October has arrived, which signifies two things: pumpkin spice lattes are back, and new California employment laws are here.
Despite a global pandemic and two COVID-19-related legislative shutdowns over the last seven months, California Gov. Gavin Newsom and the California legislature have concluded the 2020 Legislative session on September 30, 2020, with an outbreak of new employment-related laws for employers to grapple with. Not surprisingly, many are related to COVID-19.
As indicated below, some of these laws went into effect immediately upon Gov. Newsom’s signature and require urgent compliance adjustments. All others go into effect on January 1, 2021.
As the ink dries on Gov. Newsom’s flurry of signatures signing the below legislation into law, our team will take a deeper dive in the upcoming weeks into some of these bills and provide more detailed analyses. In the meantime, our team provides an overview of the key components of the more impactful employment-related legislation from the 2020 California Legislative session.
AB 1867 created new Labor Code section 248.1, which immediately requires private businesses of 500 or more employees nationally to provide employees with up to 80 hours of COVID-19 supplemental paid sick leave. This legislation was designed to cover nearly all workers in California, who would not otherwise be entitled to the supplemental paid sick leave covered by the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act (FFCRA) in April 2020. The bill also codifies Gov. Newsom’s Executive Order N-51-20, which previously provided supplemental paid sick leave for food sector workers.
Both new sections of California’s Labor Code 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.
Notably, the bill requires employers to post or distribute a notice in the workplace and provide the amount of available leave on the employee’s wage statement. These provisions are set to expire on December 31, 2020, or upon the expiration of the FFCRA, whichever is later.
California’s Labor Commissioner’s Office recently published “FAQs for Companies with 500 or More Employees Nationwide and for Health Care Providers and First Responders Excluded from the Federal COVID-19 Related Paid Sick Leave.”
SB 1159 codifies Gov. Newsom’s Executive Order (N-62-20), which expired in July 2020. SB 1159 creates a rebuttable presumption for employees who contracted COVID-19 in the workplace―if certain circumstances are met for purposes of workers’ compensation.
In addition, SB 1159 requires that employers comply with the following reporting requirements established under new California Labor Code section 3212.18 as follows:
California Division of Workers’ Compensation (DWC) recently published FAQs regarding SB 1159.
Passed in 2019, AB 5 codified and expanded the California’s Supreme Court’s Dynamex ruling, using the “ABC Test” to determine whether a worker is an employee or independent contractor, while also creating numerous exemptions for various professional services and industries.
AB 2257 does not change the underlying framework of AB 5, but revises and clarifies currently existing exemptions (including the bona fide business-to-business contracting relationship exemption), adds numerous industry-specific exemptions, and clarifies other existing industry-specific exemptions.
AB 1512 amends California Labor Code section 226.7 to implement new rest period rules for security officers registered pursuant to the Private Security Services Act. Specifically, the amendment permits employers to require that the security officers remain on premises during rest periods, to remain on call, and to carry and monitor a communication device during rest periods.
If a rest period is “interrupted,” the security officer shall be permitted to restart the 10-minute rest period as soon as practicable. The amendment explains that “interrupted” means being called upon to return to active duty before completing the rest period, and does not include simply being on the premises, remaining on call, or monitoring any communication devices.
AB 1512 provides “it is in the public interest that security officers are able to respond to emergency situations without delay. This may require security officers to remain on the premises and on call during paid rest periods, and to carry and monitor a communication device … it is the intent of the Legislature to abrogate, for the security services industry only, the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, to the extent that decision is in conflict with this act.”
AB 1512 went into effect immediately upon Gov. Newsom’s approval on September 30, 2020, but does not apply to cases filed before January 1, 2021.
AB 2479 amends California Labor Code Section 226.75 extending the exemption that applies to rest periods for employees until January 1, 2026. This applies to safety-sensitive positions at petroleum facilities, if such employees must carry and monitor communication devices and respond to emergencies, or remain on premises to monitor for the same reasons.
