News & Events

Employee Handbook Alert – New Law Requires Employers to Develop & Implement a Lactation Accommodation Policy

by Sara Boyns

November 20, 2019

Question: Are there any new employment laws that will require me to revise my Employee Handbook in 2020?

Answer: Yes.

One of these new laws is Senate Bill (SB) 142, which expands lactation accommodation requirements for employees who wish to express breast milk during the work day.   This new law applies to all employers. There are two major implications for California employers. First, all employers are required to develop and implement a lactation accommodation policy.  Second, employees are permitted to take a “reasonable amount” of break time to express milk.  Employers who have existing lactation accommodation policies in their employee handbooks will need to revise them, and employers who do not have a lactation accommodation policy will need to develop and implement one.

SB 142 requires the employer to provide a lactation room close to the employee’s work area, shielded from view and free from intrusion, safe, clean, and free of toxic or hazardous materials.  The lactation room cannot be a bathroom. The lactation room must contain seating, a surface to place a breast pump and other personal items, and access to electricity or alternative power devices.  The employer must provide access to a sink with running water and a refrigerator or other cooling device suitable for the employee to store breast milk close to the employee’s workspace.

Where a multipurpose room is used for lactation, among other uses, the use of the room for lactation shall take precedence over the other uses, but only for the time it is in use for lactation purposes. Employers may designate a lactation location that is temporary due to operational, financial, or space limitations.  Employers in a multitenant building or multiemployer worksite may comply with the law by providing a space shared among multiple employers within the building or worksite if the employer cannot provide a lactation location within the employer’s own workspace.

The employer’s lactation accommodation policy must contain the following:

• A statement about an employee’s right to request lactation accommodation.
• The process by which the employee makes the request.
• An employer’s obligation to respond to the request.
• A statement about an employee’s right to file a complaint with the Labor Commissioner for any violation of the lactation accommodation law.

There are special provisions for agricultural employers.  Additionally, employers with fewer than 50 employees may apply for an exemption from one or more of the requirements if it can demonstrate that a requirement would impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. However, even if an exemption is granted the employer must still make reasonable efforts to provide the employee with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area, for the employee to express milk in private.

The penalties for non-compliance are significant. Denial of reasonable break time or failure to provide adequate space to express milk will now be deemed a failure to provide a rest period in accordance with state law. The Labor Commissioner may assess civil penalties.

The text of this new law is available on the Legislature’s website at https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB142.  Be sure to update your employee handbook with this important new policy and comply with the lactation accommodation requirements.

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AB-1482: The So-Called “Tenant Protection Act of 2019”

by Tyler Moran

November 19, 2019

Article by Tyler Moran

Governor Newsom recently signed a bill which has the potential to change the entire landscape of landlord-tenant law.  In an attempt to make housing in the state more affordable, AB-1482 instead created an incentive for all California landlords to raise rental rates an average of 7% per year, every year, regardless of changes in market value.

The bill consists of two parts: the “rent cap” requirement, and the “just cause” requirement, and mandates that notice be added to all leases informing tenants of these requirements.

The Rent Cap Requirement

Rental rates on residential real property cannot be raised annually more than 5%, plus inflation, up to a maximum of 10%.  The cap only applies to existing tenants over a 12-month period, and is not applicable if the tenancy is terminated and a new tenant moves in.  This portion of the bill is retroactive, and applies to all rental increases since March 15, 2019.  Though meant to keep rental rates affordable, it is likely that landlords will now raise their rates to the statutory maximum every year out of fear of falling behind.  If rental rates are allowed to stay stagnant, and market values suddenly increase sharply, property owners will no longer have the ability to make up the difference by raising rents above the cap.

There are several exemptions to the rent cap listed in the statute.  Two of the most important exemptions are for “housing that has been issued a certificate of occupancy within the previous 15 years” and “residential real property that is alienable separate from the title to any other dwelling unit.”  The first exemption provides that newly constructed properties are exempt for 15 years from the date they receive their certificate of occupancy.  This is a rolling date.  The legislature hopes this will avoid hindering new development.  The second exemption allows for single-family residences and condominiums which do not share title with other dwellings to be exempt so long as the owner is not a real estate investment trust (REIT), a corporation, or an LLC in which a member is a corporation.

