In 2020, Governor Gavin Newsom of California signed multiple laws affecting employers in California. The new California labor laws, some of which were signed into law only weeks ago, cover various issues, including sick leave, job classification, job leave, benefits for jobs, implementation of safety rules, salaries, and unemployment insurance.
All California-based employers should be aware of these new laws, consider how these laws will impact their practices, and work with attorneys to resolve any enforcement issues. In Assembly Bill (AB) or Senate Bill (SB), each new legislation's effective date is indicated.1.
AB 685 (Effective Jan. 1, 2021)
Note Commitments for COVID-19 Occupational Exposures and Cal / OSHA Compliance Adjustments
In the event of a COVID-19 virus positive test results in the workplace, AB 685 prescribes notification standards for employees, strengthens reporting requirements to local health authorities in the event of a COVID-19 outbreak, and extends the California Division of Occupational Safety and Health (Cal / OSHA) authority to shut down work sites considered to be an "imminent danger" due to COVID-19 and issue "significant breach."
Under AB 685, California employers who are informed of possible exposure to COVID-19 must, within one business day, do the following:
Provide written notice during the infectious timeframe that they might have been exposed to COVID-19 to all employees and employers of subcontracted employees on the premises at the same worksite as the "qualifying individual "2.
Provide written notice, if any, to the exclusive representative (union) of the above workers.
Provide details about COVID-19-related benefits to which they may be entitled, including but not limited to worker compensation, COVID-19-related leave, and paid sick leave, as well as the anti-discrimination and anti-retaliation policies of the employer, to all workers who may have been exposed and their sole representative, if any.
Provide notice of the disinfection and safety plan that the employer plans to enforce and complete, according to CDC guidelines, to all workers, the employers of subcontracted workers, and the exclusive delegate, if any.
The written notice given to employees can include, but is not limited to, a personal service, email, or text message, provided that it can reasonably be expected to be obtained by the employee within one business day of dispatch and is understood by the majority of the employees in both English and the language.
As established by the CA Department of Public Health, AB 685 also imposes reporting requirements on employers notified of a COVID-19 outbreak. Employers must inform the local public health department in the jurisdiction of the worksite, within 48 hours of learning of the outbreak, of the names, number, occupation, and worksite of qualified individuals, as well as the business address of the employer and the NAICS code of the worksite where the qualified individuals worked. After disclosing an outbreak, the employer must continue to give notice of any subsequent laboratory-confirmed cases of COVID-19 at the worksite to the local health department.
The new law also adds a provision to the Labor Code that explicitly specifies that Cal / OSHA can shut down or ban operations at a worksite when a worksite or activity "exposes staff to the risk of infection" of COVID-19 in the opinion of Cal / OSHA in order to constitute an imminent threat. Furthermore, it removes the obligation that Cal / OSHA sends its Notice of Intent (1BY) to the employer to issue a "serious breach" citation for hazards associated with COVID-19. This means that before a summons can be given, employers don't have a "15-day window" anymore to respond to the notice with proof to support their defense. On Jan. 1, 2023, this clause of the bill will expire.
This bill amends the Labor Code, sections 6325 and 6432, and extends the Labor Code to section 6409.6.
AB 736-Technical Exemption Extension (Effective Sept. 9, 2020)
Under the Industrial Wage Commission (IWC) Wage Order Nos. 4-2001 and 5-2001, AB 736 extends the professional exemption to include part-time, or 'adjunct,' faculty in California's private, non-profit colleges and universities. By inserting Section 515.7, which states that an employee offering training for a course or laboratory in an independent higher education institution, as specified in the Education Code, is listed as exempt under the exemption if the employee meets both the duties and the salary test, the legislation amends the Labor Code.
In order to fulfill the task exam, the worker must be specifically engaged in an occupation that is generally known as a learned or creative career and must exercise independence and critical judgment on the performance of his / her duties on a frequent and regular basis.
The employee must be compensated on a salary basis in order to comply with the salary test and earn a monthly salary equal to no less than twice the state minimum wage for jobs in which the employee is working for a minimum of 40 hours a week. Alternatively, when employed per course or laboratory, for all classroom or laboratory time, planning, grading, office hours, and other course or laboratory-related jobs, the faculty member must earn at least the following sums per hour: $117 in 2021; $126 in 2021; $135 in 2022; and a percentage increase in 2023 and any year thereafter that is equivalent to the percentage increase in the state Employees must be paid individually on behalf of the company for non-course-related jobs, which does not impact the classification of the employee as an excluded employee. Finally, when working under a collective bargaining agreement (CBA), the faculty member must be charged under the CBA if, in simple and unambiguous terms, the classification of employment in a professional capacity is expressly included in the CBA.
