2021 BRINGS NEW EMPLOYMENT LAWS

Posted: December 17, 2020 |

AB 685 - COVID-19 Written Notice Requirements

Assembly Bill 685 expands Cal/OSHA’s authority for workplaces that pose a risk of an “imminent hazard” relating to COVID-19 and requires employers to provide “written” notice to employees who may have been exposed to COVID-19 and inform local public health officials of “outbreaks.” Some key highlights of the new law provide that if an employer or representative of the employer receives a notice of potential exposure to COVID-19 as defined in the law, the employer must take certain actions within one business day of the notice of potential exposure, including but not limited to: (1) providing a written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period that they may have been exposed to COVID-19; (2) providing all employees who may have been exposed and the exclusive representative, if any, with information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws; and (3) notifying all employees, and the employers of subcontracted employees and the exclusive representative, if any, on the disinfection and safety plan that the employer plans to implement and complete per the guidelines of the federal Centers for Disease Control. AB 685 also requires that if an employer or representative of the employer is notified of the number of cases that meet the definition of a COVID-19 outbreak, as defined by the State Department of Public Health, within 48 hours, the employer must notify the local public health agency and provide certain information.

AB 979 – Representation on Corporate Boards

Publicly held corporations must begin to diversify their boards beginning in 2021 or face substantial fines. Assembly Bill 979 requires publicly held corporations headquartered in California to have a minimum of one director from an “underrepresented community” no later than the close of the 2021 calendar year. By December 31, 2022, a corporate board with four to nine directors must have two directors from underrepresented communities, and a board with nine or more directors must have three directors from underrepresented communities. 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.” By March 1, 2022, the California Secretary of State will publish an annual report that documents compliance with this new diversification requirement. A company that fails to timely comply with diversification will be fined $100,000 for the first violation and $300,000 for each subsequent violation.

AB – 1281 California Consumer Privacy Act

Assembly Bill 1281 extends the employee data exemptions that were passed in last year’s Assembly Bill 25. Under Assembly Bill 25 and now Assembly Bill 1281, employee personal information is exempt from most requirements of California’s Consumer Privacy Act (“CCPA”) until January 1, 2022. Until 2022 an individual does not have a right under the CCPA to request that a business delete an individual’s personal information if that information was collected because the individual was a job applicant to, or an employee, owner, director, officer, or contractor of the business. This exemption is designed to carve-out employee data that is collected by a business for employment relationship purposes. Businesses are still required to comply with many other substantial portions of the CCPA, such as the requirement to provide written notice to applicants and employees of the personal information they collect and the purposes for which that information is used.

AB 1512 – Security Officer Rest Breaks

Assembly Bill 1512 creates an exception to the general rule governing employee rest breaks. Normally, employers are required to provide their employees an opportunity to take a 10-minute duty-free rest break for each major fraction of four hours worked by the employee. This new law alters the provisions of Labor Code section 226.7 for registered private security officers and provides that security officers can be on-call during their rest breaks and if called upon to act during a rest break, can be required to immediately respond. This new law alters prior decisions that found that security officers required to be on-call were not provided with true duty-free rest breaks. Employers are now required to provide another 10-minute rest break to the officer if the rest break is interrupted. If the officer is not provided with all required uninterrupted rest breaks, the employer must provide an hour of premium pay as with all other employees. The exception is set to expire on January 1, 2027.

AB 1947 – Extended Filing Period for Division of Labor Standards Enforcement Claims

Assembly Bill 1947 extends the time limit for an employee to make a complaint of discrimination or retaliation with the California Labor Commissioner. Employees previously had six months to make a complaint to the Labor Commissioner asserting that an employee had been terminated or retaliated against in violation of the California Labor Code. This bill alters the deadline provided for in Labor Code section 98.7 and allows employees to report wrongful conduct for up to one year after the conduct. The Labor Commissioner, after receiving the complaint, is then provided up to three years to investigate and determine whether to take action, including potential litigation against an employer. The new law alters the provisions of Labor Code section 1102.5 by allowing employees who file a lawsuit alleging retaliation for reporting of alleged wrongful conduct to receive an award of attorneys’ fees if they prevail in a lawsuit against their employer. 

