The Legislature has been extremely active in the area of California employment laws. Here are the most significant employment-related bills approved at the end of the last Legislative session.
Supplemental Paid Sick Leave & Small Employer Family Leave Mediation
New Labor Code section 248.1 requires COVID-19 supplemental paid sick leave for workers employed by private businesses of 500 or more employees nationally (and certain health care providers and emergency responders). This bill covers all workers in California who may not be entitled to supplemental paid sick leave covered by the Emergency Paid Sick Leave Act a part of the federal Families First Coronavirus Response Act (“FFCRA”).
The law also provides supplemental paid sick leave for food sector workers, in new Labor Code section 248. Both new sections require hiring entities to provide COVID-19 supplemental paid sick leave to workers who are unable to work due to specified reasons relating to COVID-19. Section 248.1 requires the sick pay balance be stated on employees’ wage statements. A notice must also be posted in the workplace or distributed via mail, email, etc., informing each employee of their right to such sick leave. These provisions expire on December 31, 2020, or upon the expiration of the FFCRA, whichever is later.
The Department of Fair Employment and Housing (DFEH) under the new law is required to create a small employer family leave mediation pilot program for small employers and their employees to request mediation through the DFEH’s dispute resolution division within a specified timeframe. Under this program, employers or employees may require DFEH mediation if: (1) the DFEH issues a right-to-sue notice based on a DFEH complaint that is related to family leave and (2) the named employer has between 5-19 employees. The new law prohibits employees from pursuing civil actions until the mediation is complete, and tolls the statute of limitations, including for additional related claims, from receipt of a request to participate in the program until the mediation is complete. These provisions will be repealed on January 1, 2024.
Workers’ Compensation For COVID-19
New law, Senate Bill 1159, creates a rebuttable presumption that an employee contracted COVID-19 in the workplace if an employer has five or more employees and if certain circumstances are met for purposes of workers’ compensation. Employers must report these claims to workers’ compensation claims administrators. The law has stiff fines for non-compliance.
OSHA – COVID-19 Awareness
Assembly Bill 2043 now requires Cal-OSHA to disseminate information on best practices for COVID-19 infection prevention in English and Spanish, together with other awareness and prevention measures, targeted at and to be easily understood by, agricultural employees from various ethnic and cultural backgrounds. These provisions expire when the Governor or Legislature terminate the state of emergency.
Security Officers – Rest Periods
AB 1512 relieves security officer employers through January 1, 2027 from rest period laws. It authorizes registered private patrol operator employers to require certain security officer employees (those registered under the Private Security Services Act) to remain on the premises during rest periods; to remain on call; and to carry and monitor a communication device. The security officer must be permitted to restart a rest period anew as soon as practicable if the rest period is interrupted. This later, uninterrupted rest period qualifies as a compliant rest period. If a security officer cannot take an uninterrupted rest period of at least 10 minutes for every four hours worked (or major fraction thereof), the officer must be paid one additional hour of pay at the base hourly rate. The new law does not apply to cases filed before January 1, 2021.
Certain Petroleum Workers – Rest Periods
Assembly Bill 2479 extends until January 1, 2026, the exemption in Labor Code section 226.75 that applies to rest periods for specified employees who hold safety-sensitive positions at petroleum facilities, to the extent they must carry and monitor communication devices and respond to emergencies, or remain on the employer’s premises to monitor the premises and respond to emergencies.
Worker Classification – Employees and Independent Contractors
The Legislature again revised the exemptions to the Dynamex test for determining whether a worker is an employee or independent contractor. Assembly Bill 2257 now exempts bonafide business-to-business contracting relationships from the law’s application; adds industry-specific exemptions (including proofers and record directors, persons who provide underwriting inspection, home inspectors and individuals who contract for the purpose of providing services at a single-engagement event); and further clarifies existing industry-specific exemptions.
Entertainment Industry – Minors Sexual Harassment Training
Assembly Bill 3175 amended Section 1700.52 of the Labor Code to require a parent or legal guardian accompany age-eligible minors during employer-provided sexual harassment training made available online by the DFEH, and to certify to the Labor Commissioner that the training has been completed.
A number of these new employment laws will become effective January 1, 2021. These include:
Employers – Annual Report of Pay Data
Senate Bill 973 requires that private employers with 100 or more employees who file the federal annual Employer Information Report (EEO-1) must also submit, on or before March 31, 2021, and each year thereafter, a pay data report to the DFEH that identifies the number of employees by race, ethnicity, and sex in the following categories: all levels of officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service workers. The new law also requires the DFEH to make the reports available to the Department of Labor Standards Enforcement (DLSE) upon request, to maintain the pay data reports for at least 10 years, and it authorizes the DFEH to seek an order requiring non-reporting employers to comply. The law prohibits any officer or employee of the DFEH or DLSE from making public any individually identifiable information obtained from the report prior to the institution of certain investigation or enforcement proceedings, and requires the EDD to provide the DFEH with the names and addresses of all businesses with 100 or more employees.