This bill adds the Labor Code to Section 515.7.
AB 979-Appointment of Directors on Corporate Boards from Underrepresented Groups (Effective Sept. 30, 2020)
AB 979 complements SB 826, passed in 2018, which required that at least one female director be put on its board by Dec. 31, 2019, in California by any publicly owned company whose principal executive offices (according to the SEC 10-K form of the company) are in California. By Dec. 31, 2021, SB 826 also implemented minimum seat criteria that must be met by women relative to the total number of seats. Specifically, by Dec. 31, 2021, under SB 826, any California-based publicly-owned corporation with six or more directors on it board must have at least three female members on its board; if the number of directors is five, at least two must be female; and if the number of directors is four or less, at least one female director must be in the company.
No later than Dec. 31, 2021, AB 979 requires any publicly owned domestic or international company whose main executive office is located in California to have at least one director from an underrepresented group and, by Dec. 31, 2022 calendar year, any publicly owned company based in California with more than four directors but less than nine to have at least two directors A 'director from an under-represented group' means a person who identifies himself as African American, Hispanic, Asian, Pacific Islander, Native American, Hawaiian, or Alaska Native, or who identifies himself as gay, lesbian, bisexual, or transgender under the new legislation.
Any business in California that does not comply with these provisions will face substantial financial penalties consistent with the penalties previously levied under SB826, including a $100,000 penalty for failure to file board member details in a timely manner with the Secretary of State under regulations to be adopted; a $100,000 penalty for the first violation of the new law; and a $300,000 penalty for the first violation of the new law;
The bill amends Section 301.3 of the Corporate Code and adds Sections 301.4 and 2115.6 to it.
AB 1281, Revisions and Regulations of the California Consumer Privacy Act (CCPA) (Effective Sept. 29, 2020)
AB1281, which amended Section 1798.145 of the Civil Code and was authorized by Governor Newsom on Sept. 29, 2020, expands the exemptions under the California Consumer Privacy Act (CCPA) for personal information obtained and exchanged by Dec. 31, 2021, if the California Privacy Rights and Enforcement Act (CPRA) is on Nov. 3, 2021, in the jobs and business-to-business sense. Otherwise, the two exemptions will sunset at the end of 2020. Businesses are now assured that these two exemptions will continue for another year, at least.
Furthermore, on Aug. 14, 2020, the California Attorney General announced that the CCPA implementing regulations had been approved and certified by the state of California Office of Administrative Law (OAL), which became effective immediately. Most of the improvements were grammar and continuity adjustments, but our prior warning addresses five slight updates, not unique to the job context.
AB 1512 (Effective Sept. 30, 2020) Mandatory On-Duty Rest Breaks for Unionized Security Officers
AB 1512 requires employers to mandate their unionized security officers to take on-duty rest breaks: i.e., stay on-site during rest breaks, stay on-call during rest breaks; and during rest breaks, bring and track a communication device. The Legislature recognized in enacting AB 1512 that security officers must be able to respond to emergency situations without delay and, where appropriate, call for assistance from police, fire, or ambulance services.
Employers may enforce this rule only if the collective bargaining agreement specifically provides for the wages of workers, working hours, working conditions, rest times, final and binding arbitration of disputes relating to the enforcement of the provisions relating to the rest of the period, premium wage rates for all overtime hours worked and a daily hourly rate of pay of not less than one dollar more than the minimum state wage.
Under the new rule, if the on-duty rest period of a security officer is disrupted (i.e., the corporate officer is called upon to return to performing the active duties of his role before completing the rest period), the officer must be required to resume the rest period as soon as possible. A rest time is not disrupted simply because a radio or other communication system must remain on the premises, stay on call and warn, and/or track the officer. If an officer is not allowed to take an uninterrupted rest time of at least 10 minutes for every 4 hours worked or a substantial fraction thereof, an additional one hour of pay shall be charged to the security officer at the normal base hourly rate.
This bill amends Labor Code Section 226.7.
