Are You Ready for 2020? Here is What Businesses in the Grocery Industry Need to Know

CDF Partner Carolina Schwalbach authored the article "Are You Ready for 2020? Here is What Businesses in the Grocery Industry Need to Know" for Today's Grocer on December 20, 2019.

2019 has been a busy year for the California Legislature with several new employment laws becoming effective in 2020. Here is some information about several issues grocers need to tackle heading into the coming year.

Minimum Wage. Starting January 1, 2020, California’s Minimum Wage will increase to $12 per hour for employers with 25 employees or less, and $13 per hour for employers with 26 employees or more.

Independent Contractor Issues. Independent contractor misclassification has been a “hot topic” in 2019 as employers try to understand the consequences of the Dynamex case. The findings from that case have now been codified and expanded by Assembly Bill 5 (“AB 5”). Under the Dynamex test, most California employers (with very specific exceptions) must meet the “ABC” test if they intend to classify someone as an independent contractor. This means that the person must be: (1) free from the control and direction of the hiring entity; (2) contracted to perform work that is outside the usual course of the hiring entity’s business; and (3) customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed. Grocers with potentially covered workers and contracting relationships (for instance, grocery delivery services) should closely review this bill.

Arbitration Agreements. It is prudent to have employees enter into arbitration agreements with valid class action waivers. But starting in 2020 a new law prevents employers from requiring an employee to agree to the arbitration of most employment claims as a condition of employment. The new law is not intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (“FAA”). So, it will be more important than ever to have carefully draft agreements that are clear and visible, that reflect that the agreement is governed by the FAA, and that you provide employees with an opportunity to review, consider, and ask questions before signing. As for cases in arbitration, employers need to ensure that arbitration fees are being paid within 30 days or else they risk being in material breach of the arbitration agreement. Employees are increasingly demanding prompt payment of arbitration fees and threatening to move the case to state court otherwise.

Lactation Accommodations. Grocers should implement a written lactation accommodation policy that tells employees that, if requested, they will be provided with a safe and clean lactation room (not a bathroom), as well as access to a sink and refrigerator close to their workspace. Failure to provide an employee with an appropriate space and/or break will result in penalties (one additional hour of pay for violations). Grocers with under 50 employees may, under very specific circumstances, seek an exemption, but all employers need to make a reasonable effort to provide a place for an employee to express milk in private.

FEHA Statute of Limitations. Under existing law, employees had a year from the date of an unlawful practice to contact the Department of Fair Employment and Housing if they wanted to file a lawsuit. But a new law will give employees up to three years to do so. Unfortunately, this means that Grocers will likely face more claims and more difficulties gathering evidence.

Sexual Harassment Prevention Training. A previous law required all employers with at least five employees to provide at least two hours of training and education regarding sexual harassment to all supervisory employees and at least one hour of training and education to all nonsupervisory employees. Under a new law, employers have until January 1, 2021, to comply. So, if your grocery outlet is not yet in compliance, then 2020 is the year to ensure you are.

Ethnic Hairstyles. In 2020 the law will prohibit discrimination because of historical traits associated with race, including hair texture and protective hairstyles, such as locks and braids. So, employers should ensure that they do not have policies that would prohibit such hairstyles.

We know the end of the year is a busy time for grocers, especially during the holidays. But,with all the changes coming in 2020 (this article only addresses a few of them), ensuring compliance with these new laws should be a priority. Meeting with knowledgeable employment counsel can help provide clarity and allow you to focus on the other important issues your company is facing, like what type of bubbly to choose for your New Year’s celebration.

As first appeared on Today's Grocer.