Several important new California employment laws have been passed in 2020. With exceptions as noted, the laws described below take effect on January 1, 2021.
AB 1867—Supplemental Paid Sick Leave, Handwashing, & Small Employer Family Leave Mediation
While not strictly a “2021 law,” AB 1867 (effective September 9, 2020) is likely to continue into 2021.
The Federal Families First Coronavirus Relief Act (FFCRA), which became effective on April 1, 2020, provides COVID-19-related paid sick-leave and paid family-leave benefits to eligible workers of employers with under 500 employees.
AB 1867, a California law that went into effect on September 9, 2020, is designed to provide similar protections to employees of private employers who have 500 or more employee nationwide (as well as certain health care providers and emergency responders). It also codifies the Food Sector Worker Leave, which was previously mandated by Governor Newsom’s Executive Order.
AB 1867 creates two new Labor Code sections: 248 (food service workers) and 248.1 (covered workers), and also amends Labor Code Section 248.5 (enforcement procedures).
AB 1867 requires that, no later than September 19, 2020 up to 80 hours of COVID-19 supplemental paid sick leave be provided for non-food sector covered workers unable to work because they are (1) subject to federal, state, or local quarantine or isolation orders related to COVID-19; (2) advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; or (3) prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.
Like the case with federal law, employers are not required to pay more than $511 per day and $5,110 total to an employee for COVID-19 supplemental paid sick leave.
The law authorizes the employee to determine how many hours of COVID-19 supplemental paid sick leave to use and requires the employer to make COVID-19 supplemental paid sick leave available for immediate use upon the employee’s oral or written request. Employers are prohibited from requiring an employee to use any other paid or unpaid leave, paid time off, or vacation time before COVID-19 supplemental paid sick leave, or in lieu of it. The COVID-19 paid sick leave runs concurrently with other types of leave other than regular paid sick leave under Labor Code Section 246.
Available leave for non-food sector workers must be provided on wage statements or in separate writings, and covered employers are required to inform employees about the law through a posting. The California Department of Industrial Relations has published a FAQ on the enforcement program. The law expires on 12/31/2020 or upon the expiration of any federal extension of the FFCRA.
Employers should also be aware of local laws designed to provide COVID-19 paid sick leave, as covered reasons in such laws may be more expansive than state law. Localities with their own COVID-19 leaves include Emeryville, Long Beach, Los Angeles (City and County), Oakland, Sacramento (City and County), San Francisco, San Jose, San Mateo, Santa Rosa and Sonoma.
A.B. 1867 also adds Health and Safety Code section 113963 to specifically authorize food employees in any food facilities to wash their hands every 30 minutes, and more often if needed.
In addition, AB 1867 also requires the Department of Fair Employment and Housing (DFEH) to create a small employer family leave mediation pilot program for employers with five to 19 employees. The bill prohibits an employee from pursuing civil action until the mediation is complete if an employer or employee requests mediation, and tolls statute of limitations for the employee, including for additional related claims. These provisions of the bill will be repealed on January 1, 2024.
AB 685—Imminent Hazard Notice and New Cal-OSHA Regulations
AB 685 establishes standards for employers to follow in addressing potential COVID-19 exposures and outbreaks and provides Cal-OSHA with the means to protect employees from an imminent hazard due to COVID-19, including shutting down operations without providing advance notice or a chance to respond.
Among other things, the new law requires an employer who receives notice of potential COVID-19 exposure to do all of the following within one business day: (a) provide written notice to all employees and the exclusive representative of such employees, if any, and the employers of all subcontracted employees, who were onsite within the infectious period (currently 14 days, including 48 hours before the individual developed any symptoms) that they may have been exposed to COVID-19; (b) provide all employees who may have been exposed and their exclusive representative, if any, with information about all COVID-19-related benefits to which the employee may be entitled including workers’ compensation, paid sick leave, supplemental paid sick leave, state mandated leave, and anti-retaliation and anti-discrimination protections; and (c) notify all employees and the exclusive representative of such employees, if any, and the employers of all subcontracted employees, of the disinfection and safety plan the employer plans to implement and complete per Centers for Disease Control guidelines. Employers must maintain records of notifications for at least 3 years. The law imposes a civil penalty for violation of the notice requirement.
An employer must notify the local public health agency of a COVID-19 “outbreak” (currently three or more cases in a 14-day period) within 48 hours of learning of it. The employer must continue to notify the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the workplace.
These provisions will expire on January 1, 2023. Although the law itself does not make this clear, the California Department of Public Health has stated that the additional requirements of AB 685 go into effect on January 1, 2021. We discuss the recent Cal-OSHA regulations in detail here.
