In keeping with the new year theme, this week’s podcast includes two new “sleeper laws” that took effect on January 1, 2020. These laws have not been highly publicized or spoken about frequently in the news, yet are still important for employers to know.
In Episode 46 of The Workplace podcast, CalChamber Executive Vice President and General Counsel Erika Frank and employment law experts Matthew Roberts and Bianca Saad highlight laws on domestic partnerships and flexible spending accounts, sexual harassment prevention training deadlines, and new required updates for workplace posters and pamphlets.
SB 30: Domestic Partnership
Starting January 1, 2020, California expanded its definition of “domestic partner,” a protected class under the Fair Employment and Housing Act. Previously, California law stated that registered domestic partners were limited to the same sex or opposite sex partners over the age of 62, Saad tells Frank.
SB 30 expands who can apply to be a registered partner. Now, under SB 30, any individual at least 18 years of age or older may register with another individual as a domestic partner, Saad says.
The law also will influence, for example, someone who would apply for California Family Rights Act (CFRA) leave. Registered domestic partners are covered under these protections as well, Saad adds.
A question that often arises is whether employers can ask for proof of a domestic partnership. While employers are certainly entitled to ask for proof, this comes with a sticky edge.
“If we haven’t been asking for marriage certificates of our married individuals, we are not going to be now asking for the registration certificate, so to speak, of our domestic partners,” Frank clarifies.
Registering for domestic partnership status is a procedure done through the Secretary of State, Saad explains.
Flexible Spending Accounts
It’s the perfect time of the year to talk about flexible spending accounts (FSA) for employers who offer the benefit.
Some plans offer a little bit more leeway to use the funds in FSAs, but if you don’t use it by the deadline, you lose it, Frank emphasizes. Prior to a new law that took effect on January 1, 2020, it was not mandatory for employers to notify employees about their approaching account deadline.
The new law requires employers to provide two forms of notices to employees before their funds are set to expire under the use it or lose it provision, Roberts explains. Notices can come in two different forms: one may be electronic (such as an email); and the other must be nonelectronic (snail mail or in-person communication). There is no specific date by when an employer should provide notice to the employee, just as long as it’s done before the end of the plan year.
“The benefits plan administrator has usually been the party that has been notifying the employee, so this is why this is…a new burden on employers, because they’ve never really had to deal with FSAs,” Roberts tells Frank.
Essentially, he clarifies, the law wants employers to ensure that employees are using the funds they’ve paid for under the plan.
Previously, California had imposed a January 1, 2020 deadline on employers with five or more employees to provide sexual harassment prevention training, meaning that employers would have to make sure their employees and supervisors were trained by the end of 2019, Frank says.
SB 778, which was passed last year, extended the sexual harassment prevention training deadline for all employers to January 1, 2021, Saad explains. A sister bill, SB 530, addresses the part of the law for temporary and seasonal employees. Beginning January 1, 2021, those employees will need to begin receiving training too.
Visit the CalChamber store to sign up for the CalChamber’s California-compliant sexual harassment prevention online training course for supervisors and employees.
Every year, California employers usually will need to make changes to their posters in the workplace and ensure they are distributing the most updated pamphlets, which both include a number of federal and state notices outlining rights for employees, Frank says.
The four required poster changes for this year are:
• The Department of Fair Employment and Housing discrimination and harassment poster;
• Family care and medical leave and pregnancy disability leave poster (formerly CFRA notice);
• Rights and obligations as a pregnant employee poster; and
• Transgender rights in the workplace poster.
The changes are minimal; however, they are required, Roberts explains.
The California Division of Occupational Safety and Health (Cal/OSHA) also issued a notice in August 2019, so as a reminder, employers need to update this poster as well.
Additionally, there are four pamphlet updates:
• State Disability Insurance pamphlet;
• Paid Family Leave pamphlet;
• Unemployment Insurance pamphlet; and
• Sexual Harassment pamphlet.
Visit the CalChamber store at calchamber.com/store to find a 2020 all-in-one poster, which includes mandatory updates effective January 1, 2020 and a California required pamphlets kit.
Listen to The Workplace
In Episode 45 of The Workplace podcast, Frank, Roberts and Saad recap the topics on which they received the most questions during the January Employment Law Updates seminars: the CROWN Act, expansion of lactation accommodation law, wildfire regulations, and meal and rest breaks.
To listen or subscribe, visit www.calchamber.com/theworkplace.