Every year comes with new laws and regulations that affect employers.
It pays to stay on top of all the new requirements, so we are here to help you understand those that are most likely to affect your business. The following are the top 10 laws, regulations and trends that you need to know about going into 2019.
1. Sexual harassment training
Since 2005, California law has required employers having 50 or more employees to provide at least two hours of sexual harassment training to supervisors every two years. SB 1343 changes this by requiring employers with five or more employees to provide non-supervisory employees with at least one hour by Jan. 1, 2020.
In addition, this training must be held every two years. Employers with five or more workers must provide (or continue to provide) two hours of the biennial supervisory training, as well.
2. Data privacy
Companies that collect data on their customers online should start gearing up in 2019 for the Jan. 1, 2020 implementation of the California Consumer Privacy Act of 2018, which is the state’s version of the European Union’s General Data Protection Regulation.
The law gives consumers the following rights in relation to their personal information:
- The right to “opt out” of allowing a business to sell their personal information to third parties;
- The right to have a business delete their personal information; and
- Not be discriminated against by opting out.
The law applies to businesses that:
- Have annual gross revenues in excess of $25 million,
- Annually buy, receive for their own commercial purposes, or sell or share for commercial purposes, the personal information of 50,000 or more consumers, households or devices, and/or
- Derive 50% or more of their annual revenues from selling consumers’ personal information.
3. Independent contractors
While this legal development happened in 2018, now is a good time to go over it. In May, the California Supreme Court handed down a decision that rewrites the state’s independent contractor law.
In its decision in Dynamex Operations West, Inc. vs. Superior Court, the court rejected a test that’s been used for more than a decade in favor of a more rigid three-factor approach, often called the “ABC” test.
Employers now must be able to answer ‘yes’ to all three parts of the ABC test if they want to classify workers as independent contractors:
- The worker is free from the control and direction of the hirer in relation to the performance of the work, both under the contract and in fact;
- The worker performs work that is outside the usual course of the hirer’s business; and
- The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hirer.
The second prong of the ABC test is the sentence that really changes the game. Now, if you hire a worker to do anything that is central to your business’s offerings, you must classify them as an employee.
4. Electronic submission of Form 300A
In November 2018, Cal/OSHA issued an emergency regulation that requires California employers with more than 250 workers to submit Form 300A data covering calendar year 2017 by Dec. 31, 2018. The new regulation was designed to put California’s regulations in line with those of Federal OSHA.
Starting in 2019, affected employers will be required to submit their Form 300A data by March 2. For instance, the 2018 summary would have to be submitted before March 2, 2019. The law applies to:
- All employers with 250 or more employees, and
- Employers with 20 to 249 employees in specified high-risk industries, including Agriculture, Construction, Manufacturing and others.*
* See Appendix H of CCR T8 14300.411 for a complete list of high-risk industries.
Exemptions: Not all employers are required to electronically submit Form 300A data – Employers classified in “low-risk” industries listed in Appendix A CCR T8 14300.22 are not required to post or submit 300A data electronically.
5. Harassment non-disclosure
This law, which takes effect Jan. 1, 2019, bars California employers from entering into settlement agreements that prevent the disclosure of information regarding:
- Acts of sexual assault;
- Acts of sexual harassment;
- Acts of workplace sexual harassment;
- Acts of workplace sex discrimination;
- The failure to prevent acts of workplace sexual harassment or sex discrimination; and
- Retaliation against a person for reporting sexual harassment or sex discrimination
The big issue employers will need to watch out for, according to experts, is that the new law could actually keep the employer and employee from reaching resolutions for disputes.
6. New tiered minimum wage
On Jan. 1, 2019, the state minimum wage will increase, depending on employer size, to:
- $11 per hour for employers with 25 or fewer workers.
- $12 an hour for employers with 26 or more workers.
Local municipalities may have their own minimum wage rules, so always check to make sure you don’t live in a city or county that has a higher minimum wage.
7. Accommodating lactating mothers
A new law brings California statute into conformity with federal law that requires employers to provide a location other than a bathroom for a lactating mother to express milk.
8. New bar for harassment liability
A California Appeals Court ruling in 2018 set a new standard for what constitutes harassment in the workplace in a case that concerned a correctional officer at a prison who was mocked about his speech impediment on numerous occasions by co-workers.
The significance of the case for employers is that even teasing and sporadic verbal harassment can be enough to create a hostile work environment and, hence, liability.
To reduce the chances of liability, employers should have an anti-harassment policy in writing that their staff should know and understand. Include training and make sure there are steps for reporting harassment, a mechanism for investigating it, and that the ramifications for harassers are clear.
9. Overtime laws
The U.S. Department of Labor plans to propose new regulations governing overtime exemptions from the Fair Labor Standards Act in March 2019.
The DOL is aiming to update FLSA regulations that set a salary threshold below which employees must be paid overtime. Today, it remains at $23,660, after the Obama administration unsuccessfully attempted to raise it to $47,476. President Trump’s DOL is expected to propose a threshold somewhere between $32,000 and $35,000.
Also, as of January 1st agricultural employees will now receive time and a half pay after 9.5 hours per day or 55 hours per week, down from the old threshold of 10 hours per day or 60 hours per week. For now this change only applies to agricultural employers with 25 or more employees, with the change being phased-in for smaller employers until 2022.
10. Indoor heat illness regulations
The plan was for proposed indoor heat illness regulations to be issued before Jan. 1, 2019 for implementation before summer, but the Division of Occupational Safety and Health has said it can’t meet that deadline.
Look for proposed regulations in the first quarter with possible implementation by the summer.
So far, here’s what’s in the draft rules:
The standard would apply to all indoor work areas where the temperature equals or exceeds 82 degrees. Employers that would be subject to all of the standard’s provisions include those who have workplaces where:
- The temperature is at least 92 degrees,
- The heat index is at least 90 degrees,
- Employees wear clothing that restricts heat removal, or
- Employees work in high-radiant-heat work areas.
It would require employers subject to the rules to provide cool-down areas at all times, and they would be required to encourage and allow employees to take preventative cool-down rests when they feel the need to protect themselves from overheating.
They must also implement control measures that could include engineering controls, isolating employees from heat, using air conditioning, cooling fans, cooling-mist fans, and natural ventilation when the outdoor temperature is lower than inside.