AB 1731 (Effective Sept. 28, 2020) Unemployment Benefits and Work-sharing Arrangements
AB 1731 provides an alternate, expedited mechanism by which employers can apply to the work-sharing program in California and participate. Previously, if they worked less than their normal weekly hours as a result of the employer's involvement in a work-sharing scheme that met stated criteria and had been approved by the Director of Workforce Growth, workers were eligible for unemployment benefits. Employers who decided to participate in a work-sharing program were required to submit a signed, written application form for the work-sharing plan to the director, which met the stated criteria.
AB 1731 requires the director to approve an application for participation in, or renewed participation in, the electronically submitted work-sharing program and requires the Department of Workforce Development (EDD) to create a platform for the provision and reception of such applications on its internet website. In addition, for work-sharing contract proposals submitted by qualified employers between Sept. 15, 2020, and Sept. 1, 2023, the new legislation mandates that they be considered acceptable for one year upon approval by the director unless the employer demands a shorter contract and the director approves it.
The new legislation also requires the EDD to send a claim packet for each participating employee to eligible employers within five business days of the approval of the application and to make online claim forms accessible to the approved employer for each participating employee within five business days of the approval of the application if the employer submitted its online application for a work-sharing agreement Upon fulfillment of the documentation in the claim kit, the EDD must, in compliance with the relevant criteria, create an unemployment insurance claim. The new legislation requires participating employers and workers, among other items, to comply with the mandatory unemployment insurance claim filing and weekly certification standards.
This bill amends Section 1279.5 of the Unemployment Insurance Code and adds Section 1279.6 and Section 1279.7 to it.
AB 1867-Supplemental Paid Sick Leave; Handwashing; Mediation for Family Leave (Sept. 9, 2020 effective)
AB 1867 contains three unrelated laws in one bill: expanded paid sick days for businesses with 500 or more employees nationwide, handwashing provisions for food workers working in any food facility, and the California Equal Jobs and Housing Act (FEHA) mediation pilot program for small employer family days.
Supplemental Paid Sick Leave: This bill codifies the California Governor's Executive Order N-51-20 (signed Apr. 16, 2020), which, as a result of the COVID-19 pandemic (COVID-19 Supplemental Paid Sick Leave), granted additional paid sick benefits to food sector workers for a company with 500 or more employees nationwide. This bill also expands COVID-19 Supplementary Paid Sick Leave to workers in the non-food sector in such a way that all workers who leave their homes or place of residence to work and who work for companies with 500 or more employees nationally must be given sick leave. In addition, under the federal Families First Coronavirus Response Act (FFCRA), COVID-19 Supplementary Paid Sick Leave is also available to health care workers and emergency responders who have not been given paid sick leave by their employers.
In order for a California employee to qualify for COVID-19 Supplementary Paid Sick Leave, the employee must be unable to function for one of the following reasons: the employee is subject to a Federal, California State, or local quarantine or isolation order related to COVID-19; the employee is advised to self-quarantine or self-isolate by a health care provider because of COVID-19 related concerns; or the employee is prohibited "The California Labor Commissioner has explained that being subject to the" general stay-at-home order "of the State of California does not mean that the employee is subject to a COVID-19 relevant Federal, State, or local quarantine or isolation order. Eligible workers are entitled, on the basis of whether they are considered full-time or part-time, to paid sick leave. Useful FAQs to support workers have been released by the California Labor Commissioner.
In addition, an employer must abide by the provision for notice and paystub previously defined under the Safe Workplaces, Healthy Families Act of 2014 (HWHFA) of California. In other terms, an employer must provide a written notice to an employee that sets out the amount of paid sick benefits available for use on either the itemized salary statement of the employee or the payment of wages of the employee in a separate written statement given on the specified payment date.
Insured employers are expected to have until Dec. 31, 2020, the same date that the FFCRA is due to expire, COVID-19 Supplementary Paid Sick Leave. The COVID-19 Supplementary Paid Sick Leave would also be extended to track the FFCRA's end date if the FFCRA is to be extended. Finally, the employee is permitted to finish taking the sum of leave if the employee is on a COVID-19 Supplementary Paid Sick Leave as long as the legislation expires.
Handwashing Requirements: AB 1867 allows workers working in any food facility to be able to wash their hands every 30 minutes and as required in addition.
