educational agencies have taken certain actions related to educational equity, including adopting a policy that prohibits discrimination, harassment, intimidation, and bullying based on specified characteristics such as disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, or sexual orientation, or association with a person or group with one or more of the specified characteristics. AB 2291 primarily amends Education Code § 32283.5 (and other sections) to require local educational agencies, as defined, to adopt, on or before December 31, 2019, procedures for preventing acts of bullying, including cyberbullying.

Workers Compensation for Peace Officers Responding to Mass Shooting In Nevada (AB 1749)

This law amends Labor Code § 3600.2 to potentially extend workers compensation coverage to peace officers responding to the mass shooting in Las Vegas, Nevada on October 1, 2017. The new law states that an employer, at its discretion or in accordance with specified policies, is not precluded from accepting liability for compensation for an injury sustained by a peace officer by reason of engaging in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of the peace, outside the state of California, but who was not at the time acting under the immediate direction of his or her employer, including any claims for injuries sustained by peace officers during the October 1, 2017, mass shooting in Las Vegas, Nevada, if the employer determines that providing compensation serves its public purposes. The bill, for purposes of worker’s compensation claims filed for injuries sustained during the October 1, 2017, mass shooting in Las Vegas, Nevada, would deem the date of injury as the operative date of these provisions. The bill would provide that acceptance of liability shall not affect the determination of whether or not the peace officer acted within the scope of his or her employment for any other purpose.

Agricultural Labor Relations (AB 2751)

This law amends the Agricultural Labor Relations Act in several respects. Section 1149.3 is added to the Labor Code, to require the Agricultural Labor Relations Board (ALRB) to process to final board order, within one year, all decisions concerning make-whole awards, backpay, and other monetary awards to employees, or any board order finding liability for an award, unless the ALRB makes a specified certification to the parties. Also, it amends §§ 1164.3 and 1164.10 to require immediate implementation of the board order during the pendency of any challenge, appeal, writ of review, or other action seeking to modify or overturn a board order, unless the court makes specified findings. At the conclusion of any review proceedings commenced under these provisions in which the board’s order is affirmed, and the terms set forth in the board’s order are not implemented or effective, the agricultural employer and the labor organization are to immediately implement the board’s order.

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Public Employees’ Retirement Fund and Teachers’ Retirement Fund: Investments: Climate-Related Financial Risk (SB 964)

The California Constitution requires members of the retirement board of a public pension or retirement system to discharge their duties with respect to the system solely in the interest of, and for the exclusive purposes of providing benefits to, participants and their beneficiaries, minimizing employer contributions thereto, and defraying reasonable expenses of administering the system. Existing statutory law establishes various public employee retirement systems and provides for the administration of the State Teachers’ Retirement System by the Teachers’ Retirement Board and for the administration of the Public Employees’ Retirement System, among other public employee retirement systems, by the Board of Administration of the Public Employees’ Retirement System.

SB 964 adds § 7510.5 to the Government Code, to require climate-related financial risk, as defined, to be analyzed to the extent the boards identify the risk as a material risk to the Public Employees’ Retirement Fund or the Teachers’ Retirement Fund. It requires each board to publicly report on the climate-related financial risk of its public market portfolio, including alignment of the Public Employees’ Retirement Fund and the Teachers’ Retirement Fund with a specified climate agreement and California climate policy goals and the exposure of the fund to long-term risks, as specified, by January 1, 2020, and every 3 years thereafter, until January 31, 2035.

School Employees: Dismissal or Suspension; Hearings; Evidence (AB 2128)

Existing laws establish procedures for the dismissal and suspension of school employees, and prohibit a permanent school employee from being dismissed, except for one or more "causes." Those laws currently prohibit, for certain dismissal or suspension proceedings, testimony or evidence relating to matters that occurred more than 4 years before the date of the filing of the notice of the governing board of the school district to an employee of its intention to dismiss or suspend him or her. Existing laws also prohibit, for those dismissal or suspension proceedings, a decision relating to the dismissal or suspension of an employee to be made based on charges or evidence of any nature relating to matters occurring more than 4 years before the filing of the notice. Allegations of a sex offense or an act of child abuse or neglect are currently exempted from those prohibitions.

AB 2128 amends Education Code § 44944, to also exempt from those provisions testimony, evidence, or a dismissal or suspension decision regarding allegations of behavior or communication of a sexual nature with a pupil that is beyond the scope or requirements of the educational program, for purposes of a disciplinary proceeding based on similar conduct, as specified, and testimony, evidence, or a dismissal or suspension decision regarding allegations of specified offenses involving lewd and lascivious acts and certain types of contact or communication with minors, for purposes of any disciplinary proceeding.

School and Community College Employees: Parental Leave (AB 2012)

This law amends §§ 44977.5, 45196.1, 87780.1, and 88196.1 of the Education Code, relating to school and community college employees regarding the formula used to pay both certificated and classified employees who use accrued sick leave toward parental leave. Eligible employees will receive no less than 50% of their regular salary for the remaining portion of the 12-workweek period of parental leave.

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