Wednesday, January 13, 2021

New Year, New Laws - Welcome to 2021!

We have turned the page on a new year and much like previous years, January 1st brings with it a slew of new employment laws. This article provides a brief summary of some of the most pertinent employment laws employers should get up to speed on for 2021. 

Attorneys Fees for Whistleblower Retaliation Claims and Extension of Filing Period for DLSE Claims (AB 1947)

AB 1947 expressly authorizes a court to award reasonable attorneys fees to a plaintiff who prevails in a “whistleblower” action under Labor Code Section 1102.5. In addition, this new law lengthens the period of time in which employees can file complaints with the California Division of Labor Standards Enforcement (DLSE). Employees who believe they have been wrongfully discharged or discriminated against in violation of any law enforced by the Labor Commissioner now have one year to file a DLSE complaint.

Workplace Exposure Reporting Due to COVID-19 (AB 685)

AB 685 imposes new employer reporting requirements and allows the state to track COVID-19 cases in the workplace. AB 685, which went into effect on January 1, 2021, requires employers to notify their employees, employees of subcontracted workers and union representatives of suspected and diagnosed cases of COVID-19. Specifically, employers are required to provide written notice to employees (and subcontracted employees who were at the worksite and may have been exposed) and employee representatives of their exposure within one business day of a “potential exposure” based on a positive confirmed case of COVID-19 in the workplace. The notice must also provide information regarding COVID-19-related benefits that employees may receive, including workers’ compensation benefits, COVID-19 leave, paid sick leave, and the company’s anti-discrimination, anti-harassment and anti-retaliation policies. Moreover, the notice must provide employees information related to the company’s disinfection protocols and safety plan to eliminate any further exposures, per Centers for Disease Control and Prevention guidelines.

If there is an “outbreak” of COVID-19 cases at the same worksite within a 14-day period, the employer must also report the outbreak to the local health department within 48 hours. More information about AB 685 can be found here in our prior blog post. 

Expansion of Paid Family Leave (AB 2399)

Prior to AB 2399, the Paid Family Leave (PFL) program provided wage replacement benefits for workers who took time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement. Effective January 1, 2021, PFL will be expanded to provide wage replacement benefits to workers who take time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the worker’s spouse, domestic partner, child or parent in the Armed Forces of the United States.

Independent Contractor Law has New and Expanded Exemptions (AB 2257)

Most employers know that AB 5 adopted the ABC test from the case Dynamex v. Superior Court in order to determine whether workers are properly classified as employees or independent contractors. Under the ABC test, workers in California are presumed to be employees unless the business benefiting from the worker’s services can prove all three prongs of the ABC test. This is still the test for independent contractor classification in California; however, AB 2257 expanded the universe of available exemptions from the ABC test. AB 2257, which went into effect on September 4, 2020 upon being signed into law, makes it easier for entertainers, freelance writers and photographers, and digital content aggregators to maintain independent contractor status. The law also amended certain existing exemptions under AB 5, including the business-to-business, referral agency and professional services exemptions.   

Kin Care and Sick Leave (AB 2017)

AB 2017 amends Labor Code Section 233, which permitted employees to use half of their annual accrual of sick leave to care for a family member. The amendment now gives employees the sole discretion to designate leave taken to care for a family member as sick leave.

Small Businesses Now Covered by Expanded CFRA (SB 1383)

Prior to this year, the California Family Rights Act (CFRA) made it an unlawful employment practice for any employer with 50 or more employees who work within 75 miles of the work site to refuse to grant a request by an eligible employee (i.e. worked 1,250 hours during the previous 12 months) to take up to 12 workweeks of unpaid job protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, a parent or a spouse.

Effective January 1, 2021, SB 1383 now makes CFRA apply to all employers with five or more employees. It also expands the definition of “family care and medical leave” to now include grandparents, grandchildren and siblings as well as a child of any age. Under the amended law, an employer who employs both parents of a child now must also grant CFRA leave to each employee for that child’s health condition, birth or placement. Finally, SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child or parent in the armed forces of the United States. For more information about this law, see our prior blog post here.

Minimum Wage Increases

As of January 1, 2021, California’s minimum wage increased to $14 per hour for employers with 26 or more employees and $13 per hour for employers with 25 or fewer employees. Employers should keep in mind that this increase also affects minimum salary requirements for exempt employees. In addition, employers should take note of any local minimum wage increases because whatever rate is higher – state or local – will control for purposes of providing the proper minimum wage.

Permissible No-Rehire Provisions in Settlement Agreements (AB 2143)

Before AB 2143, the law prohibited “no rehire” provisions in settlement agreements under California Code of Civil Procedure Section 1002.5. AB 2143 amended this law to permit no-rehire provisions in settlement agreements when the “aggrieved person” did not bring the claim in good faith. Further, the law clarifies that the prior no-rehire exception for sexual harassment and sexual assault claims required that the employer made a documented and good-faith determination that the subject individual engaged in sexual harassment or sexual assault before the aggrieved person filed a claim. Additionally, AB 2143 expands the sexual harassment and sexual assault exception to allow no-rehire provisions in instances where the employer determined the employee engaged in criminal conduct.

Annual Reporting Pay Data to the DFEH (SB 973)

SB 973 expands the reporting requirements for employer Information Reports (EEO-1). Private employers with 100 or more employees that are required to file an annual EEO-1 under federal law are now also required to submit payroll data to the Department of Fair Employment & Housing (DFEH). This report must contain information about employees’ race, ethnicity and gender in various job categories. The report is due on or before March 31, 2021.

Disputable Workers’ Compensation Presumption (SB 1159)

On September 17, 2020, Governor Newsom signed SB 1159 into law, which went into effect immediately for all employers. SB 1159 provides that a “disputable presumption” exists for an employee who suffers illness or death resulting from COVID-19 on or after July 6, 2020 through January 1, 2023. The presumption is that the illness or death related to COVID-19 is an occupational injury such that the employee is entitled to workers’ compensation benefits. The employer may dispute this presumption with evidence that it had measures in place to reduce potential transmission of COVID-19 in the employee’s workplace and/or evidence of the employee’s non-occupational risks of COVID-19 infection.

Victims of Crime or Abuse Receive Further Protections (AB 2992)

Effective on January 1, 2021, AB 2992 amends California Labor Code sections 230 and 230.1 by prohibiting 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.” AB 2992 expanded upon the exiting law which provided protected leave for employees who were victims of domestic violence, sexual assault or stalking to now include leave for victims of other crimes or offenses “that caused physical injury or that caused mental injury and a threat of physical injury.” The new law also provides protected leave for an employee “whose immediate family member is deceased as a direct result of a crime” and extends the types of documentation required for leave eligibility to verify that a crime or abuse occurred.

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.