Small Workplace Family Leave Mediation Pilot Program: Among other items, the California Department of Equal Employment and Housing (DFEH) has the authority to audit, mediate and prosecute grievances filed under FEHA by workers or former staff. AB 1867 allows the DFEH to implement a small employer family leave mediation pilot program that would allow a small employer or employee to invite both parties through the DFEH's Dispute Resolution Division to engage in mediation. This bill would preclude the employee from bringing a civil case until the mediation is complete, if mediation is required, and the statute of limitations would be permitted for the employee to bring a civil lawsuit. As of Jan. 1, 2024, this service expires.
This bill adds to section 12945.21 of the Government Code, adds to the Health and Safety Code section 113963, amends section 248.5 of the Labor Code, and adds to the Labor Code sections 248 and 248.1.
AB 1947-Time period (Effective Jan. 1, 2021) for the filing of DLSE complaints
AB 1947 extends the period to file a complaint with the Division of Labor Standards Regulation from six months to one year for workers who claim that they have been fired or otherwise discriminated against in violation of any legislation imposed by the Labor Commissioner. AB 1947 also allows a court to pay fair attorney's fees to a defendant who has successfully brought a whistleblower action under Section 1102.5 of the Labor Code. Prior to AB 1947, employees who prevailed in litigation claiming that their employer made, implemented, or imposed a policy that prohibited them from revealing information to a government or law enforcement agency where they had fair cause to suspect that the data released might seek damages in violation of a state or federal law, but were not entitled to recover attorney's fees. AB 1947 now provides them with the capacity to do so.
Parts 98.7 and 1102.5 of the Labor Code are amended by this bill.
AB 2017 (Effective Jan. 1, 2021) Sick Leave: Kin Treatment
AB 2017 provides that the designation of sick leave is at the sole discretion of the employee when an employee takes sick leave to attend to a family member's illness.
This bill amends the Labor Code's section 233.
AB 2143 (Effective Jan. 1, 2021) Settlement Deals
AB 2143 amends section 1002.5 of the Code of Civil Procedure to clarify the conditions in which an arrangement to settle an employment dispute can contain a clause preventing a settlement party (sometimes referred to as a 'no-rehire' provision) from working for the employer again. Under existing legislation, an employer does not enter into an arrangement prohibiting a "aggrieved individual" from working for the employer against which a claim has been filed by the "aggrieved person." Pursuant to AB 2143, for the provision to apply, the "aggrieved individual" must have filed the claim in good faith. Furthermore, while current law has an exemption to the prohibition of "no-rehire" provisions if the employer has made a good-faith decision that the "aggrieved individual" participated in sexual harassment or sexual abuse, AB 2143 needs the employer to record the decision of sexual assault or harassment until the "aggrieved person" submits the claim. This exemption is also expanded by AB 2143 to include criminal activity determinations.
Section 1002.5 of the (Code of Civil Procedure) is amended in this bill.
AB 2147 (Effective Jan. 1, 2021) Convictions
AB 2147 requires those people who have been released from prison with felony convictions and have completed the state of California Conservation Camp program to have their convictions expunged. It is automatically ineligible for this relief for people who have been convicted of such offenses, including murder and rape. In the wake of the recent extreme fire seasons in California, AB 2147 was passed to enable incarcerated individuals who have worked to assist with firefighting through the California Conservation Camp program to maintain firefighting jobs more easily after they have been released from custody.
This bill applies the Criminal Code to section 1203.4b.
AB 2257 (Effective Sept. 4, 2020) Worker Classification: Independent Contractors
In 2019, for the purposes of deciding if a worker was correctly identified as an independent contractor, the California Governor signed AB 5, which codified the ABC test articulated by the Supreme Court (in Dynamex Operations West, Inc. v. Superior Court of Los Angeles.
In regards to the performance of the job, the worker is free from the influence and guidance of the hiring body, both under contract for the performance of the work and in reality. The employee does work beyond the normal course of the operation of the hiring agency.
The worker is typically engaged in a profession, occupation, or business of the same nature as the work is done, which is separately developed.
AB 5 has set up numerous exemptions for which the ABC test is not valid. Instead, in 1989 in Borello & Sons, Inc. v. Department of Industrial Relations and other contractor classification requirements in the law, those exempted industries/professions were to continue to be subject to the factors articulated by the California Supreme Court.
There are some relevant improvements made by AB 2257:
It repeals Section 2750.3 of the Labor Code, which was enacted as a consequence of AB 5, and introduces new Sections 2775 to 2787 of the Labor Code.
It expands the reach of the exempted industries to include recording artists, songwriters, lyricists, licensed landscape architects, real estate appraisers, home inspectors, inspectors, and other insurance services, still photographers, photojournalists, videographers, photo editors, fine artists, freelance writers, translators, editors.
