Effective January 1, 2021, employers with as few as five employees will have to comply with the California Family Rights Act (CFRA). What is AB 685? The new laws are related to COVID-19, leaves of absences, discrimination, and independent contractors. Under AB 5 only the Attorney General and certain city attorneys were able to seek such relief. Effective January 1, 2021, all employers except for health facilities must take the steps outlined below within one business day of receipt of notice that its workforce was exposed to an individual who either tested positive for COVID-19, was diagnosed with COVID-19 by a licensed healthcare provider, was ordered by a public health official to isolate due to COVID-19, or was determined by the county public health department to have died due to COVID-19. To address this, Proposition 22 included labor and wage policies specific to app-based drivers and companies. The DFEH intends to issue standard forms for employers to submit their pay data reports and will implement an employer submission portal on the DFEH website. This information is intended to help the claims administrator determine whether there is an “outbreak” at the worksite such that the presumption may be applicable. However, the core of AB 5 remains unchanged. AB 979 defines a "publicly-held corporation" as a corporation with outstanding shares listed on a major United States stock exchange and creates a timeline by which a minimum number of directors from underrepresented communities must be achieved. These new requirements are in addition to the requirements enacted last year, requiring female representation on such corporate boards, set forth in California Corporations Code section 301.3, as detailed in our firm’s alert from last year. Stay tuned as to how this litigation turns out and the impact on arbitration agreements in California. Global Mobility in a COVID-19 World – Key Employment and Tax... FDA Guidance: Use of “Potassium Salt” as an Alternate Name for “... Have UK Insolvency Practitioners Lost the Protection of Release... RCEP: Boosting Value Chains and Facilitating Trade Flows. CCP 1002.5 does not apply to standard severance agreements; only to settlement agreements when an employee has filed a claim against the employer in court, before an administrative agency, or through some form of ADR or employer internal complaint process. Read more in last year's alert. Important: Starting January 1, 2020, workers will be considered employees unless proven otherwise. When a presumption is applicable under this section, an employer has only 45 days after the claim form is filed to deny the claim (as opposed to the typical 90 days) and otherwise may only rebut the presumption with evidence obtained after that 45 day period. ); and. California employers should establish procedures to protect the unauthorized use and disclosure of medical information. So because the CFRA has a mandatory written policy requirement for employers doing business in California, all covered employers should implement an updated CFRA/FMLA or new CFRA policy and any associated notification letters and designation forms. Labor Code section 1102.5 broadly prohibits whistleblower retaliation. As a result, employees may be eligible to take as much as 24 weeks of combined leave under the CFRA and FMLA depending on the reason for the leave. disclosing a violation of state or federal law or a violation of or noncompliance with a local, state, or federal rule, or regulation to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting the investigation, hearing or inquiry. If the hiring business fails to establish any of these factors, the worker will remain classified as an employee. Violation of Section 1102.5 is currently a misdemeanor and may lead to actual damages (Labor Code §1105) and/or a civil penalty of $10,000 for each violation (Labor Code § 1102.5(f)). The NLR does not wish, nor does it intend, to solicit the business of anyone or to refer anyone to an attorney or other professional. The following update provides a brief overview of select legislation that will immediately affect California employers. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. Employers covered by the expanded CFRA are required to provide unpaid, job-protected leave of up to 12 weeks during each 12-month period for employees to bond with a new child of the employee or to care for themselves or a family member with a serious medical condition. It requires employers whose employees may have been exposed to COVID-19 in the workplace to notify their employees accordingly and report to local health officials. From a Child Support Agency: Cases managed by child support agencies in any state are called “4-D” cases, referring to Title IV-D of the Federal Social Security Act, the law that created Child Support Services agencies. EEOC Weighs in on Mandatory COVID Vaccines We’ve posted a couple of times in the past about whether employers may require workers to be vaccinated against COVID-19. Specifically, AB 979 defines “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.” In its findings and declarations supporting AB 979, the California Legislature noted that currently, over 35 percent of publicly-traded corporations headquartered in California have all White boards of directors. OSHA will also be able to issue “serious violation” citations for COVID-19 without first delivering notice to the employer with an opportunity to respond. It should be read in conjunction with AB 685, which implements various notice requirements