Can you believe that we are only two months away from wrapping up this year? It is time to look ahead and prepare for new laws (and a few challenges) that might affect your business in 2021. September 30, 2020 was Governor Newsom’s deadline to sign into law all bills passed by the legislature this year. The Governor signed a great quantity of bills and vetoed a few as well. Below is a brief summary of some of the most notable employment- related laws that may affect your business.
Effective immediately, AB 1867 expands supplemental paid sick leave for certain COVID-19 related reasons. The law applies to employers with 500 or more employees in both the food sector and non-food sector industries (with slight distinctions), as well as first responders and health care providers (regardless of size), not already covered by the Families First Coronavirus Response Act (FFCRA). The Department of Labor Standards Enforcement (“DLSE”) has created two separate posters for employers with the law’s requirements; one for food sector workers and one for all other covered employers that must be placed in a conspicuous place. AB 1867 does not apply to employees working from home. Both supplemental sick leave and FFCRA are set to expire on December 31, 2020 unless the FFCRA expanded paid sick leave is renewed. Employees are entitled to up to 80 hours of paid sick leave, depending on hours regularly worked. Employers cannot require employees to use other forms of paid sick leave first before they receive expanded supplemental paid sick leave under this law.
AB 1867 also provides a hand-washing requirement that food sector employees be permitted to wash their hands every thirty minutes and as needed. This portion of the law will not expire.
SB 1159 went into effect on September 17, 2020 and established a rebuttable presumption for worker’s compensation coverage for employees who contract COVID-19 under certain conditions after July 6, 2020, (when the Governor’s previous executive order, N-62-20, expired). The presumption will apply if the worker’s COVID19 related illness developed within 14 days of performing labor or services at the place of employment during an “outbreak.” The statute defines an “outbreak” as the following:
- Employer with 100 employees or less at a specific location- 4 positive tests within two weeks
- Employers with more than 100 employees at one location- 4% of the total employees test positive within 2 weeks
- If public authorities order the business to close due to a risk of infection.
The statute does not apply to workers who are working remotely from their homes. The presumption can be rebutted if the employer has evidence of the employer’s safety precautions and the employee’s taking non-occupational risks. Employers can face up to a $10,000 fine for failing to report or filing intentionally false or misleading information.
AB 2257 has made some revisions and clarifications to the worker classification law, AB 5. AB 5 uses a strict ABC test to determine whether a worker should be classified as an employee or independent contractor. AB 2257 does not change the general framework of AB 5 but makes revisions to the existing exceptions and added new ones.
A few of the industries that received new carve out exemptions are:
- Recording artists and related occupations (though not for motion picture industry projects)
- Photographers in certain situations
- Creation, marketing, promotion or distribution of sound recordings
- Underwriters and certain insurance industry positions
- Real estate appraisers/home inspectors
The bill also revised the criteria for designating referral agencies and expanded the definition of business to business relationship (as detailed) to include sole proprietors.
The bill provides for injunctive relief to prevent misclassification of employees, to be prosecuted against a putative employer by the Attorney General or a city attorney. This bill would also authorize a district attorney to prosecute an action for injunctive relief.
To be in compliance, employers should revisit their independent contractor designations and agreements with counsel to make sure they are able to defend their classification of workers.
Wage and Hour
Two industry specific bills were passed this year with regard to rest breaks. AB 1512 allows security guards to stay at their workplace when taking their rest breaks. If work interrupts their break, they can restart their break as soon as they are able to continue. AB 2479 extends this rest break exception to petroleum facilities that have employees in safety sensitive positions.
Bill SB 1384 extends the Labor Commissioner’s ability to represent claimants that are financially unable to represent themselves in a hearing, where a court order has compelled arbitration to determine the claim.
Another bill, AB 3075, makes successor employers liable for its predecessor’s unpaid wage judgments. It also establishes specific criteria to define successorship.