It allows some key changes to the exemption for business service providers (i.e., business-to-business) as follows:
(a) expands the contracting business to include services rendered to a public entity or quasi-public corporation;
(b) clarifies that the conditions for offering services directly to the contracting company rather than to the contracting company's clients do not apply if the business service is provided to the contracting company.
It clarifies that a service provider delivering services through a referral agency can be properly identified as an independent contractor if 11 conditions are met by the service provider, including: (1) the service provider is free from the influence and guidance of the referral agency both as a matter of contract and as a matter of fact; (2) if the client's work is carried out in a jurisdiction.
It provides that District Attorneys can now prosecute, in addition to the Attorney General of the State of California and some City Attorneys, an action for injunctive relief for non-compliance with AB 2257.
This bill repeals Section 2750.3 of the Labor Code, adds the Labor Code to Section 2775 through 2787 and amends and adds other parts of the Revenue and Taxation Code.
AB 2399 (Effective Jan. 1, 2021) Paid Family Leave
Paid Family Leave shall include time off for involvement in a qualifying provision relating to the active duty of the legal spouse, domestic partner, child or parent of a person in the United States Armed Forces. AB 2399 would amend existing terms for the purposes of paid family leave and will include a description of "service member."
This bill amends the Unemployment Insurance Code's sections 3302 and 3307.
AB 2479-Safety-Sensitive Positions Exemption from Rest Period Requirements (Effective Jan. 1, 2021)
AB 2479 extends the exemption from rest period provisions until Jan. 1, 2026 for designated employees holding a safety-sensitive position in a petroleum facility to the degree that such employees are required to carry and control a communications device, such as a radio or pager, and to respond to emergencies, or are required to stay on the premises of their employer to control the premises and to resume operations. The exemption, prior to AB 2479, was due to expire on Jan. 1, 2021.
Under the new legislation, if a non-exempt worker protected by Section 226.7 of the Labor Code is affirmatively forced to interrupt his rest period in order to deal with an emergency, the employer must allow the worker to take another rest period fairly soon after the circumstances that led to the interruption have passed. If circumstances do not allow an employee in California to take such a rest time, the employer must compensate the employee one hour of pay at the normal rate of pay of the employee for the remaining period not covered. Employers running petroleum facilities must also include the cumulative hours or wages due to an employee protected by Section 226.7 on account of a missed rest time, as part of the itemized wage statement that they are expected to furnish under Section 226(a) of the Labor Code.
This bill amends Labor Code Section 226.75.
AB 2765 (Effective Jan. 1, 2021) Public Works: Prevailing Salaries
California legislation mandates that employees working in public works be usually paid no less than the general prevailing rate of per diem salaries. For these purposes, AB 2765 extends the concept of 'public works' to include any work of construction, modification, demolition, installation, or repair undertaken under a private contract on a charter school project where the project is paid for with the proceeds of such bonds.
This bill applies the Labor Code to section 1720.8.
AB 2992-Leave of workers (Effective Jan. 1, 2021)
Current legislation forbids employers from discharging or discriminating against or retaliating against workers who are victims of domestic abuse, sexual harassment, or stalking for taking time off from work to receive or seek to obtain relief to help ensure the victim or victim's child's wellbeing, protection or welfare. AB 2992 extends existing laws that refer that workers who are victims of a crime or violence to take time off from work in order to seek or try to obtain the relief that includes a temporary restraining order, restraining order, or other injunctive relief to help ensure the victim or their child's health, protection or welfare. In addition to current certification provisions, this bill provides that when an unplanned absence occurs, employers are barred from taking action against workers if workers provide certification that they were obtaining treatment for such injuries or if the documentation is (as defined) from a victim advocate.
According to AB 2992, "victim" includes a victim of stalking, domestic abuse, or sexual assault; a victim of a crime that has caused or caused mental harm and danger of physical injury; or a person whose immediate member of the family has died as a direct result of a crime. This bill also provides a broad definition of "immediate family member" to include, as defined, "any other person whose close relationship with the employee is the equivalent of a family relationship."
Finally, AB 2992 forbids employers of 25 or more workers from discharging or discriminating or retaliating against workers who are victims and who need to take time off to seek medical treatment for injuries incurred by crime or violence, receive services from prescribed agencies as a consequence of crime or violence, receive psychiatric therapy or mental health services linked to an explanation. Useful FAQs to support workers have been released by the California Labor Commissioner.