for cases of COVID-19 in the workplace. In addition, employers are prohibited from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from such disclosures or participation. In September 2019, the California Legislature passed AB 5 which overhauled California law with respect to independent contractor relationships. refusing to participate in an activity that would result in a violation of state or federal statute, or violation of or noncompliance with a local, state, or federal rule, or regulation. Also beginning January 1, 2021, and until January 1, 2023, if OSHA alleges that there has been a “serious violation” due to COVID-19, it need not deliver to the employer a standardized form containing the alleged violation descriptions prior to issuing its citation as would otherwise be required. Employers covered by the expanded CFRA are required to provide unpaid, job-protected leave of up to 12 weeks during each 12-month period for employees to bond with a new child of the employee or to care for themselves or a family member with a serious medical condition. These policies provide workers with minimum compensation levels, health insurance subsidies, medical costs for on-the-job injuries, and prohibits drivers from working more than 12 hours in a 24-hour period unless the driver has been logged off for 6 uninterrupted hours. Currently, an employer with 25 or fewer employees must pay employees $12.00 per hour and an employer with 26 or more employees must pay employees $13.00 per hour. By seven days after the law's effective date, the California Labor Commissioner must make available a model notice to provide to workers. As a result, employees may be eligible to take as much as 24 weeks of combined leave under the CFRA and FMLA depending on the reason for the leave. This law: Requires employers to notify employees who may have been exposed to COVID-19 and to report workplace outbreaks to the local health department. Save Time and Register Online. Employees are entitled to recover $100 for each initial violation for failure to pay each employee, and each subseq… Amended Section 1205 goes further to expressly address local laws that relate to the payment of wages, and authorizes local jurisdictions to enforce such laws, so long as they are more stringent than state law. Posted by onepoint-admin on Dec 17, 2020 9:51:46 AM Tweet; This fall, the California legislature responded to the COVID-19 pandemic with several new laws that impact employers from workers' compensation, paid sick leave/Leaves of absence and workplace safety. AB 5 codified and expanded the scope of the “ABC” test established in Dynamex. An employer must retain a record of the written notice for at least three years. An “outbreak” exists if one of the following occurs within a period of 14 days at a specific place of employment: When a presumption is applicable under this section, an employer has only 45 days after the claim form is filed to deny the claim (as opposed to the typical 90 days) and otherwise may only rebut the presumption with evidence obtained after that 45 day period. non-government entity) California employers with 100 or more employees that are required to file an annual, federal Employer Information Report (EEO-1). Arbitration Arbitration Agreements as a Condition of Employment (AB 51). The specific place of employment is ordered closed by a local health department, the State Department of Health, the Division of Occupational Safety and Health, or a school superintendent due to the risk of infection of COVID-19. Stephanie has successfully represented high-profile clients and examined key fact witnesses at trial; defended depositions of fact and expert witnesses; briefed and prepared arguments in connection with a variety of motions and trial briefs; and prepared fact and expert witnesses for trial. 31, 2021, and annually thereafter (if the employer is required to file an annual Employer Information Report under federal law). The first category mirrors the federal EEO-1 and requires employers to report the number of employees by race, ethnicity, and gender in 10 federally identified job categories: executive or senior-level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers. personal service, email, or text message) and that is typically used for communicating with the employee. SB 1159 effectively requires employers to promptly investigate and address cases of COVID-19 among employees. Entertainment/Music Industry Exemptions: AB 2257 also creates several new entertainment industry exemptions, which are largely focused on the music industry. The strict three-part “ABC” test still applies when determining whether a California worker can be classified as an independent contractor unless there is an exemption, in which case the more lenient Borello test would be used. Notably, AB 2257 also grants district attorneys the ability to file injunctive relief actions against businesses suspected of misclassifying employees as independent contractors. Second, AB 2143 expands upon this “no-rehire” exception such that no re-hire provisions are allowed when the former employee engaged in “any criminal conduct,” (i.e., no longer limited to sexual harassment or sexual assault). In this article, we highlight some of these new changes that may affect your business: AB 5: Employee v. Independent Contractor: Enter the ABC Test. AB 5 also exempted certain occupations, industries, and contractual relationships from the “ABC” test, and continued to allow those hiring entities to use the less-stringent, pre-Dynamex