Were you able to keep track of the new legislative changes that affect California employers and employment lawyers? Don’t worry, we did and here are some of the key statutory changes you need to know about.
- New restrictions on attorney fees in FEHA actions. A new law provides that, notwithstanding CCP §998, a prevailing defendant in a FEHA action cannot be awarded fees and costs unless the court finds that the action was “frivolous, unreasonable, or groundless when brought, or the plaintiff continued to litigate after it clearly became so.” See Govt C §12965(b) (amended by Stats 2018, ch 955, effective January 1, 2019). For more on attorney fees in FEHA actions, see CEB’s Employment Damages and Remedies, chap 8.
- Attorneys must have clients sign a new disclosure before mediations. Evidence Code §1119 provides that anything said, any admission made, or any writing prepared for mediation is inadmissible and protected from discovery in a subsequent proceeding. Clients are sometimes surprised to learn that this also means malpractice lawsuits against their own attorneys. To address this problem, attorneys must now get their clients to sign a disclosure before mediation acknowledging that the clients understand the confidentiality restrictions. The statute provides a model disclosure for this purpose. See Evid C §1129 (added by 2018 Stats, ch 350, effective January 1, 2019). On mediation of workplace disputes, see CEB’s Advising California Employers and Employees, chap 20.
- New accommodations for nursing mothers. When Lab C §1031 was originally enacted—requiring employers to provide a place for nursing mothers to express their milk at work—a popular response must have been, “Hey, use the bathroom!” The Legislature has rejected that response with a new law requiring employers to make reasonable efforts to provide a room or other location—other than a bathroom—in close proximity to the employee’s work area for this purpose. If this isn’t feasible, a temporary location is okay if it’s private and free from intrusion and used only for lactation purposes. See Lab C §1031 (amended by Stats 2018, ch 940, effective January 1, 2019). For more on this topic, see CEB’s California Wage and Hour Law and Litigation §4.35A.
- More sexual harassment prevention training. For the past several years, employers with 50 or more employees have been required to train supervisors every two years about preventing and dealing with sexual harassment in the workplace. That requirement now extends to every employer in California subject to FEHA (i.e., all employers with five or more employees). It also extends to all employees, not just supervisors. Supervisors must get two hours of training and all other employees one hour of training. Employers have until January 1, 2020 to comply. See Govt C §12950.1(a) (amended by Stats 2018, ch 956). For more about sexual harassment prevention training, see CEB’s Advising California Employers and Employees §9.61.
Get more of these key legislative updates in CEB’s free 2018 NewsFlash! Key Statutory Developments for Employment Lawyers. To keep up with all developments in employment law, subscribe to CEB’s OnLAW® Employment Law Library—a virtual encyclopedia of employment law, full of commentary, practice advice, and sample documents.
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