AB 3175 amends Section 1700.52 of the Labor Code. This industry-specific law requires that the parents or legal guardians of any minor aged 14 to 17 years to ensure the minor has completed sexual harassment training made available online by the Department of Fair Employment and Housing (DFEH), or other legally-compliant training.
AB 2043 funds a bilingual outreach campaign regarding COVID-19 guidance. Specifically, the bill requires the California Division of Occupational Safety and Health’s (Cal/OSHA) to disseminate to agricultural employers and employees best practices for COVID-19 infection prevention, both in English and Spanish. The bill also requires the division to collaborate with various organizations to conduct a statewide outreach campaign targeted at agricultural employers to disseminate best practices and educate employees on any COVID-19-related employment benefits to which they are entitled, including access to paid sick leave and workers’ compensation.
AB 685 establishes stringent COVID-19 recording and reporting requirements when employers receive notice of a potential COVID-19 exposure at the workplace. Specifically, employers are required to provide employees with written notification within one business day of receiving notice of “potential exposure” to COVID-19. Those who must receive notice of potential exposure include all employees, the employers of subcontracted employees, and exclusive representatives who were on the premises at the same worksite as the infected individual.
The law requires that an employer with an “outbreak” (defined as three or more cases within a 14-day period) report that outbreak to the local public health department in the company’s jurisdiction within 48 hours. Finally, the bill increases Cal/OSHA’s enforcement authority related to COVID-19.
SB 1383 significantly expands the California Family Rights Act―California’s version of the Family Medical Leave Act―to include all employers with five or more employees (much fewer than the previous 50 or more employees’ requirement). The bill also expands the definition of family members, so that employees may now take protected leave to (1) care for grandparents, grandchildren, siblings, or 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 U.S. armed forces. SB 1383 also expands the definition of child to include the child of a domestic partner. Finally, SB 1383 also eliminates the previous carve out that existed for certain highly paid or key employees.
Providing a small measure of relief to the CFRA expansion for certain employers, AB 1867 (also discussed above) also requires the DFEH to create a small-employer family leave mediation pilot program, authorizing small employers and their employees to request mediation through the DFEH’s dispute resolution division within a specified timeframe. Under the 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 provisions prohibit 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.
AB 2992 amends Labor Code Sections 230 and 230.1 to expand the prohibition on discrimination and retaliation against employees that are victims of crime or abuse when they take time off for judicial proceedings, medical attention, or relief for domestic violence, sexual assault, stalking, or other crimes that cause physical or mental injury.
SB 973 requires private employers with 100 or more employees that must file the federal annual Employer Information Report (EEO-1) to also submit a pay data report to the DFEH that states the number of employees by race and gender in various job categories on or before March 31, 2021. This essentially creates California’s version of the federal EEO-1 information that some employers must submit to the federal Equal Employment Opportunity Commission (EEOC).
SB 973 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 authorizes the DFEH to seek an order requiring non-reporting employers to comply.
Read our in-depth analysis of the bill here.
In 2019, California enacted California Code of Civil Procedure Section 1002.5 (AB 749) to generally prohibit settlement agreement provisions limiting an “aggrieved employee’s” ability to work for the settling employer. AB 2143 revises that law and requires the aggrieved person to have filed the claim in good faith for the prohibition to apply.
In addition, the current prohibition against “no rehire” provisions contains an exception if the employer has made a good faith determination that the aggrieved employee engaged in sexual harassment or sexual assault. This law expands this exception to include “or any criminal conduct,” but also requires this good faith determination of the alleged disqualifying conduct be made and documented before the aggrieved employee filed a complaint. Said differently, this bill allows an employer to include a no-rehire clause in a settlement agreement with a worker who filed an official complaint in good faith if, before the worker filed the complaint, the employer made and documented a good faith determination that the worker engaged in sexual harassment, sexual assault, or any criminal conduct.
Employers are currently required to permit employees to take up to half of their accrued sick leave to care for a family member (also known as kin care). AB 2017 revises current law to clarify that an employee has the right to designate sick leave as kin care to avoid a designation error and unintentional draw down of kin care time when sick days were actually taken for personal sick leave.
