D Vasquez Law

Midyear Employment Law Update – 2020

While COVID-19 has been in the forefront of most legal issues for employers in 2020, a host of non-COVID legal developments have also taken place requiring California employers to take heed.  Below is a summary of some of these new laws:

Fair Employment and Housing Act Regulations

Effective July 1, 2020, the new Fair Employment and Housing Act (FEHA) regulations clarify a number of key employment practices:

·         Employers cannot request scheduling information from applicants to ascertain an applicant’s religious creed, disability or medical condition.  If an employer makes any scheduling inquiring during the pre-employment phase (i.e. application, interview), it must clearly communicate that the applicant does not need to disclose any scheduling restrictions based on legally protected grounds (i.e. religion, disability or medical condition).  An employer that does not comply with this practice will be in violation of FEHA unless it can prove its practice was job related and consistent with business necessity.   

·         To prevent age discrimination, employers cannot ask applicants when they graduated or their date of birth.  In addition, online applications cannot (1) require applicants to enter their age in order to access or complete an application; (2) use drop-down menus that contain age-based cut-off dates; or (3) utilize automated section criteria or algorithms that effectively screen out applicants age 40 and older.

·         Employers are now substantially limited in the language that can be used in recruiting and advertising – prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over”, unless age is a bona fide occupational qualification for the position. 

·         The revised FEHA regulations create a presumption of age discrimination for practices that have an adverse impact on applicants and employees age 40 or over, even if the practice or policy looks neutral and does not specifically target older workers.

Workers’ Compensation

On January 1, 2020, AB 5, the independent contractor bill that codified the “ABC Test” outlined by the California Supreme Court’s 2018 Dynamex decision and extended it to the Labor and Unemployment Insurance Codes, went into effect.  However, one provision of that law was delayed until July 1, 2020.  Specifically, the ABC Test will apply for purposes of workers’ compensation beginning July 1, 2020.  This means, the Workers’ Compensation Appeals Board will now use Labor Code Section 2750.3 (the ABC Test or an exclusion) to determine whether someone is entitled to workers’ compensation benefits (as an employee) or not (as an independent contractor). 

Expanded Paid Family Leave Benefits

As a result of SB 83, beginning July 1, 2020, the maximum duration of Paid Family Leave (PFL) benefits an individual can receive from California’s State Disability Insurance program will go from six to eight weeks.  PFL provides partial wage replacement to employees who are absent from work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement of the child via foster care or adoption.

Minimum Wage Updates

On January 1, 2020, the California minimum wage increased to $13/hr for employers with 26 employees or more and $12/hr for employers with 25 employees or fewer.  However, on July 1, 2020, a number of localities increased their minimum wage requirements.  Below is a list of those localities:

• Alameda: $15/hour.
• Berkeley: $16.07/hour.
• Emeryville: $16.84/hour;
• Fremont: $15/hour for employers with 26 or more employees; $13.50/hour for employers with 25 or fewer employees.
• Los Angeles City: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• Los Angeles County (unincorporated areas): $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• Malibu: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• Milpitas: $15.40/hour.
• Novato: $15/hour for employers with 100 or more employees; $14/hour for employers with 26-99 employees; $13/hour for employers with 25 or fewer employees.
• Pasadena: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• San Francisco: $16.07/hour.
• San Leandro: $15/hour.
• Santa Monica: $15/hour for employers with 26 or more employees; $14.25/hour for employers with 25 or fewer employees.
• (NEW) Santa Rosa: $15/hour for employers with 26 or more employees; $14/hour for employers with 25 or fewer employees.

U.S. Supreme Court Case Re: Title VII

On June 15, 2020, the U.S. Supreme Court issued a highly anticipated decision ruling that sexual orientation and gender identity are protected by Title VII of the Civil Rights Act’s sex discrimination protections. (Bostock v. Clayton County, Georgia, No. 17-1618, (U.S., Jun. 15, 2020).)  Accordingly, any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII. 

Background Report Disclosure

The Ninth Circuit Court of Appeals recently held that a background report disclosure to a job applicant, which is required by the Fair Credit Reporting Act, may be provided to the applicant at the same time as other hiring-related documents as long as it is a “standalone” document that consists only of the disclosure.  In other words, the disclosure cannot be buried inside other documents, such as a job application.

If you have any questions regarding the foregoing laws and how it impacts your business, please give me a call.

Donna Vasquez

D Vasquez Law, APC

This publication is general in nature and is not intended to replace professional legal advice. Questions regarding specific matters or circumstances should be discussed with legal counsel.