Insurance agents and brokers are employees and employers too. That being said, here’s what they should know about new workplace requirements and restrictions in effect in 2019:
- #MeToo Legislated – SB 820 – An employer can no longer require confidentiality when settling claims concerning sexual assault, sexual harassment, sex-based discrimination or sex-based retaliation. As a result, employees may now freely discuss #MeToo-related settlements without fear of reprisal.
- Women on Corporate Boards – SB 826 – By December 31, 2019 all publicly held, California-based corporations must have at least one female member on their boards of directors (at least two female members will be required on most boards by 2021).
- Vicarious Liability and More – SB 1300 – An employer may now be liable if (1) a non-employee harasses an employee, (2) the employer knew or should have known of the conduct, and (3) the employer fails to take immediate and appropriate corrective action. SB 1300 also makes it unlawful for an employer, “in exchange for a raise or bonus, or as a condition of employment or continued employment,” to require an employee to sign a release of a claim or right under FEHA. Similarly, the new law prohibits an employer from requiring an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace.
- New Sexual Harassment Training – SB 1343 – By January 1, 2020, California businesses that employ between five and 49 employees must comply with the state’s sexual harassment training requirements (previously applicable only to companies employing at least 50 employees). All employers in the state with five or more employees must provide two hours of training for supervisory employees and one hour of training for those working in other roles within the first six months of employment and every two years thereafter.
- Breastfeeding at Work – AB 1976 – Employers are required to provide mothers with a “private location” to breastfeed other than an office restroom. A company hindered by space limitations may establish a temporary location as long as the location is private and free from intrusion while in use.
- No More Nondisclosure – AB 3080 – Employees previously bound by nondisclosure agreements may now freely discuss workplace harassment without fear of reprisal from their employers.
- Meal Breaks for Health Care Workers – In a departure from a prior labor code mandate and pursuant to a December 2018 ruling by the California Supreme Court, health care workers are no longer required to take a second meal break during shifts lasting longer than 12 hours. The net effect of the high court’s decision is that workers can elect to leave work a half hour early.
In addition to the foregoing state laws, employers need to know about two new rules promulgated by the National Labor Relations Board (NLRB):
- Joint Employer Liability – As of this writing, the NLRB has proposed a rule overturning the Obama-era standard for joint employer liability. If enacted, the new rule will limit joint employer liability to an employer that exercises direct control over an employee. This revamped rule would certainly benefit staffing agencies, franchisors and other upstream organizations, though California employers should continue to proceed with caution. The NLRB is a federal organization, meaning that the rule does not affect state law, at least not yet.
- Company E-Mail for Union Activity – The NLRB also recently confirmed the right of employees to use work email to conduct union activities. This rule (which is currently being tested in a case before the NLRB) comes with a caveat: an employer need not provide an employee with an email address to conduct union activities, if email is not otherwise a part of the employee’s job.
Next Steps
- All employers should update settlement and nondisclosure documents that release claims for sexual harassment, sex discrimination and related actions. In the aftermath of SB 820, companies should also ready themselves for a rise in sex-based discrimination claims that seek to bypass the confidentiality provisions of the law.
- Employers previously exempt from providing sexual harassment training (those with fewer than 50 employees) should review training policies to ensure full compliance.
- Employee handbooks should be updated in light of new California laws, with particular attention paid to policies on workplace harassment. This overview is not offered as legal advice, which is dependent on circumstance. If questions arise regarding a specific situation, you should consult an attorney.
This overview is not offered as legal advice, which is dependent on circumstance. If questions arise regarding a specific situation, you should consult an attorney.This overview is not offered as legal advice, which is dependent on circumstance. If questions arise regarding a specific situation, you should consult an attorney.
About the Author: Mark Robinson, M&R’s co-founder and leader of the firm’s Regulatory Practice Group, is an insurance industry specialist who primarily represents retail brokers and agents in all aspects of their businesses. A recognized authority on regulatory issues that impact his client base, Mark’s multistate practice runs the gamut from complex mergers and acquisitions of brokerages to compliance matters, and most everything in between. You can learn more about Mark or contact him here.
