And a Happy New Year to California Employers...
Last week, we talked here about some new challenges for New York employers in the new year, and how New York was in the running to supersede California as the toughest state for employers. Alas, notwithstanding the efforts of the New York legislature, California still retains its crown as the most challenging state for employers.
So, what are some things that California employers should be doing in the new year? For one, due to the passage of California Bill AB 5 last year (discussed here), employers will need to take a serious look at any worker who is still classified as an independent contractor. In order to be classified as an independent contractor, the worker must: (1) be free from the control and direction of employer; (2) perform work that is outside the usual course of the hiring entity’s business; and (3) be customarily engaged in an independently established trade, occupation or business of the same nature as the work performed for the hiring entity. While some professions have been exempted, and there have also been some legal challenges to the new law, most employers are going to want to think long and hard before treating someone as an independent contractor.
Many employers also include “no re-hire” provisions in severance and settlement agreements to prevent the terminated employee from reapplying for a job immediately after cashing their severance check. Effective January 1, 2020, such provisions are prohibited unless the terminated employee has engaged in sexual harassment or assault, or the employer has a “legitimate non-discriminatory or non-retaliatory reason for terminating or refusing to rehire the person.” While most employers are likely to have a legitimate reason for not wanting to rehire a terminated employee, the new law will make it much more difficult to achieve complete closure with a non-performing employee.
Finally, California has expanded its lactation accommodation requirements (which we discussed in greater detail here) by requiring employers to provide employees with a room — that is not a bathroom — where they can express milk in private. While the room could actually be the room where the employee normally works, the employer will also need to provide access to a sink with running water and a refrigerator suitable for storage. There is a limited exemption from these requirements for small employers. Even if an employer does not currently have any employees who need a lactation room, the new law also requires employers to develop and implement a lactation accommodation policy that includes, among other things, the process by which employees can request lactation accommodation and a statement about the employee’s right to file a complaint with the California Labor Commissioner.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.