AB 1963 – Human Resources Professional as Mandated Reporter

California Penal Code section 11165.7 adds “human resource employee” of a business with five or more employees who employs minors, to the definition of “mandated reported” under the Child Abuse and Neglect Reporting Act. A human resource employee is defined as an employee designated to accept complaints of misconduct under California’s Fair Employment and Housing Act. The law also identifies as mandated reporters of sexual abuse, front-line supervisors who work for employers with five or more employees, if the supervisors’ duties require direct contact with, and supervision of, minors. Failure to report known or reasonably suspected child abuse or neglect subjects the human resources employee and other mandated reporters to a misdemeanor for failure to report, punishable by up to six months in county jail plus a fine of up to $1,000, or both. Employers subject to the law are also required to provide training to employees who have reporting duties. 

AB 2017 – Employee Sick Leave/Kin Care

Existing law requires employers to permit an employee to use paid sick leave to attend to the illness of a family member and prohibits an employer from denying an employee the right to use paid sick leave or take discriminatory action against an employee for using or attempting to use sick leave to attend to such an illness. Assembly Bill 2017 now clarifies that the employee may solely designate which type of sick leave is used when taking a sick day.

AB 2143 – No Rehire Provisions in Settlement Agreements

As of 2019 the California Legislature enacted Labor Code section 1002.5, which created a general prohibition against the use of provisions not to rehire employees in settlement agreements. The original version of the section 1002.5 had only a limited exception for employers who had previously made a good-faith determination that the employee had engaged in sexual harassment or sexual assault. This bill alters section 1002.5 to provide a wider exception to the general rule and allows employers to utilize no rehire provisions if the employee engaged in any criminal conduct. If so, the employer can include a no rehire provision in a settlement agreement. Additionally, the revised section 1002.5 provides that an employee can only bring an action claiming that the employer wrongfully included a no rehire provision if the original claim against the employer was brought in good faith.

AB 2257 – Independent Contractor Classification

AB 2257 went into effect when it was signed on September 4, 2020. It did not change the ABC test, but it made revisions and clarifications to some existing exceptions to the ABC Test and added new ones. The overall framework for AB 5 remains intact and the ABC test still applies in many circumstances when determining how to classify a worker as an employee or an independent contractor. However, AB 2257 did recast some of the requirements for certain exemptions, including but not limited to, the professional services, referral agency, and business-to-business exemptions. Additional information can be found on our earlier blog.

AB 2399 – Expansion of Paid Family Benefits for Military Exigencies

Under California’s Paid Family Leave law, employees will now be eligible to receive wage replacement benefits in connection with a qualifying exigency related to a “military member,” defined to include an employee’s child, spouse, domestic partner, or the parent of an employee where the military member is on covered active duty or is called to active duty in the U.S. Armed Forces.

AB 2992 – Expanded Protections for Crime or Abuse Victims

Assembly Bill 2992 prohibits an employer from “discharging, or discriminating or retaliating against, an employee who is a victim of crime or abuse, for taking time off from work to obtain or attempt to obtain relief.” As a result of this law, protected leave must be provided to employees who are victims of domestic violence, sexual assault, or stalking, and other crimes or offenses that caused physical injury, mental injury, or a threat of physical injury to the employee. Protected leave is also required for an employee “whose immediate family member is deceased as a direct result of a crime.” 

AB 3075 – Successor Liability

Labor Code section 200.3 addresses the liability of successor entities for judgments issued against predecessors. It consists of a four-part analysis to determine whether an employer is a successor to a prior employer. The factors include whether the work is performed in the same location, whether the workforce is substantially the same, whether the owners and managers are substantially the same, whether there is a managing agent who previously served in that role for the predecessor, and whether the business is in the same industry with a relative of the judgment debtor. This new law also includes obligations that will be in place no later than January 1, 2022 requiring entities to disclose whether officers and directors of corporations and any members or managers of limited liability companies have outstanding judgments against them for unpaid wage claims. The new law also allows for local jurisdictions to impose labor standards that are stricter than those provided for by either the federal government or the State of California. 