Under current law, workers alleging they were discriminated or retaliated against in violation of any Labor Commissioner-enforced law have six months to file a complaint with the Labor Commissioner. AB 1947 amends 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 amends Labor Code Section 1102.5 to authorize courts to award reasonable attorney’s fees to plaintiffs who bring a successful Section 1102.5 whistleblower action.
The CCPA provides California consumers and employees rights over how and whether the personal data they provide to businesses is collected, retained, and sold. Because the CCPA’s definitions are broad, employee data that employers collect for employment purposes was included. Last year’s AB 25 largely exempted employee data from the CCPA for one year.
AB 1281 extended the exemption for one more year―until the end of 2021. Employers subject to the CCPA must still comply with the CCPA’s requirement to provide notice before, or at the time of, collecting personal information from an applicant or employee that describes every category of information that will be collected and the purposes for which it will be used.
AB 3364, titled “judiciary omnibus,” covers a myriad of items from the licensure of attorney to the debts of limited liability corporations. Most relevant to employers, AB 3364 clarifies that the Fair Employment and Housing Act (FEHA) prohibits discrimination against individuals who are veterans or because of the individual’s military status, instead of veteran and military status. This makes conforming, nonsubstantive changes to the term “veteran or military status” in the FEHA.
AB 3075 makes a successor to any judgment debtor liable for any wages, damages, and penalties owed to any of the judgment debtor’s former workforce pursuant to a final judgment, and sets forth certain criteria to establish successorship.
AB 3075 also, by amendment to Labor Code Section 1205, authorizes local jurisdictions to enforce state labor standards requirements with respect to imposition of minimum penalties for failure to comply with wage-related statutes, as set forth in Labor Code Section 1206.
California’s Paid Family Leave program currently provides wage replacement benefits for employees who take time off for certain specified purposes, including a “qualifying exigency” related to specified family member’s covered active duty in the military. AB 2399, in Sections 3302 and 3307 of the Unemployment Insurance Code revises the definitions of care recipient, care provider, and family care leave for purposes of the qualifying exigency provisions.
Following 2018’s SB 826 (which required publicly held, domestic, or foreign corporations with their principal executive offices in California to have a certain number of females on their board of directors), newly enacted SB 979 requires publicly held domestic or foreign corporations headquartered in California (according to the corporation’s SEC Form 10-k) to include at least one director from an “underrepresented community” on their boards by the end of 2021. By the end of 2022, the corporation must have at least two or three such members depending on the size of the board.
The bill defines a director from an “underrepresented community” as an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender. Violations of these provisions could subject a corporation to a fine of $100,000 for the violation and $300,000 for each subsequent violation.
AB 1963 amends Section 11165.7 of the Penal Code to include “human resource employees” for businesses that employ minors to a list of mandated reporters to a business of five or more employees that employs minors. Human resources employee is defined as “the employee or employees designated by the employer to accept any complaints of misconduct” as required under the FEHA. These mandated reporters are required to report to relevant government agencies and/or law enforcement, whenever they―in their professional capacity or within the scope of their employment―have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect. Failure by a mandated reporter to report an incident of known or reasonably suspected child abuse or neglect is a misdemeanor punishable by up to six months of confinement in a county jail by a fine of $1,000, or by both the imprisonment and fine.
The bill also adds―for purposes of reporting sexual abuse―any adult person whose duties require direct contact with, and supervision of, minors in the performance of the minors’ duties in the workplace of a business subject to the FEHA.
Finally, AB 1963 also requires employers subject to these new reporting requirements to provide mandated reporters with training on identification and reporting of child abuse and neglect. This training is offered by the Office of Child Abuse Prevention in the State Department of Social Services.
California employers should act swiftly to comply with the new laws that went into effect immediately and prepare for compliance with the laws going into effect on January 1, 2021.
If you have any questions about these laws, contact your Goldberg Segalla attorney or one of the attorneys below to discuss how these new laws affect your company.