Parts 230 and 230.1 of the Labor Code are amended by this law.
AB 3075 (Effective Jan. 1, 2021) Successor Responsibility for Unpaid Wages
In the corporation's statement of information submitted to the California Secretary of State, AB 3075 extends the information companies must provide. Specifically, AB 3075 allows an organization to include whether an outstanding final judgment given by the Division of Labor Standards Enforcement which no appeal is pending, has been given by any corporate officer or, in the case of an LLC, any member or manager, for the violation or provision of the Labor Code. The new legislation also introduces a clause of the California Labor Code that provides that a successor employer is responsible for all compensation, damages, and fines owed under a final judgment to all of the former workers of the predecessor employer after the expiry of the time to appeal from it and for which no appeal is pending if the successor employer meets either of the following criteria:
In order to provide substantially the same services as the previous employer, it uses substantially the same equipment or substantially the same staff. This consideration does not extend to employers who, under Chapter 4.5 (starting with Section 1060) of Part 3, retain the same workers.
Has the same owners or administrators who regulate labor relations significantly as the predecessor employer.
Any person who has directly managed the salaries, hours, or working conditions of the workers affected by the predecessor employer (the word managing agent has the same definition as in subdivision (b) of Section 3294 of the Civil Code) is employed as a managing agent.
Operates a company in the same sector and has an owner, partner, officer, or director who is a close member of the family of the previous employer's owner, partner, officer, or director.
This bill amends Section 1205 of the Labor Code and introduces Section 200.3 and amends (1502, 2217, and 17702.09) of the Code of Corporations.
SB 973, Compilation and Reporting of Pay Data (Effective Jan. 1, 2021)
SB 973 allows the Department of Equal Employment and Housing (DFEH) to send a pay data report to California private employers with 100 or more employees by no later than Mar. 31, 2021, and annually thereafter. The state pay data study, modeled after the federal EEO-1 Component 2 collection form, allows employers to collect aggregate W-2 earnings and study the number of workers in each of the 12 pay bands (ranging from $19,239 and below to $208,000 and above) for the ten broad categories of employment (executive or senior officials and managers; first or mid-level officials and executives; professionals; Employers must also record overall hours performed throughout the reporting year by and employee within a defined pay band. For each establishment, employers of several establishments must send a report as well as a consolidated report that includes all workers.
As stated in our previous alert, the bill authorizes DFEH to monitor the collection of pay data and to exchange details about suspected pay discrimination with the Division of Labor Standards Compliance (DLSE), the agency responsible for implementing the California Equal Pay Act, for coordinating compliance. The bill also allows the Department of Workforce Development to provide DFEH with the names and addresses of all companies with 100 or more workers, upon its request, as stated and authorizes DFEH to obtain an order requiring non-reporting employers to comply with SB 973.
This bill amends Section 12930 of the Government Code and adds Portion (2.8 of Division 3 of Title 2) of the Code to Chapter 10 (starting with Section 12999).
SB 1159-Workers' compensation: COVID-19: Vital Workers (Sept. 17, 2020 effective)
SB 1159 codifies and supersedes California's Executive Order N-62-20 (signed on May 6, 2020), which originated the COVID-19 presumptions that an employee's illness that assumes the coronavirus is a work-related injury and therefore qualifies for workers' compensation benefits if certain criteria are met. Between Mar. 19 and Jul. 5, 2020, Executive Order N-62-20 protected all California workers who served on a job outside their home under their employer's direction.
This bill covers employees who get sick or injured on or after Jul. 6, 2020, due to COVID-19 and establishes a presumption that every employee's COVID-19-related condition was presumed to occur from and during employment for the purpose of granting workers' compensation benefits if all of the following conditions were met: (a) the employee tested positive for or was diagnosed with
This bill also introduces a new rebuttable presumption that applies back to employee benefits coverage cases where there was a "outbreak" of COVID-19 at the place of employment of the employee. What counts as an epidemic depends on the employer's scale. An outbreak happens when: (1) if the employer has 100 workers or fewer: four employees get sick and test positive for COVID-19 within 14 calendar days; (2) if the employer has more than 100 workers: 4% of the number of workers testing positive for the COVID-19 virus within 14 calendar days; or (3) the workplace is ordered to be closed by authorities due to a risk of spread and infection with COVID-19. This relates back to cases arising on or after Jul. 6, 2020.