test established in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. It also requires companies to develop anti-discrimination and sexual harassment policies; training programs for drivers related to driving, traffic, accident avoidance, and training programs recognizing and reporting sexual assault and misconduct. © Allen Matkins var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising. As of January 1, 2021, AB 1947 makes two significant changes to existing laws: (1) revising Labor Code section 98.7 to increase the time to file a complaint with the Division of Labor Standards Enforcement from six months to one year; and (2) authorizing courts to award reasonable attorneys’ fees to plaintiffs who bring successful retaliation claims under Labor Code section 1102.5. An employer must retain a record of the written notice for at least three years. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. However, there are no other carve-outs. (iv) operates a business in the same industry as the judgment debtor and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor. The notice must include the date of the positive test, the address of the employee’s place of employment during the 14-day period preceding the test, and the highest number of employees who worked at the employee’s place of employment in the 45 days preceding the last day the employee worked at each location. AB 5 also exempted certain occupations, industries, and contractual relationships from the “ABC” test, and continued to allow those hiring entities to use the less-stringent, pre-Dynamex test established in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). Second, AB 2143 expands upon this “no-rehire” exception such that no re-hire provisions are allowed when the former employee engaged in “any criminal conduct,” (i.e., no longer limited to sexual harassment or sexual assault). Indeed, cases have been brought by California truckers, freelance journalists, and gig economy businesses challenging the application of AB 5 to their industries and the constitutionality of the law itself. Build a Morning News Brief: Easy, No Clutter, Free! California’s Division of Occupational Safety and Health, better known as “Cal/OSHA,” recently issued new emergency temporary standards to protect workers from COVID-19 (the “Emergency Temporary Standards”), which were approved by the Office of Administrative Law earlier this week. Think Twice Before Signing an Outsourcing Agreement! The notice can be provided in any manner that is likely to be received (e.g. Restrictions on Venue in Hatch-Waxman Litigation, Québec Enters a New Lockdown Over the Holiday Season, The CFTC’s Approach to Virtual Currencies. Visit AB 5 – Employment Status to learn how it impacts you. In a Busy Year of Health Care Antitrust Enforcement, DOJ’s First... California Expands the California Family Rights Act (CFRA). Current law, however, does not provide for recovery of attorneys’ fees. It also requires companies to develop anti-discrimination and sexual harassment policies; training programs for drivers related to driving, traffic, accident avoidance, and training programs recognizing and reporting sexual assault and misconduct. Aimed at addressing pay inequities based on gender, race, and ethnicity, the bill requires California employers who have 100 or more employees, and who are required to file an annual Employer Information Report (EEO-1) under federal law, to submit an annual report containing two categories of information. Specifically, § 1102.5 prohibits employers from retaliating against an employee for: Under existing law, the consequences of a violation were already significant, but are increased with this amendment. It does not extend to areas which the individual did not enter. Failure to understand and adapt to the changes in worker classification law can expose California employers to significant risk, including the collection of unpaid wages and back taxes, civil penalties, and civil (and potentially class action) litigation. Larger employers previously covered by the CFRA and smaller employers complying with CFRA for the first time should take note of the change to the definition of “family members,” which now includes a child, parent, grandparent, sibling, spouse, or domestic partner.  This expanded definition of the term “family member” is important because it is broader than the definition under the federal Family and Medical Leave Act (FMLA). The National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. Specifically, AB 3075 adds Section 200.3 to the Labor Code and provides that a "successor" to a judgment debtor will be liable for any "wages, damages, and penalties owed to any of the judgment debtor's former workforce pursuant to a final judgment, after the time to appeal therefrom has expired and for which no appeal therefrom is pending.". Finally, this bill amends Labor Code Section 1205, which currently states that local jurisdictions are not precluded from enforcing their own local labor laws that are more stringent than state law. Employers with multiple establishments must submit a consolidated report that includes all employees as well as a separate report for each establishment. personal service, email, or text message) and that is typically used for communicating with the employee. Due to this classification, California’s employment and labor laws (and protections) do not apply to app-based drivers.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.