The new year is right around the corner, so we thought it might be a good time to dive into some of the new labor laws on California’s docket for 2021. There’s a hefty amount this year – covering a wide range of topics such as sick leave, worker classification, corporate diversity, and the coronavirus pandemic – so here’s a quick look.
AB 979 is modeled after SB 826, which was passed in 2018 and added Section 301.3 to the California Corporations Code, requiring publicly traded companies with principal executive offices in California to place at least one female director on their board by December 31, 2019. According to SB 826, that number must increase in proportion to the corporation’s total number of seats by December 31, 2021. So, for example, if a corporation has six or more directors on its board, there must be at least three female directors among them by the end of 2021. If there are five seats, there must be at least two female directors, and if there are four or fewer seats, there must be at least one female director.
AB 979 – which was signed earlier this year – functions similarly in that it will require California-based corporations to have a minimum of one director from an underrepresented community on their board no later than December 31, 2021. Also, by the end of calendar year 2022, that number must increase to a minimum of:
The bill 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.”
SB 973 will require California private employers with 100 or more employees to submit a pay data report to the Department of Fair Employment and Housing (DFEH) on or before March 31, 2021, and every year thereafter. The report must include information regarding the number of employees within the company (classified by race, ethnicity, and gender across various job categories) and the total hours worked by each employee within a each pay band during the reporting year.
This is essentially a state level version of the federal Employer Information Report (EEO-1) and will serve to authorize the DEFH to oversee pay data and monitor any instances of alleged pay discrimination within California-based companies.
California’s SB 493 provides additional protection to students facing sexual harassment in institutions of higher education receiving state financial assistance. No later than January 1, 2022, these institutions will need to comply with certain requirements designed to make it easier for students to report sexual harassment and assault, including providing students with notice of their rights and information on how to report incidents and ensuring adequate training for school officials involved.
SB 1383 – which takes effect January 1, 2021 – will significantly expand the coverage and scope of the California Family Rights Act (“CFRA”), which currently requires employers with 50 or more employees to provide 12 workweeks of unpaid, job-protected family or medical leave to its workers.
Under SB 1383, CRFA coverage will now include all employers with five or more employees. The new coverage will also provide much more inclusive family and medical leave rights by expanding the definition of “family members” to include domestic partners, grandparents, grandchildren, adult children, and siblings. Under the new CRFA, employees are eligible for up to 12 workweeks of unpaid protected leave during any 12-month period to:
This is a notable development in that small businesses will now need to get up to speed on all these new CRFA requirements come January 1st. Moreover, since the new definition of “family members” expands beyond what is covered under the federal Family and Medical Leave Act (FMLA), some businesses may have to administer CFRA and FMLA separately, meaning that certain employees may be entitled to take up to 24 weeks (i.e. 12 weeks to care for a grandchild under CRFA and 12 weeks to cover an illness under FMLA).
Under current law, employees may use up to half of their accrued sick leave to care for a family member, which is known as California’s “Kin Care” law (Labor Code section 233). AB 2017 amends this law by giving the employee the right to designate the reason for which they use their available sick leave “at their sole discretion.”
Existing law prohibits an employer from discharging, discriminating against, or retaliating against victims of domestic violence, sexual assault, or stalking for taking a leave of absence. AB 2992 extends those protections to victims of crime or abuse, and to immediate family members of homicide victims. Under the new law, victims of crime and abuse will be entitled to take time off from work to obtain related relief to help ensure health, safety, or welfare “regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.”
The bill also expands the nature of relief obtained during a leave of absence to include seeking medical attention for injuries caused by crime or abuse, obtaining psychological counseling, attending judicial proceedings, or to participating in safety planning.
Effective January 1st, 2021, this bill expands the information business entities must include in their statement filed with the California Secretary of State. Specifically, the information will now have to include whether "any officer or any director, or, in the case of a limited liability company, any member or any manager" has an outstanding final judgment that was issued by the Division of Labor Standards Enforcement or a court of law for the violation of any wage order.
This new law is designed to discourage employers from attempting to avoid liability for unpaid wages by creating multiple subsidiaries or dissolving and reincorporating their companies. Upon the creation of a new corporation, each party must attest under penalty of perjury that they have no outstanding final judgments issued to them. Under AB 3075, a “successor employer” will be liable for any wages, damages, and penalties owed by the predecessor employer if the successor employer meets any of the following criteria:
Under Labor Code section 98.7, employees who allege they have been discharged or discriminated against in violation of any Labor Code provisions enforced by the Labor Commissioner currently have six months to file a complaint with the Division of Labor Standards Enforcement (DLSE). Beginning January 1, 2021, AB 1947 extends that time to one year.
It also amends Labor Code Section 1102.5 by allowing plaintiffs who successfully bring a whistleblower retaliation claim pursuant to the code to recover reasonable attorney’s fees.
AB 1512 allows security guards to remain on-call and on the premises during their rest breaks. It also allows the officer to restart their rest period as soon as practicable if it was interrupted by work.
Section 226.75 of the Labor Code currently exempts employees who hold safety-sensitive positions at petroleum facilities from being relieved of all duties during rest periods. Such employees must be available to respond immediately to emergencies by staying on the premises and carrying a communication device during rest periods. While this exemption was set to expire on January 1, 2021, AB 2479 will extend it to January 1, 2026.
For those who need a refresher, AB 5 was signed into law by Governor Newsom in 2019, which adopted the so-called “ABC Test” in order to determine whether a worker could be properly classified as an independent contractor if they met the following criteria:
Since its enactment, there have been over 30 proposed bills seeking to modify or repeal it. The only bill to make it through this year has been AB 2257, which, while retaining the “ABC Test,” introduces important modifications to some of the current exceptions to the test, including but not limited to:
SB 1159 establishes a rebuttable presumption (in other words, an assumption that is legally taken to be true unless someone comes forward to contest it and prove otherwise) that an employee contracted COVID-19 at work if the employee tests positive or is diagnosed with coronavirus 14 days after performing labor or services at the employee’s place of employment. Under this law, the illness is considered an occupational injury and is eligible for workers’ compensation benefits if the specified criteria are met. This bill went into effect on September 17, 2020 and will remain in effect until January 1, 2023.
As we continue to weather the coronavirus pandemic, employers are still wondering what the proper protocol is when learning that one of their employees has been infected with COVID-19. AB 685 delineates an employer’s obligations by prescribing notice requirements in the event of a COVID-19 exposure in the workplace, requiring them to provide notice to employees and subcontractor employers within one business day of a potential COVID-19 exposure. It also requires them to notify their local public health department if an outbreak occurs at the worksite.
The bill also expands the Division of Occupational Safety and Health of California’s (Cal/OSHA) authority to shut down operations at a worksite if – in the opinion of Cal/OSHA– the worksite or operations expose “workers to the risk of infection” of COVID-19 so as to constitute an imminent hazard.
AB 2537 requires public and private employers to supply their hospital workers – specifically those who provide direct patient care or services that directly support personal care – with personal protective equipment. It also requires the employer to maintain a three-month supply of PPE (effective April 1, 2021) and provide an inventory report to Cal/OSHA upon request.
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