AB 2043—Cal-OSHA COVID-19 Awareness
AB 2043 requires Cal-OSHA to disseminate information on best practices for COVID-19 infection prevention in English and Spanish. This information should include COVID-19 awareness and prevention measures that can be easily understood by agricultural workers from a variety of ethnic and cultural backgrounds. Cal-OSHA is also tasked with compiling and reporting findings related to COVID-19 investigations of agricultural workplaces on its website. These provisions went into effect on September 28, 2020 and will expire when the state of emergency is terminated by the Governor or the Legislature.
SB 1159—Workers’ Compensation COVID-19 Presumption
SB 1159 modifies and extends Executive Order 62-20, creating a disputable presumption that a COVID-19-related illness or death is an occupational injury and therefore the employee is eligible for workers’ compensation benefits. The presumption applies if the employer has at least 5 employees, the employee tests positive within 14 days after performing work at the employer’s place of employment at the employer’s direction, the work date was July 6, 2020 or later, and the positive test occurred during a period of an “outbreak” at the employer’s place of employment. An employee’s home is not a “place of employment” for purposes of this statute.
SB 1150 went into effect as of September 17, 2020 and expires January 1, 2023.
Leaves of Absence
SB 1383—Expanded California Family Rights Act (CFRA)
The California Family Rights Act (CFRA) provides up to 12 workweeks of unpaid, job-protected leave during a 12-month period for specified family and medical reasons, including time to bond with a new child. Currently, this leave is available only to eligible employees who are employed at a location with 50 or more employees within a 75-mile radius.
SB 1383 expands CFRA coverage by requiring all employers with 5 or more employees to provide CFRA leave to eligible employees. SB 1383 retains the requirement that employees must have had 12 months or more of service and have worked at least 1,250 hours during the previous 12 months to be eligible for CFRA leave.
In addition to expanding CFRA’s coverage, SB 1383 also expands CFRA’s scope.
- Currently, the CFRA leave can be taken to care for the employee’s child (defined as minor child unless the child is an adult, dependent child), parent, or spouse who has a serious health condition, or to bond with a new child. SB 1383 provides additional reasons for the CFRA leave, including (i) to care for a grandparent, grandchild, sibling, or domestic partner who has a serious health condition, (ii) to care for an adult child and child of a domestic partner with a serious health condition, and (iii) to be with a spouse, domestic partner, child, or parent in the Armed Forces of the United States due to a qualifying exigency related to covered active duty or call to covered active duty.
- SB 1383 requires that each spouse or domestic partner employed by the same employer be provided a full 12-week CFRA bonding leave (up to a total of 24 weeks). Accordingly, beginning January 1, 2021, an employer may no longer limit co-worker spouses or domestic partners to a combined total of 12 weeks of CFRA leave to bond with a new child.
- SB 1383 eliminates the “key employee” exception, which currently allows employers to deny reinstatement to an employee who is among the highest paid 10% of the employer’s employees and who takes CFRA leave. Beginning January 1, 2021, employers will be required to reinstate all employees who return from CFRA leave.
As before, CFRA has a mandatory written policy requirement. All employers must revise their policies to comply with CFRA amendments.
SB 1383 repeals the New Parent Leave Act (Gov’t Code Section 12945.6) as duplicative of the new CFRA.
AB 3364—FEHA Protects Veteran or Military Status
AB 3364 clarifies that the Fair Employment and Housing Act (FEHA) protects military or veteran status (as opposed to veteran and military status).
AB 2017—Employee Designation of Reason for Sick Leave Use
AB 2017 clarifies that employees have the “sole discretion” to designate when they will use accrued and unused paid sick leave to care for an ill family member. Employers can no longer designate the use of paid sick leave for kin care without the employee’s consent.
AB 2992—Expanded Leave for Crime Victims
Labor Code sections 230 and 230.1 currently prohibit employers from discharging, retaliating against, or otherwise taking any adverse action against a victim of domestic violence, sexual assault, or stalking for taking time off from work 1) to obtain relief for the health and safety of themselves or their children, or 2) for employers with 25 or more employees, to obtain medical attention. AB 2992 expands the leave protections provided under sections 230 and 230.1 to victims of any violent crime, and to immediate family members of homicide victims. Employees are entitled to the leave “regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.” The new law will also allow additional reasonable forms of documentations to verify the crime has occurred.
AB 2399—Expanded Paid Family Leave Benefits for Military Exigencies
California Paid Family Leave (“PFL”) provides partial wage replacement benefits to individuals who take time off work to care for a seriously ill child, spouse, parent, or domestic partner, or to bond with a new child. In 2018, the PFL program was expanded to provide the benefits for time off to be with a family member who was being deployed on active duty in connection with a military exigency. AB 2399 expands the definition of “military member” to include a child, spouse, domestic partner, or parent of the employee, where the military member is on covered active duty or is called to active duty in the Armed Forces of the United States. The law further provides the new documentation requirement for the leave.
