2020 Vision: Setting our Sights on the Year Ahead

This may be hard to believe, but in three weeks, we will be living in the year 2020. I find this fact particularly surprising, as I often refer to events of the mid-90’s as incidents that occurred “a few years ago.”

Whether we acknowledge it or not, though, time marches on. Annually in California, employers in the public and private sector must ready themselves for a new wave of laws that will take effect just after the ball drops to ring in the new year. Is your agency ready?

This article recaps a handful of significant laws that will take effect in 2020. Unless otherwise noted, these will take effect on January 1, 2020. Yes, that’s still just three weeks away.

Laws to Watch for in 2020 (and Beyond)

  • A + B + C = Independent Contractor

Looking Ahead in 2020

AB 5 codifies the elements to establish that someone performing work is an independent contractor, rather than an employee. While the law states it is confirming existing law, rather than creating new law, employers need to ensure their practices comply with AB 5’s rules. The legislation amends the California Labor Code and Unemployment Insurance Code to confirm the impacts of 2018’s California Supreme Court case Dynamex Operations West, Inc. v. Superior Court. For an in-depth analysis of AB 5, visit here. Here are the key points for California employers:

  • AB 5 confirms that the following standard test applies to establish that an individual is an independent contractor and not an employee:
    • (A) The hiring entity does not control how the individual performs the work; AND
    • (B) The individual’s work is outside the usual course of the hiring entity’s business; AND
    • (C) The individual customarily works in an independently established trade, occupation, or business performing the same work performed for the hiring entity.
  • Like all laws, AB 5 includes notable exceptions. First, the applicability for public agencies is relatively limited. Some, but not all, provisions of the Labor Code apply to public agencies (such as paid sick leave and the ability to use part of annual accrued sick leave to care for certain family). Second, AB 5 exempts several categories of professions, referral services, and vendors from the ABC test –if they meet a series of criteria. Finally, if the ABC test does not apply to a particular situation, the more flexible, multi-factor test established by the California Supreme Court in 1989’s Borello case will determine whether an individual is an independent contractor or an employee.

How Can We Prepare?

Consider having legal counsel review policies, procedures, and contracts to confirm that: (1) The agency is applying the appropriate test for independent contractors; and (2) The agency is applying that test correctly. Contact legal counsel if any questions arise – it’s important to address potential classification issues as quickly and effectively as possible.

  • Expanded Requirements for Lactation Accommodations

Looking Ahead in 2020

SB 142 amends the Labor Code to expand protections for employees to express breast milk at work. Employers have already been required to provide a private location – other than a bathroom – for an employee to express breast milk during their break time. Click here for a detailed review of SB 142. SB 142 expands most employers’ obligations as follows:

  • The employer must provide a private lactation room in “close proximity” to the employee’s workspace, which is shielded from view and free from intrusion from others while the employee expresses milk.
  • The lactation room must have a place for the employee to sit, and have access to electricity or alternative devices (such as extension cords or charging stations)
  • The employer must provide a sink with running water and a refrigerator or other cooling device for storing milk in close proximity to the employee’s workspace.
  • The employer must develop, implement, and make available a policy regarding employees’ lactation accommodations.

How Can We Prepare?

Review your agency’s policies and practices regarding lactation accommodations for employees. Does the current lactation accommodation meet SB 142’s requirements? If not, it is time to develop a strategy to implement the required changes. If the agency does not already have a policy, now is the time to act to develop and implement one. If a policy exists, does it meet SB 142’s requirements? Consider consulting legal counsel for assistance to assess your agency’s compliance and develop a strategy to implement any required changes. As with any potential changes to workplace conditions, the agency should be mindful of potential labor relations implications.

  • Expanded Protections Against Discrimination Based on Traits Historically Associated with Race

Looking Ahead in 2020

SB 188 amends the Fair Employment and Housing Act and Education Code to expand protections against discrimination based on race to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” Click here for more details about SB 188. “Protective hairstyles” include, but are not limited to, braids, locks, and twists. SB 188 is designed to address the concern that workplace dress codes and grooming policies that prohibit natural hair (including afros, braids, twists, and locks) “are more likely to deter Black applicants and burden or punish Black employees than any other group.” Accordingly, SB 188 prohibits discrimination based on traits that are historically associated with race.

How Can We Prepare?

Review your practices and policies related to hiring, harassment and discrimination prevention, dress codes, and grooming standards. Does your policy (or practice) prohibit or limit individuals from choosing afros, braids, locks, or twists? If so, it’s time to update the policy and change the practice. Do your supervisors understand the new law, and the fact that they should not write someone up for a dress code violation based on hair texture of protective hairstyles? If not, it’s the perfect time to train them on the new laws, and on the compliance procedures your agency is putting into place for the new year.

… Which brings us to another important reminder for 2020:

  • Harassment Prevention Training for Non-Supervisors

Looking Ahead in 2020

SB 778 clarifies that employers are required to provide at least 1 hour of training on harassment, discrimination, and retaliation for non-supervisors by the end of 2020. Employers have long been required to provide 2 hours of harassment prevention training for supervisory employees – within six months of the person taking on the lead or supervisory role, and every two years thereafter. In 2019, legislation required employers to extend training to non-supervisory employees, every two years. SB 778 (which took effect in August 2019 as emergency legislation) clarified that employers have the 2020 calendar year to meet the training requirement. If your agency was ahead of the curve and trained non-supervisors in 2019, they will be due for updates in 2021.

How Can we Prepare?

Employers can meet the training requirement in many ways: Trainings conducted by outside experts; trainings conducted by internal agency experts; or online tools. The Department of Fair Employment and Housing will have online resources available for employers. Additionally, LCW offers flexible options to meet employers’ needs and interests. Visit https://www.lcwlegal.com/harassment-prevention-training-services to find the right training option for your agency.

  • Where Can I Learn More?

Kick off the New Year with a great learning and professional development opportunity! Consider sending your agency’s human resources professionals, managers, and attorneys to LCW’s 2020 Public Sector Employment Law Annual Conference, January 22-24, 2020, in San Francisco.

For more information about our training services, publications, consortiums, and other services we offer, please visit lcwlegal.com.

We wish you a happy and healthy holiday season, and look forward to an exciting future in 2020 and beyond!