Â. This new law has been challenged as being preempted by the Federal Arbitration Act (FAA), and section 432.6 is currently enjoined from being enforced. It does not extend to areas which the individual did not enter. Professional Services Exemption: AB 2257 expands the professional services exemption set forth under AB 5 for still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists who had more than 35 submissions in a year. It should be read in conjunction with AB 685, which implements various notice requirements for cases of COVID-19 in the workplace. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). Under AB 5 only the Attorney General and certain city attorneys were able to seek such relief. If the DFEH does not receive the required report from an employer, the Department may seek an order requiring the employer to comply with these requirements and shall be entitled to recover the costs associated with seeking the order. Employers may be subject to citations and/or penalties for failure to comply with these requirements. Nancy S. Fong, Peter A. Griffin, Baldwin J. Lee, Jennie L. Lee, Alexander Nestor, Annette M. Rittmuller, Nicholas J. Schuchert, Alana Thorbourne Carlyle, Amy Wintersheimer Findley, Melissa K. Zonne contributed to this article.Â. An employer has only 30 days after the claim form is filed to deny the claim (as opposed to the typical 90 days) and otherwise may rebut the presumption only with evidence obtained after that 30-day period. refusing to participate in an activity that would result in a violation of state or federal statute, or violation of or noncompliance with a local, state, or federal rule, or regulation. The strict three-part “ABC” test still applies when determining whether a California worker can be classified as an independent contractor unless there is an exemption, in which case the more lenient Borello test would be used. She focuses her practice on complex commercial disputes, business litigation matters, and labor & employment litigation. The law does not specify whether this figure is limited to California employees or includes employees outside of California. The bill seeks to prevent employers from evading unpaid wage and hour judgments by discontinuing the judgment debtor entity, only to form a new business entity that is substantially similar to the prior entity. We make complicated laws, court cases and other issues relevant to California employers easier to understand and apply to your business by simplifying them and … The new law prohibits employers from requiring any applicant for employment or any employee … Click here to read more about how we use cookies. Any employee may file a workers’ compensation claim for COVID-19 with causation to be determined in due course. This bill applies to dates of injury after July 5, 2020, and will be in effect until January 1, 2023. 2021 Labor & Employment Law Update for California Employers Thursday, December 10, 2020 2020 has been an unprecedented year in many ways, but … Due to this classification, California’s employment and labor laws (and protections) do not apply to app-based drivers. California’s new law creates a pay data reporting obligation for private (i.e. Provide written notice to the potentially exposed employees, their exclusive representative (if any), and the employers of any exposed subcontracted employees that includes the following: Four employees test positive (if the employer has 100 or fewer employees); Four percent of the number of employees who reported to the worksite test positive (if the employer has 100 or more employees); or. Is There No Protection For The Innocent When A Corporation Transfers... Election 2020 Putting Cannabis Center Stage. Second, it creates a presumption of compensability for employees (a) whose employers have five or more employees; (b) who test positive within 14 days of a workday occurring at a worksite that is not their home (unless a caregiver); and (c) who test positive during an “outbreak” at their workplace. New California Employment Laws – The following is a description of most of the more impactful (but not all) new employment laws that unless otherwise stated, went into effect on 1/1/19: Minimum Wage and Exemptions – Although SB 3 passed in 2016, effective 1/1/19, we had our next scheduled minimum wage increase. Have UK Insolvency Practitioners Lost the Protection of Release Clauses. Since the CFRA provides time off for employees to care for a wider group of family members than the FMLA, CFRA leave will not always run concurrently with FMLA leave. When notice is received, an employer must: Determine which employees, including subcontracted employees, were at the worksite at the same time as the individual during his or her “infectious period,” which the California State Department has determined includes “at minimum, the 48 hours before the individual developed symptoms.”  The “worksite” is limited to the same building or location where the individual was physically present. On September 17, 2020, Governor Newsom signed into law SB 1159, which codified parts of his prior executive order establishing a rebuttable presumption of compensability for some employees who receive a COVID-19 diagnosis. This requirement is not operative until January 1, 2022, unless the Secretary of State implements "California Business Connect" (the Secretary of State's anticipated online portal that automates all paper-based processes) sooner. It must be in English as well as the language understood by the majority of the employees. 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