With a new year comes new laws. This year is no exception. In this post, I will address several new employment laws that went into effect this year.
Cut-off to File a Claim with the Department of Fair Employment and Housing Extended.
Before an individual is allowed to file a lawsuit based on a Fair Employment Housing Act (“FEHA”) violation, such as a claim for sex discrimination, harassment or wrongful termination based on gender, the individual must first file a claim with the Department of Fair Employment and Housing (“DFEH”). At the time of filing a claim with the DFEH, the individual may request the DFEH to investigate his or her claim or request a Right to Sue Letter. Obtaining a Right to Sue Letter from the DFEH is required before a lawsuit may be filed against the employer.
Prior to January 1, 2020, an employee was required to file a claim with the DFEH within 1 year from the last date of the wrongful act. For example, if an employee was wrongfully terminated on February 1, 2019, the employee would have to file a claim with the DFEH by no later than February 1, 2020 in order to preserve his or her right to file a civil lawsuit. Failure to file a claim with the DFEH within 1 year of the wrongful act, precludes the employee with filing a lawsuit. The filing requirement is met when the employee actually files the claim with the DFEH, either online or in-person and it is accepted by the DFEH. An employee does not have to obtain a Right to Sue Letter within one year.
Once the employee has the Right to Sue Letter, the employee has one year from the date that the letter is issued to file a civil lawsuit.
Under AB 5 – The SHARE Act that was passed last year, starting in January 1, 2020, an employee has 3 years from the last date of the wrongful act to file a claim with the Department of Fair Employment and Housing. This law only applies to claims that have not already lapsed. So if an employee was required to file a claim with the DFEH by December 31, 2019, this new law does not revive this case – the employee lost his or her opportunity to file a lawsuit.
No Rehire Provisions in Settlement Agreements are Null and Void.
When an employment lawsuit is settled, it is very common that the employer will put in the settlement agreement a provision that states that the employee will not apply for any job with the employer and the employer will not rehire the employee. As of January 1, 2020, this type of blanket provision, with a small exception, is no longer enforceable.
It is important to note that this law only applies to no rehire provisions contained in settlement agreements, where the settlement was reached after the employee filed a lawsuit or initiated an administrative action, or the settlement was reached in an alternative dispute resolution forum or the employee resolved the dispute through the employer’s internal complaint system or process. However, severance or separation agreements unrelated to employment disputes may contain a no rehire clause and be enforceable.
Employers Cannot Discriminate Against Someone Due to His or Her Hairstyle of Texture.
The definition of race was expanded under the FEHA rules to include the prohibition of discrimination against an individual based on traits historically associated with race, including hair texture and certain hairstyles. Accordingly, it is improper for an employer’s dress code or grooming policy to prohibit natural hairstyles, such as afros, braids, twists and locks. Moreover, an individual’s natural hair cannot play into decisions related to hiring, promotions or other work related practices.
Required Sexual Harassment Training for Supervisors and Non-Supervisory Employees.
Starting on January 1, 2021, all employers with 5 or more employees are required to provide at least 2 hours of classroom or other effective interactive sexual harassment training to all supervisors every two years. In addition, these same employers are also required to give at least 1 hour of sexual harassment training to all nonsupervisory employees every year. Government Code Section 12950.1 sets forth the type of training that is required as well as the qualifications of the trainer.
This new law still requires employers to give new hires sexual harassment training within 6 months of his or her hire date.
If you have any questions regarding these new laws or any general employment law inquiry, please contact the attorneys at The Rinka Law Firm, PC at 310-556-9653.