Settlement Agreements – No-hire Provisions Prohibited
Existing law prohibits no-hire provisions in settlement agreements unless the employer has determined in good faith that the aggrieved person engaged in sexual harassment or sexual assault. Assembly Bill 2143 revises this law. It now requires that employees have filed their claims in good faith for the prohibition to apply, and that the employer document its determination of sexual assault or sexual harassment before the aggrieved person filed the claim. The law also expands the exceptions to the no-hire provision prohibition to include a determination that the aggrieved person engaged in any criminal conduct, in addition to the existing sexual harassment and sexual assault exceptions.
Mandated COVID-19 Reporting
Assembly Bill 685 will require, as of January 1, 2021, employers, within one business day of receiving notice of potential exposure to COVID-19 in the workplace, to: (1) provide written notice to all employees, the employers of subcontracted employees, and exclusive representatives who were on the premises at the same worksite, (2) provide all employees who may have been exposed and their exclusive representative with information regarding COVID-19-related benefits, including, but not limited to, workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, or supplemental sick leave, and (3) notify all employees, the employers of subcontracted employees, and the exclusive representative on the disinfection and safety plan the employer intends to implement.
DLSE Complaints – Statute of Limitations
Assembly Bill 1947 amended Section 98.7 of the Labor Code to extend the deadline for filing Labor Commissioner complaints from six months to one year after a violation. The bill also amended Section 1102.5 of the Labor Code to authorize courts to award reasonable attorney’s fees to plaintiffs who bring a successful Section 1102.5 whistleblower action.
Paid Sick Leave Designation
Assembly Bill 2017 provides employees sole discretion to designate the days they take as paid sick leave under Section 233 of the Labor Code.
CFRA Expansion
As discussed in our first article of Business Briefs this month Senate Bill 1383 will expand the California Family Rights Act to require businesses with as few as five employees (eliminating the geographical restrictions) to provide 12 weeks of mandatory family leave per year. The bill also expands family care and medical leave to include leave (1) to care for grandparents, grandchildren, siblings, domestic partners with a serious health condition (in addition to existing leave to care for a parent or spouse), and (2) because of a qualifying exigency related to covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the US Armed forces. SB 1383 also expands the definition of child to include the child of a domestic partner. Finally, SB 1383 eliminates the previous carve out that existed for certain highly paid or key employees.
Wages – Enforcement
Under Assembly Bill 3075 a successor to any judgment debtor is liable for any wages, damages, and penalties owed to any of the judgment debtor’s former workforce pursuant to a final judgment. The Bill also sets forth certain criteria to establish successorship. The law also authorizes local jurisdictions to enforce state labor standards requirements with respect to imposition of minimum penalties for failure to comply with wage-related statutes.
Victims’ Protected Time Off
Assembly Bill 2992 has expanded the prohibition on discrimination or retaliation against employees for taking time off who are victims of domestic violence, sexual assault, or stalking, to include other crimes or abuses “that caused physical injury or that caused mental injury and a threat of physical injury” and “a person whose immediate family member is deceased as the direct result of the crime.” The law defines “crime” as “a crime or public offense as set forth in Section 13951 of the Government Code, and regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.”
Paid Family Leave for Military Members & Care Recipients
Assembly Bill 2399 defines “military member” for—and revises definitions of “care recipient,” “care provider,” and “family care leave” in—the family temporary disability insurance program (paid family leave). These definitions would apply for purposes of the employee’s “qualifying exigency” to covered active duty or call to covered active duty for members of the military.
Mandated Reporters – Human Resource Employees
Assembly Bill 1963 expands the list of mandated reporters to include human resource employees of a business of five or more employees that employs minors, as well as adults whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace. These employers must provide mandated reporters with training on identification and reporting of child abuse and neglect.
Direct Patient Care Employees – Educational Programs and Training Costs
Assembly Bill 2588 requires employers to reimburse employees providing direct patient care or an applicant for direct patient care employment for the costs of any employer-provided or employer required educational program or training.
These new laws affect and will affect many different types of businesses. With the plethora of new laws imposing new requirements on employers it is essential that employers be proactive and discuss with their employment counsel how to assure legal compliance before most of these laws become effective on January 1, 2021.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