SB 973 – DFEH Pay Data Reporting

On or before March 31, 2021, and annually thereafter, private employers with 100 or more employees must file an annual Employer Information Report, submitting certain pay data to the Department of Fair Employment and Housing. The report includes pay and hours-worked data by job category and by sex, race, and ethnicity. Additional information can be found on the DFEH website here. Additional information about this requirement can be found on our earlier blog here.

SB 1159 - Workers’ Compensation Liability for COVID-19

Senate Bill 1159 extended and expanded the Governor’s prior Executive Order N-62-20 creating a COVID-19 disputable presumption of eligibility for workers’ compensation benefits if certain criteria are met. For example, the presumption now exists for employees who suffer illness or death resulting from COVID-19, subject to certain conditions, on or after July 6, 2020 through January 1, 2023. The new law requires employers with five or more employees, who know or reasonably should know that an employee has tested positive for COVID-19, to report to their claims administrator in writing via electronic mail or fax within three business days. SB 1159 also creates an “outbreak” presumption for employers with five or more employees if certain conditions are met, covering workers who test positive for COVID-19 during an “outbreak” at the employee’s place of employment. Employers may controvert the presumption with evidence, which may include evidence of measures in place to reduce potential transmission of COVID-19 in the employee’s place of employment and evidence of an employee’s nonoccupational risks of COVID-19.

SB 1383 – Expansion of California Family Rights Act (CFRA)

This new law expands the CFRA to require employers with five or more employees to provide up to 12 workweeks of unpaid protected leave during any 12-month period to an eligible employee (1) to bond with a new child, (2) to care for themselves, a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner, or (3) because of a qualifying exigency or call related to covered active duty of an employee’s spouse, domestic partner, child or parent in the U.S. Armed Forces. The new legislation also expands employee leave rights for employers with 50 or more employees. It broadens the definition of “family members” beyond what is covered under the federal Family and Medical Leave Act (FMLA), which may require large employers to administer leave under the CFRA and the Family Medical Leave Act (FMLA) separately, for the same employee. For additional information about the expanded CFRA, you may read our blog here.

SB 1384 – Expansion of Labor Commissioner Representation in Arbitrations

Senate Bill 1384 expands the authority of the Labor Commissioner to represent individuals claiming they have not been paid properly. The bill alters Labor Code section 98.4, which allows the Labor Commissioner to represent claimants when there is a judicial appeal following the Labor Commissioner’s findings in favor of a claimant. Labor Code section 98.4 allows the Labor Commissioner to represent a claimant in those circumstances where an order compelling arbitration removes the matter from hearing before the Labor Commissioner. The Labor Commissioner may now represent claimants in arbitration proceedings who cannot afford counsel if the Labor Commissioner reviews the claim and determines that it has merit. 

Government Code section 12950.1 – Sexual Harassment Prevention Training

No later than December 31, 2020, all employers with five or more employees must provide employees with sexual harassment prevention training. Employees who hold non-managerial positions must be provided one hour of training while employees who hold managerial positions must be provided two hours of training. Employees hired on or after January 1, 2021 must be trained within six months of hire. Employees who assume a supervisory position must be provided managerial sexual harassment prevention training within six months of assuming their supervisory position. After employees receive their initial training they must be retrained once every two years. The California Department of Fair Employment and Housing has created an online training course that can be found here. Because the time spent to complete the training is considered work time, employees must be paid for all time spent in the training.

If you have questions about how any of these new laws may affect your business, please contact any of the employment attorneys at Ferruzzo & Ferruzzo, LLP.

This blog is not meant to provide specific legal advice. For advice specific to your business, please contact any of the employment attorneys in our Employment Practices Group who are ready to assist you.

Colleen M. McCarthy

Colleen M. McCarthy, Esq. is a Partner and chairs the Firm’s Employment Practices Group. She has dedicated her practice to representing and protecting employers, with a particular emphasis on risk mitigation through preventative counseling and sound practical advice. For almost 20 years, Colleen McCarthy has counseled employers about the complicated employment laws that impact their businesses to ensure that they are in compliance, and to reduce the chance of costly litigation. Colleen McCarthy may be reached by phone at (949) 608-6900 or email cmccarthy@ferruzzo.com.