Diversity, Anti-Discrimination and Anti-Harassment Laws
SB 973–Pay Data Reporting
SB 973 requires that, on or before March 31, 2021, and on or before March 31 each year thereafter, certain employers submit to DFEH specified wage information tied to race, ethnicity and sex, for the prior calendar year. The law applies only to private employers with 100 or more employees who are required to file a federal EEO-1 report.
AB 979–Corporate Boardroom Diversity
AB 979 requires publicly traded companies whose principal executive offices are located in California to have a minimum number of directors from “underrepresented communities” on their board of directors. A director from an underrepresented community is defined 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.” This law models SB 826, which required publicly traded companies to place a minimum number of women on their board of directors.
By the end of calendar 2021, each publicly held corporation with principal executive offices in California must have a minimum of one director from an underrepresented community. The corporation may increase the number of directors on its board to comply with this requirement.
By the end of calendar 2022, covered corporations must comply with the following:
- If the number of directors is nine or more, the corporation must have a minimum of three directors from underrepresented communities.
- If the number of directors is between four and nine, the corporation must have a minimum of two directors from underrepresented communities.
- If the number of directors is four or fewer, the corporation must have a minimum of one director from underrepresented communities.
By March 1, 2022, the California Secretary of state is required to file a report identifying the affected corporations and reporting their compliance. Violations of AB 979 can result in fines of $100,000 for a first violation and $300,000 for any subsequent violation.
AB 3175 Clarifications to Sexual Harassment Training Requirements for Minor Actors
Under existing law, minor actors between the ages of 14 and 17 (age-eligible minors) must attend sexual harassment prevention training before they can obtain a permit to work in the entertainment industry.
AB 3175 clarifies that the minor must be accompanied by a parent or legal guardian during the training and that the parent or legal guardian must certify to the Labor Commissioner that the training has been completed. It also mandates that a foreign language translation of the training be available “whenever reasonably possible.”
This law went into effect on September 25, 2020.
AB 2143—Expanding Bases for No-Rehire Clause in Settlement Agreement
Under current law “no-rehire” clauses are prohibited in settlement agreements resolving employment disputes in which an employee has filed a complaint in court or with a government agency, except where the employer has made a good-faith determination that the former employee-complainant engaged in sexual harassment or sexual assault.
AB 2143 expands this exception to include employer determinations that the employee engaged in any criminal conduct, not just sexual harassment or sexual assault.
AB 2143 requires the employee to have filed the claim in good faith for the prohibition against a “no-rehire” clause to apply. It also requires that a documented good faith determination of sexual assault, sexual harassment or any criminal conduct be made by the employer before the employee filed the claim.
Child Abuse Reporting
AB 1963 –Additional Mandated Reporters of Child Abuse
AB 1963 makes the following employees “mandated reporters” under the Child Abuse and Neglect Reporting Act: (1) a human resources employee of a business with five or more employees that employs minors, and (2) for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with five or more employees.
The Child Abuse and Neglect Reporting Act requires that mandated reporters who, in their professional capacity or within the scope of their employment, have knowledge of or observes a child who the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect, to report the incident to certain public authorities. A mandated reporter who fails to report an incident of known or reasonably suspected child abuse or neglect is guilty of a misdemeanor that is punishable by incarceration of up to six months in county jail, a base fine of up to $1,000, or both the incarceration and the fine.
Proposition 24—Expansion of Consumer Privacy Rights; Extension of Temporary Exemption Under CCPA for HR Data
Proposition 24, or “California Privacy Rights and Enforcement Act of 2020,” (passed in the statewide election in November 2020) expands existing consumer privacy rights and creates new rights under the California Consumer Privacy Act of 2018 (“CCPA”). It also removes the ability of businesses to fix violations before being penalized for them.
Proposition 24 permits consumers to prevent businesses from sharing personal information, to correct inaccurate personal information and to limit businesses’ use of “sensitive personal information”—including precise geolocation, race, ethnicity, religion, genetic data, private communications, sexual orientation and specified health information.
It establishes California Privacy Protection Agency to additionally enforce and implement consumer privacy laws and impose fines. It authorizes civil penalties for theft of consumer login information and triples maximum penalties for violations concerning consumers under 16 years old.
Proposition 24 also changes which businesses are required to meet requirements of the CCPA and prohibits businesses from retaining personal information for longer than reasonably necessary.
Relevant for employers, Proposition 24 extends the exemption for human resources personal information from many of the CCPA’s protections until January 1, 2023. As before, however, this exemption does not excuse employers from complying with the CCPA’s pre-collection notice requirement or from data-breach protections related to HR personal information.
