The new year is right around the corner, and with it comes a host of new and amended laws for California employers. As we blogged about previously, numerous California employment laws changed in 2020 – COVID-19-related AB 685, AB 1867 and SB 1159, expansions to California’s Family Rights Act in SB 1383, new exemptions relating to independent contractor status in AB 2257, expansions to time limits and recovery of attorneys’ fees for retaliation claims in AB 1947, expanded leave rights for victims of abuse in AB 2992, increased bankruptcy homestead exemption in AB 1885, and statewide adoption of Obamacare in SB 78.
In addition to the ones we blogged about previously, there are more new employment laws going into effect January 1, 2021. Below is a list of the most important ones for California employers. Employers should familiarize themselves with these changes and get ready to comply – beginning next week!
Independent Contractor Exemptions – AB 323
AB 323 expands the exemption to the Dynamex ABC test for independent contractors relating to newspaper distributors and newspaper carriers, removing the condition that a newspaper carrier work under contract with either a newspaper publisher or newspaper distributor, and extends the exemption period from January 1, 2021 to January 1, 2022. This law is in addition to AB 2257, which expanded the initial exemptions to the ABC test and introduced new exemptions covering the music industry and services provided at single-engagement events, as we blogged about here.
COVID-19 Reporting – AB 685
As we blogged about previously here, AB 685 outlines new requirements for employers relating to suspected and diagnosed cases of COVID-19. AB 685 spells out very specific steps an employer must take beginning January 1, 2021 for notifying employees (including employees of subcontracted workers, and union representatives) of COVID-19 cases, and the timing for each step. Notice must be in writing, benefits and other options must be given to anyone potentially exposed, and information about disinfection and safety plans must be provided. And if there is an “outbreak” (as defined by the law) within a 14-day period, employers must notify their local health department.
Three other COVID-19-related laws went into effect earlier in 2020 – AB 1867 (requiring large employers with more than 500 employees to provide COVID-19-related paid sick leave – effective April 16, 2020), SB 1159 (creating a “disputable presumption” of workers’ compensation liability if an employee has an illness or death resulting from COVID-19 between July 6, 2020 and January 1, 2023, and imposing additional reporting requirements for employers when an employee has tested positive – effective September 17, 2020), and AB 2043 (requiring CalOSHA to disseminate information on best practices for COVID-19 infection prevention and to work with community, employee and employer organizations to conduct outreach targeted at agricultural employees to assist in dissemination of this information –effective September 28, 2020).
Rest Breaks for Security Officers and Petroleum Safety Employees – AB 1512 and AB 2479
There are two new laws going into effect January 1, 2021 relating to rest breaks for security officers and employees at petroleum facilities. Under AB 1512, security officers registered pursuant to the Private Security Services Act and whose employer is a registered private patrol operator can be required to remain on premises, remain on call, and carry and monitor a communication device during rest periods without this violating their rest break. If their rest period is actually interrupted, they must be permitted to restart a rest period anew as soon as practicable. AB 2479 extends through January 1, 2026 the existing exemption from rest period requirements for certain safety employees at petroleum facilities, as set out in Labor Code Section 226.75.
Attorneys’ Fees for Whistleblower Retaliation & Extended Time to File a DLSE Claim – AB 1947
Labor Code § 1102.5 provides a vehicle for whistleblowers to bring claims for retaliation. AB 1947 amends this Labor Code section to authorize courts to award attorneys’ fees to employees who prevail on a whistleblower retaliation claim under § 1102.5. AB 1947 also extends the time to file a DLSE claim with the Labor Commissioner under Labor Code § 98.7. Read our blog about AB 1947 here.
Mandated Reporters under Child Abuse and Neglect Reporting Act – AB 1963
AB 1963 expands the list of those who are mandated reporters under the Child Abuse and Neglect Reporting Act. Now, if a business has 5 or more employees and employs minors, its human resources employees and direct supervisors are mandated reporters of child abuse or neglect.
Sick Leave and Kin Care – AB 2017
Labor Code § 233 currently permits employees to use half of their annual accrual of sick leave to care for a family member. AB 2017 amends this section to give employees the sole discretion to designate as “sick leave” time taken off to care for a family member.
“No Rehire” Provisions in Settlement Agreements – AB 2143
California Code of Civil Procedure § 1002.5 currently prohibits “no rehire” provisions in settlement agreements. “No rehire” provisions usually state that the departing employee will not apply to work for their prior employer (or any related entity) and purport to affirm that the employer’s decision not to rehire the employee is not discriminatory or retaliatory. But AB 2143 amends this section to allow “no rehire” provisions in settlement agreements where the “aggrieved person” did not bring their claim in good faith. AB 2143 further clarifies that the current “no rehire” exception for sexual harassment and sexual assault claims can only be included where the employer made a documented and good-faith determination that the individual engaged in sexual harassment or sexual assault before the aggrieved person filed a claim. AB 2143 also expands the “no rehire” exception to include criminal conduct, subject to the same types of documentation and timing conditions as apply to claims of sexual harassment and sexual assault.
