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California legislation tackles workplace protections for privacy, harassment, discrimination

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The conclusion of Sacramento’s most recent legislative session saw several groundbreaking bills passed, some of which will have significant impacts on how employers deal with personal information and claims of harassment and discrimination.

The Business Journal asked labor and employment attorney and expert Benjamin Ebbink, of counsel at Fisher & Phillips LLP in Sacramento, to weigh in on four laws that employers need to be aware now in their current and future forms.

Assembly Bill 51: Prohibiting mandatory arbitration agreements

The bill is much broader than sexual harassment.

Ebbink said the issue of whether companies can force employees to settle disputes in private arbitration as opposed to in open court has been a battle in Sacramento for two decades. He said the #MeToo movement spurred the issue on as it relates to companies' keeping sexual harassment claims quiet, but its implications for employers go beyond that.

“The bill is much broader than sexual harassment,” Ebbink said, noting it included all potential labor disputes under the California Fair Employment and Housing Act.

Employers are faced with a decision as to whether to comply with the law however since Ebbink said it will almost certainly face litigation from businesses that could see it tied up in courts.

“Employers could argue that the law is preempted by the federal arbitration act,” he said, noting employers risk criminal charges if they do not comply with the law by betting it would be struck down in the courts.

AB 9: Extending the time to file a workplace bias claim by 2 years

This bill had its genesis out of the MeToo movement and talk of victims of sexual harassment needing longer than a one year period of time to file administrative claims.

Another issue that has focused on sexual harassment in the workplace but that has broader implications, AB 9 extends the time allowed for employees to file any complaint over workplace discrimination.

Ebbink said employees now have three years instead of one to file the administrative claim required before a lawsuit is brought under the state Fair Employment and Housing Act.

“This bill had its genesis out of the MeToo movement and talk of victims of sexual harassment needing longer than a one year period of time to file administrative claims,” he added, noting those kinds of traumatic experiences can take a victim a long time to come to terms with.

The law means that all types of employment discrimination under the FEHA would now have an extended timeframe Ebbink said. “Any time you extend the statute of limitations it’s going to impact how employers handle cases, how they document evidence and keep records of issues that arise because of the longer period.”

Ebbink said as a practical matter discrimination claims are more subjective than, for example, wage and hour claims and that companies will have to carefully document claims given that as time passes employees leave and memories fade, unlike other evidence like a payroll record.

AB 25 and AB 1355: Business amendments to the California Consumer Privacy Act

Much ink has been spilled over the forthcoming California Consumer Privacy Act and the robust rights it affords to Californians to control what information is collected about them by some private companies. The business impact of that law, which will be enforced by the state attorney general starting in July, is less settled.

The law allows people to demand certain companies delete and divulge information about them, but the Legislature has decided those provisions and others will not cover employee data for one year under AB 25, Ebbink said.

Otherwise,“that could result in crazy situations,” he said. The implications could include an employee accused of sexual harassment demanding their personnel file and other evidence be deleted, for example, he said.

Employers will still have to take reasonable security measures to protect employee data and are required to disclose what categories of personal information they collect about employees and job applicants, Ebbink said.

A discussion between labor and the business community will take place next year to possibly extend the exemption, he added.

It’s not as easy as saying any business sharing of data is out.

For business purposes, AB 1355 creates a carve out that expires in January 2021, stating that certain business to business communications are not covered by the privacy law. The law says that business communications that have to do with due diligence or selling or buying a product or service from a business are exempt. There is some sharing of information between businesses that could still be covered by the law however, Ebbink said.

“It’s not as easy as saying any business sharing of data is out.”

Staff Writer Chase DiFeliciantonio covers technology, banking, law, accounting, and the cannabis industry. Reach him at chase.d@busjrnl.com or 707-521-4257.

Correction, Nov. 25, 2019: Employees now have three years instead of one to file an administrative claim on workplace discrimination. The original version said the limit applied to employers, though the previous sentence referred to employees.

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