Board of Directors
AB 979 requires that a corporate board of directors of a publicly held corporation with its principal executive office in California, have a minimum of one director from an underrepresented community no later than the end of 2021. By 2022, a board with four to nine directors, must have at least two directors from underrepresented communities, and a board of more than nine must have at least three. An “underrepresented individual” is a person that identifies as African-American, Black, Latino, Hispanic, Asian, Pacific Islander, Native Hawaiian or Alaska Native, Native American, or who self-identifies as lesbian, gay, transgender, or bisexual.
Safety at Work
AB 685 establishes more COVID-19 reporting and recording requirements. Beginning January 1, 2021, after receiving notice of potential exposure, employers must provide notices to different groups of employees within one business day and notify their local public health agency within 48 hours of an “outbreak.” The definition of an “outbreak” under this bill differs from the definition under SB 1159. The bill increases the California Division of Occupational Safety and Health’s (Cal/OSHA) enforcement authority related to COVID-19.
AB 2537 and SB 2537 require public and private employers of workers in hospitals to supply certain employees with personal protective equipment, maintain a stockpile, and be able to provide inventory information to CAL/OSHA upon request.
On January 1, 2020, SB 1383 will expand California Family Rights Act (CFRA) coverage to employers with 5 or more employees. Now, employers must provide 12 weeks of unpaid job protected leave if their eligible employee has a serious health condition, they are taking care of a defined family member with a serious health condition, or to bond with a child. Employees are eligible for this leave if they have worked 1250 hours for the employer in the last 12 months. Employers must continue to provide health benefits at the same level of contribution during these twelve weeks, as they did prior to the leave. The employee must be returned to their same or comparable position after the leave. This bill also expands the definition of “family members” beyond what was covered under FMLA. CFRA will now cover grandchildren, grandparents, and siblings. This will have a huge impact on larger employers that in some cases may need to provide two leaves separately under FMLA and CFRA. Employers should draft or revise their employee handbooks (we can help!) with new policies that detail leave provisions; train managers and supervisory personnel on leave designation requirements and what forms to provide employees.
Kin Care Leave Designation
Currently, employees may use half of their California-provided paid sick leave to take care of a family member, called “kin care.” AB 2017 revises the “kin care” law to clarify that the employee has the right to designate accrued sick leave as kin care in order to avoid a designation error.
Crime Victim Protection
AB 2992 expands the prohibition of discrimination and retaliation against employees who are victims of crime or abuse when they need to take time off for medical attention, judicial proceedings, or any related relief.
Following AB 25, which went into effect in 2019 exempting employee data from the California Consumer Privacy Act (“CCPA”) for one year, this year’s AB 1281 extends the exemption for an additional year until the end of 2021. The CCPA applies to employers who have annual gross revenues of $25 million; annually buy, sell, receive, or share for commercial purposes the personal information of 50,000 or more consumers, households, or devices; or derive 50 percent or more of its annual revenues from selling consumers’ personal information. Because the CCPA is defined broadly, it encompasses information about employees collected by employers.
Employment of Minors
AB 90 makes it easier for minors to obtain a work permit during school closures related to COVID-19. It allows for electronic submission/collection of required documents without the appearance of the minor or their parent or legal guardian. Effective immediately, AB 3175 specifies that a work permit may not be issued to a minor in the entertainment industry unless the minor’s parents or guardian accompanies the minor during their mandatory harassment prevention training. However, AB 3369 exempts minors who have received a work permit within the last two years from the state sexual harassment prevention training deadline of January 1, 2021.
Aside from issuing various bills, Newsom has vetoed a couple of bills. Most notably, AB 3216 which would have imposed a “right to call” mandate. Under this bill, employees who were laid off or furloughed as a result of COVID-19 would have been rehired according to seniority.
Want to Learn More?
For a more detailed summary of these and a few other notable bills/case law decisions, please join us for our next Working Wisely webinar on November 19, 2020 at noon PST.
The information provided in this blog does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available in this blog are for general informational purposes only.
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