Employer Alert: New California Employment Laws
The deadline has passed for Governor Newsom to sign new laws into effect, which means we now know which new laws will be impacting California employers. Employers should be aware that some of these new laws go into effect immediately, while others become effective January 1, 2021, as follows:
Employment Laws Taking Effect Immediately:
Senate Bill 1159 creates a rebuttable presumption that certain workers contracting COVID-19 were infected on the job and would qualify for Workers Compensation under certain conditions. SB 1159 is set to expire on January 1, 2023. See our post about it here.
Assembly Bill 1867 provides COVID-19-related supplemental sick leave for food sector employees, employees of larger employers (500 or more employees) and first responders and health care employees not covered by federal law sick leave. These sick leave benefits expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the federal Families First Coronavirus Response Act, whichever is later. AB 1867 also establishes more frequent handwashing breaks for food sector employees. See our post about it here.
Assembly Bill 1577 excludes Paycheck Protection Program loans that were forgiven through the federal CARES Act from state tax liability.
Assembly Bill 2257 substantially modifies AB 5 by revising exemptions to the strict ABC test to make it easier for several categories of professions to work as independent contractors if certain conditions are met. The bill also removes a requirement that forced many individuals contracting as a business to form partnerships, limited liability companies, or corporations rather than act as sole proprietors. Further, the bill removes an important restriction that essentially made it impossible for a business to hire a subcontractor to deliver services to its customers. See our post about it here.
Assembly Bill 1512 provides certain security officers may be required to remain on the premises, be on call and carry and monitor a communication device during rest periods. AB 1512 permits a restart of a rest period as soon as practicable if the rest period is interrupted. The new law also provides a penalty be paid to these employees if at least a 10-minute uninterrupted rest period per every 4 hour’s work (or major fraction thereof) is not permitted. AB 1512 does not apply to cases filed before January 1, 2021 and will expire on January 1, 2027.
Senate Bill 1447 provides a $100 million hiring tax credit program for qualified small businesses.
Assembly Bill 276 raises the amount employees can borrow from their employer-sponsored retirement accounts from $50,000 to $100,00, if impacted financially by COVID-19.
Assembly Bill 1876 expands California’s Earned Income Tax Credit.
Assembly Bill 2043 requires Cal-OSHA to compile and report investigations of agricultural workplaces for COVID-19-related conditions and illness outbreaks.
Laws Taking Effect on January 1, 2021:
Assembly Bill 685 creates new COVID-19 reporting requirements for employers, increases mandatory public disclosure of COVID-19 outbreaks, and expands the powers of Cal/OSHA to cite and shut down employers with worksite infections in a streamlined process. This law expires on January 1, 2023. See our post about AB 685 here.
Senate Bill 1383 amends the California Family Rights Act and the New Parent Leave Act to apply to employers with 5 or more employees.
Assembly Bill 2143 modifies the prohibition in Code of Civil Procedure Section 1002.5 against no-hire provisions in certain employment settlement agreements to require that the claim filed by the employee be in good faith. AB 2143 also clarifies the existing exception from the prohibition if the employer has made a good faith determination that the aggrieved person engaged in sexual harassment or sexual assault and requires that the employer document the determination of sexual assault or sexual harassment before the aggrieved person filed the claim. AB 2143 also expands the sexual assault and sexual harassment exception to the no-hire provision prohibition to include a determination that the aggrieved person engaged in any criminal conduct.
Senate Bill 973 requires employers with 100 or more employees to report pay data by race, ethnicity, and gender. This bill also authorizes the Department of Fair Employment and Housing to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices unlawful under discriminatory wage rate provisions.
Assembly Bill 3075 requires new corporations to attest to owner, director, or officer judgments for wage and hour violations. This new law also permits local jurisdictions to enforce state wage standards and impose successor employer liability for wage and hour violations.
Assembly Bill 2992 amends existing protections for employees who are victims of domestic violence, sexual assault, or stalking, relating to taking time off from work to obtain or attempt to obtain relief to help ensure the health, safety, or welfare of the victim or victim’s children. In particular, the law will now provide job-protected time off under a more expansive definition of crimes and abuse for victims and their immediate families.
Assembly Bill 979 improves upon existing law which requires public companies with executive offices in California to appoint female members to their boards of directors by no later than the end of 2021 by imposing an additional requirement that members be added from underrepresented communities.
Assembly Bill 2588 provides that employers are responsible for the expense or cost of certain employer-provided or employer-required educational programs or training for direct patient care acute care hospital employees or applicants.
Assembly Bill 2399 amends the paid family leave law with respect to a qualifying exigency for a military member.
Assembly Bill 323 extends to January 1, 2022 the exemption to the ABC independent contractor test for newspaper carriers and deletes the condition that a newspaper carrier work under contract either with a newspaper publisher or newspaper distributor.
Assembly Bill 2479 extends the exemption from the rest period requirements for employees holding certain safety-sensitive positions in petroleum facilities.
Assembly Bill 1947 extends the deadline to file a Division of Labor Standards Enforcement complaint from six months to one year after the occurrence of the violation. In addition, AB 1947 permits an award of attorneys’ fees to claimants to prevail on claims for retaliation or against employers who attempt to prevent employees from disclosing information to certain entities or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry if the employee has reasonable cause to believe that the information discloses a violation of a law.
Assembly Bill 1281 allows continuation of the exemption for employee or employment applicant personal information from the Consumer Privacy Act requirements by extending the expiration of the exemption from January 1, 2021 to January 1, 2022. AB 1281 also continues to allow businesses to collect and use a person’s information within the context of that person’s role or former role at the business. However, if Proposition 24 (the Consumer Personal Information Law ans Agency Initiative) is passed by voters at the polls on November 3, 2020, AB 1281 becomes inoperative and the employee exemption will expire instead on January 1, 2023.
Additional Developments:
The United States Department of Labor issued new model COBRA notices that include the option to enroll in Medicare instead of COBRA continuation of the group health plan. The new model notices also point out the possible advantage of enrolling in Medicare before or instead of electing COBRA. The new notices can be found here.
The United States Department of Labor and the Internal Revenue Service extended certain COBRA participant deadlines, but not employer notice requirements. It would be advisable, but not mandatory, to include notice of these extensions when providing COBRA election notices. The joint announcement does not specifically allow employers extended time to send COBRA notices to terminating employees. Thus, employers should therefore continue to send COBRA notices to terminated employees based on the usual time frames. The joint announcement may be found here.
The United States Department of Labor also issued new, revised model Family and Medical Leave Act (FMLA) forms and notices. The new FMLA forms and notices are intended to be more streamlined and convenient, and they include more explanatory language on various FMLA rights and requirements. As the new FMLA forms are optional and no specific form or format is required, employers may continue to use prior FMLA forms. The new FMLA forms may be found here.
The author would like to gratefully acknowledge the assistance of Joanne Warriner.
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