The Just Cause Requirement

After a tenant has lawfully occupied a residence for 12 months, a landlord may not terminate the tenancy without just cause.  This is to prevent landlords from evicting tenants simply to avoid the rent cap requirement.  According to the bill, there are two types of just cause: at-fault, and no-fault.

At-fault just cause occurs when the tenant’s actions are the justification for termination.  The bill specifically enumerates what constitutes just cause, and includes: non-payment of rent, breach of a material term in the lease, committing nuisance, and other disruptive or illegal behavior.

No-fault just cause occurs when the landlord’s actions lead to the termination.  Again, the bill specifies what constitutes no-fault just cause.  These include intent to occupy the property by the owner or the owner’s family, withdrawal of the residential real property from the rental market, and intent to demolish or substantially remodel the property.  To terminate a tenancy for no-fault just cause, the landlord must compensate the tenant for the inconvenience of moving.  This may be accomplished by either providing direct payment for relocation assistance equal to one month’s rent, or waiving in writing the final month of rent.

This is likely to be the most litigated section of the new bill.  There is no specified time for how long an owner needs to occupy a unit, or for how long a unit needs to be off the rental market in order to satisfy this requirement.  This leaves a big loophole for landlords to evict tenants by moving in temporarily or by removing the unit from the market for a short period of time in order to increase rent on the next tenant.  As long as landlords are willing to forego rent for the last month of a tenant’s term, this loophole may arguably allow them to avoid the rent cap altogether.

There are several types of properties exempt from the just cause requirement, including single-family homes and condominiums (subject to the ownership requirements previously mentioned) and certain owner-occupied rental units.

Notice Requirement

Another important change to current law is the notice required for termination of a tenancy.  A “3-day notice to cure or quit” is no longer acceptable.  If a landlord wishes to terminate a tenancy due to a curable violation of the lease, the landlord must deliver a 3-day notice to cure.  If the violation is not cured within that time period, then the landlord can deliver a 3-day notice to quit without an opportunity to cure.

For more information you can read the text of the bill here: https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1482

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Save Your E-Verify Records

by Ashley Cameron

November 19, 2019

Article by Ashley Cameron

Before the end of the year, employers are encouraged to download and save their E-Verify records from on or before December 31, 2009.

The E-Verify System

The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), Verification Division administers an electronic employment verification program called E-Verify.

E-Verify is a system that allows employers to electronically confirm that an employee is authorized to work in the United States by comparing information from an employee’s Form I-9, Employment Eligibility Verification, to U.S. Department of Homeland Security (DHS) and Social Security Administration (SSA) records.

Though the E-Verify database stores these records for a period of time, per the National Archives and Records Administration (NARA), USCIS is set to purge E-Verify records from on or before December 31, 2009. E-Verify records contain information such as:

• Company name and location;
• Initiated date and verification case number;
• Employee name and date of initial resolution;
• Date of additional resolution and final status; and
• Case closure date and case closure description.

Since 2014, NARA enacted a yearly disposal schedule of the records that are ten years old in an effort to avoid risks associated with the electronic preservation of personal and identifiable information.

Risks to Employers

The Immigration Reform and Control Act of 1986 (IRCA) requires employers to verify the employment eligibility of their employees with Form I-9. Reviewing Employers are responsible for ensuring the employee completes the form, collecting appropriate documentation (e.g., driver’s license, birth certificate, passport) from the employee and affirming the nature of the documentation on the Form I-9 to establish and identify employment eligibility.

To confirm the employment eligibility of new hires, employers who use E-Verify create a case in E-Verify no later than the third business day after the employee starts work for pay. Once employers initiate a query on E-Verify, the employers soon receive a notice as to whether the particular employee is authorized to work in the United States.

