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. 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. This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. 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. 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. Labor & Employment Law Section Executive Committee 2014-2015; Cases Pending Before the California Supreme Court; Masthead; Nlra Case Notes; The Interactive Process Dance: What Happens When the Music Stops? Attorney Advertising Notice: Prior results do not guarantee a similar outcome. The following update provides a brief overview of select legislation that will immediately affect California employers. AB 3075, effective January 1, 2021, makes it easier for workers to enforce judgments for unpaid wages by making certain successor businesses liable for their predecessor’s unpaid wage and hour judgments. The minimum wage in California varies depending on the size of the employer. (i) uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (ii) has substantially the same owners or managers that control the labor relations as the judgment debtor; (iii) employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor; and. California’s new law creates a pay data reporting obligation for private (i.e. In support of the above, AB 3075 also requires that certain business entities verify in their Statement of Information filed with the Secretary of State, whether any officer, director, or any member or manager of a limited liability company has an outstanding final judgment in any court or issued by the Division of Labor Standards Enforcement. California s Governor recently finished signing into law many new employment-related bills, some that have already gone into effect and others going into effect on January 1, 2021. The notice can be provided in any manner that is likely to be received (e.g. However, the new CFRA (SB 1383) expands the scope and requires compliance employers with five or more employees and also eliminates the requirement that employees work within 75 miles of the same worksite. Under existing law, individuals have six months to make complaints to the DLSE. 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). Section 200.3 defines a "successor" entity as one that: (i) uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (ii) has substantially the same owners or managers that control the labor relations as the judgment debtor; (iii) employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor; and. The law does not specify whether this figure is limited to California employees or includes employees outside of California. This exemption now includes services provided by a still photographer, photojournalist, videographer, or photo editor who works under a written contract that specifies the rate of pay and time of payment. 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. 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). 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. AB 5 codified and expanded the scope of the “ABC” test established in Dynamex. 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. Employers with multiple establishments must submit a consolidated report that includes all employees as well as a separate report for each establishment. AB 2257 also removes the submission requirement which allows for more workers to fall under this exemption. For California employers, 2020 carries a whole set of new legal obligations. Current law, however, does not provide for recovery of attorneys’ fees. 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. 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. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials. 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. State-by-State Real-Time Updates on Employment and Privacy-Related Rules, Regulations, Orders and Guidance; California Expands Jury Rolls; California Expands Its Already Generous Leave Requirements To Cover Even Smaller Employers; California Mandates Diversity Quotas for Corporate Boards; September 2020 California Employment Law Notes 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. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. 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. AB 2257 expressly repeals Labor Code Section 2750.3 (AB 5) and codifies sections 2775-85 of the Labor Code. Under Labor Code section 98.7, the Division of Labor Standards Enforcement (DLSE) has jurisdiction to investigate complaints of discharge or discrimination in violation of any law within the jurisdiction of the DLSE. Currently, California businesses with 50 or more employees must provide eligible workers with up to 12 weeks of job-protected, unpaid leave under CFRA and … Proposition 22 defined app-based transportation and delivery drivers as independent contractors and adopted certain labor and wage policies specific to app-based drivers and companies. 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. Stephanie has experience in antitrust, commercial contracts, franchise law, labor and employment, and... You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. 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. Entertainment/Music Industry Exemptions: AB 2257 also creates several new entertainment industry exemptions, which are largely focused on the music industry. The strict three-prong “ABC” test presumes that all workers are employees, and places the burden on the hiring business to establish the following factors in order to classify a worker as an independent contractor: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. An employer must retain a record of the written notice for at least three years. 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. The ballot initiative also includes zero-tolerance policies for driving under the influence of drugs or alcohol, and requires criminal background checks for drivers. Under Labor Code section 98.7, the Division of Labor Standards Enforcement (DLSE) has jurisdiction to investigate complaints of discharge or discrimination in violation of any law within the jurisdiction of the DLSE. 2020 has been an unprecedented year in many ways, but one thing that remains constant is the legislature's enactment of new laws that impact employers. Starting January 1, 2021, AB 1947 extends this time period for filing a complaint to one year. This bill applies to dates of injury after July 5, 2020, and will be in effect until January 1, 2023. Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter. 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). 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. Think Twice Before Signing an Outsourcing Agreement! 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. 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: That they may have been exposed to COVID-19; What COVID-19 related benefits are available to them under law; Anti-retaliation and anti-discrimination protections; and. CFRA no longer has a provision permitting employers to provide fewer than 12 weeks for leave in connection with the birth, adoption, or foster care placement of a child if both parents work for the same employer. 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. What COVID-19 related benefits are available to them under law; c. Anti-retaliation and anti-discrimination protections; and. 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. The only exception is where an employer has made a “good faith determination” that the former employee engaged in sexual harassment or sexual assault. First, it creates a presumption of compensability for certain first responders and healthcare workers (listed in Labor Code § 3212.87) who test positive for COVID-19 within 14 days of a workday occurring at a worksite that is not their home. In addition, employers are no longer permitted to refuse reinstatement to salaried employees who are among the highest 10% of the employees at the company and where the refusal is necessary to prevent substantial and grievous economic injury. She focuses her practice on complex commercial disputes, business litigation matters, and labor & employment litigation. Accordingly, hiring businesses who wanted to classify a worker as an independent contractor had the burden of establishing that the worker either (1) fell under one of the exemptions set forth in AB 5; or (2) could meet each element of the stringent “ABC” test, set forth in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. California’s worker classification laws are rapidly developing and businesses operating in California must understand and adapt to these developments, in order to fit their workers into this ever-changing classification scheme. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). 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. On September 30, 2020, Governor Newsom signed SB 973, which requires certain employers to collect and submit compensation data to the California Department of Fair Employment and Housing (DFEH). 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. This report must also include the total number of hours worked by each employee in each pay band during the reporting year. Shortly before Thanksgiving, California's Department of Industrial Relations Occupational Safety & Health Standards Board adopted a general safety order that creates an … However, the core of AB 5 remains unchanged. Patrick Zika in the Alameda County Superior Court. In addition, employers are prohibited from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from such disclosures or participation. 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. Ranging from Covid-19 legislation to revisions to worker classification laws, new reporting requirements, and mandatory additions to boards of directors, below you will find our annual 2021 Employment Law Update. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. 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. California and the federal government are providing broad assistance to small businesses and employers impacted by COVID-19. Read more in last year's alert. Miscellaneous Exemptions: Subject to certain requirements, AB 2257 also adds exemptions for individuals engaged in underwriting inspections and other services for the insurance industry; manufactured housing salespersons; certain individuals engaged by international exchange visitor programs; and competition judges. 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. ; Requires the California Department of Public Health (CDPH) to publicly report information on workplace … AB 2257 expressly repeals Labor Code Section 2750.3 (AB 5) and codifies sections 2775-85 of the Labor Code. California’s worker classification laws are rapidly developing and businesses operating in California must understand and adapt to these developments, in order to fit their workers into this ever-changing classification scheme. An employer must retain a record of the written notice for at least three years. 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. 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 provision is not to be used in a manner that would interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water. In response, Uber, Lyft, DoorDash, InstaCart, and Postmates spent more than $200 million in lobbying efforts for a ballot initiative that would override AB 5 and AB 2257, and classify drivers as independent contractors. In addition to the above, as of January 1, 2021, employers will have reporting requirements if they are notified that the number of cases at their worksite meets the definition of a “COVID-19 Outbreak” as defined by the State Department of Public Health.  When an employer has been notified that it has an “outbreak,” it will have 48 hours to provide the information listed below to the local public health agency in the jurisdiction of the worksite for any employee that 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. Payroll tax account number is issued within a few minutes an opportunity to respond to establish of! Of California your interest in updating your company information Busy year of Health Care Antitrust,. 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