Wage and Hour Laws
AB 2257—Modified ABC Test for Independent Contractor Determinations
On September 7, 2020, Governor Newsom signed AB 2257 that modifies existing law regarding which workers may be classified as independent contractors. For more details, please see our blog here.
AB 1947—Expanded Retaliation Protection for Wage and Hour Complaints
Labor Code section 98.7 allows employees who believe that they suffered an adverse employment action (including termination) in violation of any provision of the Labor Code to file a complaint with the Labor Commissioner within six months after the violation. AB 1947 extends the deadline for filing a complaint to one year.
Labor Code section 1102.5 protects employees who, in good faith, have disclosed or threatened to disclose, or are believed to have disclosed, violations of law or regulations at the workplace to law enforcement, a government agency, a supervisor, or any person at the employer with authority to investigate such a violation. AB 1947 authorizes a court to award reasonable attorneys’ fees to a worker who succeeds on a retaliation claim under section 1102.5.
AB 3075–Enhanced Mechanisms to Enforce Wage and Hour Judgments
AB 3075 requires each party creating a new corporation to attest under penalty of perjury that they have no outstanding final judgments issued to them for wage and hour violations. It also provides the following factors to determine whether a company is a “successor employer” from whom a judgment may be collected: (1) whether the company uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the predecessor employer, (2)whether it has substantially the same owners or managers that control the labor relations as the predecessor employer, (3) whether it employs as a managing agent any person who directly controlled the wages, hours or working conditions of the affected workforce of the predecessor employer, or (4) whether it operates a business in the same industry 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 predecessor employer.
AB 1512–Limited Exemption from On-Duty Rest Periods for Union-Represented Security Guards
In Augustus v. ABM Security Services, Inc., 2 Cal. 5th 257 (2016), the California Supreme Court held that an employer has an affirmative obligation to relieve its employees of all work responsibilities during rest breaks. The Court held that private security guards who carried radios and were on-call during rest breaks did not get duty-free rest breaks, as required by California law.
AB 1512 amends California Labor Code section 226.7 and exempts certain union-represented security guards from the holding in Augustus. Under the new law, qualifying security officers may be required to remain on premises and on call during rest periods, including by carrying and monitoring communication devices. If the security officer’s rest period is interrupted by being “called upon to return to performing the active duties of the security officer’s post prior to completing the rest period,” the security officer must be permitted to restart his or her rest period as soon as practicable. If the security officer is not able to take a compliant rest period, the security officer must receive a premium of one hour’s of pay at the security officer’s regular hourly rate of pay.
AB 1512 does not provide a defense to rest period violation claims filed before January 1, 2021. The law is effective until January 1, 2027, unless extended.
AB 2479–Rest Break Exemption in Petroleum Facilities Extended
California Labor Code Section 226.75 provides a narrow exemption from the requirement that employees must be relieved of all duties during rest periods for union-represented employees who hold a safety-sensitive position at a petroleum facility and who must be available to respond immediately to emergencies, and therefore, must stay on the premises and carry and monitor a communication device during rest periods. AB 2479 extends this exemption to January 1, 2026.
AB 3070—Bias Elimination in Peremptory Challenges
AB 3070 prohibits use of a peremptory challenge to remove a prospective juror on the basis of actual or perceived race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation. The law establishes a presumption that certain reasons for excluding jurors are improper proxies for racial or gender discrimination and requires courts to evaluate reasons given for a peremptory challenge. Upon objection, the court must evaluate the reasons given for the peremptory challenge, and if it chooses to sustain the objection, the court may take certain actions, including but not limited to starting a new jury selection, declaring a mistrial at the request of the objecting party, seating the challenged juror, or providing another remedy as appropriate. The law takes effect on January 1, 2022 for criminal cases and will apply to civil cases in 2026.
AB 2588—Educational Programs and Training Costs for Direct Patient Care Employees
AB 2588 covers employees and applicants in direct patient care settings in general acute hospitals. It requires employers to reimburse covered employees for the costs of any employer-provided or employer-required educational program or training, including (but not limited to) residencies, orientations, or competency validations. The law prohibits employment contracts requiring training costs be paid back if an employee leaves employment. The law does not cover costs involving license requirements, registration, or certification necessary to legally practice in a specific employee classification to provide direct patient care; or education or training that is voluntarily undertaken by the employee or applicant solely at their discretion.
Employers should update their policies, handbooks and practices in accordance with these new laws to ensure compliance. We assist employers in proactively addressing compliance issues and helping them update their policies. If you are interested in discussing these issues, or have any questions about this blog, please feel free to contact us.