Changes to Paid Family Leave Law – AB 2399
Unemployment Insurance Code §§ 3302 and 3307 relate to paid family leave and are commonly referred to as the “Paid Family Leave program.” Prior to AB 2399, the Paid Family Leave program provided wage replacement benefits for workers who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement. AB 2399 amends these provisions and, effective January 1, 2021, the Paid Family Leave program will be expanded to provide wage replacement benefits to workers who take time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the worker’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
PPE Requirements for General Acute Care Hospital Workers – AB 2537
AB 2537 requires General Acute Care Hospitals to provide personal protective equipment (“PPE”) to workers who provide direct patient care services or whose services directly support such care, and to report their highest seven-day consumption of PPE in 2019 upon agency request.
Expansion of Protection to Victims of Crime or Abuse – AB 2992
Labor Code §§ 230 and 230.1 set forth protections for victims of crimes or abuse, prohibiting employers from taking action against employees who were victims of a crime (or whose family members were victims of a crime) when the employee takes time off afterward. Currently, Labor Code § 230 prohibits an employer with 25 or more employees from discharging, or discriminating or retaliating against, an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for any specified purpose, including seeking medical attention for injuries caused by the domestic violence, assault, or stalking and appearing in court pursuant to a subpoena. But AB 2992 expands these protections to prohibit an employer from discharging or discriminating against an employee who is a victim of crime or abuse for taking time off from work to obtain or attempt to obtain any relief, including a temporary restraining order, restraining order, other injunctive relief, psychological counseling, safety planning, or helping ensure the health, safety, or welfare of the victim or his/her child. Further, AB 2992 prohibits employers from taking action against an employee when an unscheduled absence occurs if the employee later provides evidence that s/he was receiving services for injuries relating to the crime or abuse or if the employee was serving as a victim advocate.
Statement of Information Reporting Requirements – AB 3075
AB 3075 requires business entities filing a Statement of Information with the California Secretary of State to disclose whether any officer or director (or, for limited liability companies, any member or manager) has an outstanding final judgment for violation of a wage order or the Labor Code. It also provides that any successor to a judgment debtor is liable for wages, damages and penalties owed pursuant to a final judgment to any of the judgment debtor’s former employees and authorizes local jurisdictions to enforce more stringent local standards relating to payment of wages. AB 3075 goes into effect either January 1, 2022 or when the California Secretary of State certifies that California Business Connect is implemented, whichever is earlier.
Expansion of Pay Data Reporting Requirements – SB 973
SB 973 significantly expands the requirements for Employer Information Reports (EEO-1) for private employers with 100 or more employees who currently have to file an annual EEO-1 report under federal law. SB 973 mandates that the pay data report, submitted to the DFEH, include all of the following data: (1) the number of employees by race, ethnicity, and sex in 10 job categories; (2) the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey; (3) the total number of hours worked by each employee counted in each pay band; and (4) the employer’s North American Industry Classification System (“NAICS”) code. While SB 973 goes into effect on January 1, 2021, the revised pay data report is initially due on or before March 31, 2021, and will be due on or before March 31 for each year thereafter.
Expansion of CFRA Protections – SB 1383
As we blogged about previously here, SB 1383 implemented significant changes changes to the California Family Rights Act (“CFRA”) – most notable of which is that it is now applicable to all employers with 5 or more employees (whereas previously, it applied only to employers with 50 or more employees). Additionally, SB 1383 requires an employer who employs both parents of a child to grant CFRA leave to each employee for that child’s health condition, birth, or placement, and makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. Because CFRA will, as of January 1, 2021 apply to all employers with 5 or more employees, employers previously not subject to CFRA protections must now become familiar with this law.
Labor Commissioner’s Ability to Represent Claimants in Arbitration – SB 1384
SB 1384 amends Labor Code § 98.4 to permit the Labor Commissioner to represent a claimant who is financially unable to represent themselves in a hearing where (a) a court order has compelled arbitration to determine the claim and (b) the Labor Commissioner determined that the claim has merit. The bill also requires that a petition to compel arbitration be served on the Labor Commissioner. When seeking to compel DLSE claims to arbitrations, employers should be aware that the Labor Commissioner could seek to be involved in that proceeding on behalf of the employee.
Minimum Wage Increases
Effective January 1, 2021, California’s statewide minimum wage increases to $14 for employers with 26 or more employees and $13 for employers with 25 or less employees. Local minimum wages may also increase. With many employees working remotely due to COVID, employers must check the local minimum wage requirements for every location in which their employees work to ensure full and complete compliance.
Employers should review carefully all of these new laws and determine how these changes may affect your business in 2021 and beyond. If you have any questions, reach out to a Workplace Legal attorney so we can help keep you compliant with California law.