However, the destruction of E-Verify records means the destruction of any notice the employer received that an employee was authorized to work in the United States, which could pose problems for employers who become subject to I-9 audits, which are typically done randomly or as a result of a complaint, or other investigations. Should an employer be subject to an I-9 audit, the employer could have to establish it did in fact receive a notice verifying work eligibility for an employee that is now identified as unauthorized to work in the United States. With saved records of any and all information received from E-Verify, an employer would be able to establish it received a work eligibility notice and rely on these records as a defense, which could aid in avoiding liability.

USCIS created a Historic Records Report that employers can download and save for their archives. The Link for this report can be found at https://www.e-verify.gov/sites/default/files/everify/infosheets/DownloadNARAReportsinE-Verify.pdf. Keeping accurate and complete records ensures the employer covers all its bases and is prepared for any audit or investigation.

Employers are also required to record the E-Verify case verification number on the corresponding Form I-9, or attach a copy of the case details page to the Form I-9. Employers should retain the Historic Records Report with the Forms I-9.

USCIS provides instructions on how to properly save E-verify records. For more information, visit USCIS at: https://uscis.gov/sites/default/files/USCIS/Verification/E-Verify/E Verify_Native_Documents/Fact-Sheet-E-Verify-RecordRetention.pdf

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California Supreme Court Resolves Fundamental CEQA Question

by Alex Lorca

November 19, 2019

Article by Alex Lorca

This important court decision provides clarity to public agencies, as well as developers, as to when certain activities are considered a “project” subject to review under the California Environmental Quality Act.

In 2014, the City of San Diego adopted an ordinance that amended its zoning code to, for the first time, allow medical marijuana dispensaries in certain areas of the City, and to regulate their operation. The City did not undertake environmental review of the amendment under the California Environmental Quality Act (CEQA), finding it exempt from review. A group known as the Union of Medical Marijuana Patients, Inc. (UMMP) challenged the zoning code amendment in court, arguing the City was required to conduct environmental review.

CEQA is a statutory scheme found in the California Public Resources Code that was enacted to ensure public agencies inform their decision-making with environmental considerations.

Generally, CEQA applies to “projects,” which is defined under CEQA, at Public Resources Code § 21065, as an activity that may cause “either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” This definition requires a public agency to make a factual determination regarding the impact of the proposed activity.

However, another section of CEQA appears to deem certain activities as projects per se, without a factual determination of whether the activity may cause a direct or reasonably foreseeable indirect physical change in the environment. Specifically, Public Resources Code § 21080(a) states CEQA applies to “…discretionary projects proposed to be carried out or approved by public agencies, including, but not limited to, the enactment and amendment of zoning ordinances….”

UMMP argued that the City’s adoption of the zoning amendment was a “project” under both      § 21080 as a project per se, and also under § 21065 because the zoning amendment could cause – directly or indirectly – a physical change in the environment.

Both the trial court and the court of appeal denied UMMP’s challenge, finding the ordinance was not a project because it did not have the potential to cause a physical change to the environment.

The California Supreme Court reversed. With respect to § 21080, the court found it to be ambiguous in that it could be interpreted to require CEQA review for any “enactment and amendment of zoning ordinances,” or it could be interpreted as a generic list of activities to which CEQA might apply.

The Court resolved the ambiguity using several well-known rules of statutory interpretation. First, the Court noted that statutory provisions such as § 21080 must not be considered in isolation, but rather in the context of the entire statute. Next, the Court noted that where an express definition of a term is provided, it is usually binding on the courts.

Applying these rules, the Court noted the term “project” was defined in CEQA at § 21065, which, as noted, provides that an activity is a “project” if it may cause “either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.”

As such, the Court held that § 21080 must be understood to be a generic list of activities to which CEQA might apply, and confirmed the zoning amendment would only be considered a “project” if it otherwise could “cause either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment” pursuant to § 21065.

After resolving the conflicting interpretations of § 21080, the Court went on to hold the particular zoning amendment at issues (allowing medical marijuana dispensaries) was indeed a “project” under § 21065 because it had the potential to cause a change in the physical environment in the form of retail construction as well a citywide change in traffic patterns.

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