Under this new legislation, employers (with five or more workers) must disclose such details to the compensation carrier of their workers if they know or may fairly know that an employee had tested positive for COVID-19, assuming that the employee was on-site at the place of an employer in the 14 days prior to the positive testing of the employee (which is the day the employee underwent testing, not when the employee took the test, This reporting provision applies regardless of whether you think COVID-19 was contracted at work by the employee.
Within three business days of learning that a worker has tested positive for COVID-19, for any positive test that occurs on or after Sept. 17, 2020, an employer must report to its employee compensation carrier in writing, submitted via email or fax, all of the following information: an employee tested positive for COVID-19 (but without including any personally identifying information about t
A retroactive reporting obligation is also imposed on employees by the statute. For any positive test that that took place between Jul. 6, 2020, and Sept. 16, 2020, employers must send a similar written report to their workers' compensation carrier. The report must be sent by Oct. 17, 2020, to the carrier. The written report must contain the same details, except that the employer must determine the maximum number of workers who have registered to work at the particular place of employment between Jul. 6 and Sept. 17 instead of reporting the information referred to in item 4 above.
Employers may be fined up to $ 10,000 for failure to disclose or provide inaccurate or misleading information about the required information.
This bill adds the Labor Code to Section 77.8 and repeals the Labor Code's Sections 3212.86, 3212.87, and 3212.88.
SB 1383 Act on Family Rights in California (Effective Jan. 1, 2021)
SB 1383 repeals the New Parent Leave Act of California (NPLA) and the Family Rights Act of California (CFRA) and introduces a new CFRA instead. The CFRA will be extended under SB 1383 to include every employer with five or more workers. These employers will be required during any 12-month period to grant workers up to 12 workweeks of unpaid protected leave to bond with the employee's new child or to care for themselves or close family members. Such employers may also be allowed to offer up to 12 working weeks of protected leave over any 12-month period as a result of a qualifying provision relating to the active-duty covered or of a call to cover the active duty of the spouse, domestic partner, child, or parent of an employee in the United States Armed Forces.
Notably, SB 1383 eliminates the requirement that the employer hires a certain number of workers for the employee to be eligible for leave within a 75-mile radius of the employee's worksite. It does, however, maintain the requirement that an employee must have at least 1,250 hours of service with the employer over the preceding 12-month period in order to be eligible for leave. Except for any FMLA leave for disability due to pregnancy or childbirth, new CFRA leave will also continue to run simultaneously with leave taken under the FMLA.
SB 1383 also allows an employer employing both parents of a child to grant each employee up to 12 weeks of leave benefits, while the old CFRA permitted an employer to grant such employees a total of only 12 weeks.
This bill repeals Government Code sections 12954.6 and 12945.2 and introduces a new CFRA under section 12945.2 instead.
SB 1384-Expansion of Representation of Labor Commissioner to Arbitrations (Effective Jan. 1, 2021)
SB 1384 expands the Labor Commissioner's authority to represent claimants who are unable to afford arbitration advice; mandates that the Labor Commissioner be served with requests to compel arbitration under some statutes; and allows the California Labor Commissioner to represent claimants in hearings to decide if arbitration agreements are enforceable.
The new legislation amends Section 98.4 of the Labor Code, which previously specified only that indigent applicants should be represented by the Labor Commissioner in de novo proceedings (appeals for wage claim awards from the Labor Commissioner). SB 1384 adds to Section 98.4 two additional subparts, which provide:
As a consequence of a court order compelling arbitration, a claimant unable to have their claim adjudicated and determined by the Labor Commissioner under Sections 98 and 98.1, which request that the California Labor Commissioner represent the claimant in arbitration. If the complainant is financially unable to afford representation and if the commissioner decides, upon completion of an informal inquiry, that the claim has validity, the labor commissioner must represent the complainant in arbitration.
The Labor Commissioner must be presented with a petition to request arbitration of a dispute pending under (Sections 98, 98.1, or 98.2). At the request of the claimant, the commissioner shall have the right to represent the claimant in proceedings in order to assess the enforceability of the arbitration agreement, irrespective of whether the enforceability of the arbitration agreement is adjudicated in a judicial or arbitral forum.
This bill amends Labor Code Section 98.4.
The March 2020 Executive Order Discussing the CA Alert Act by Governor Newsom
Executive Order N-31-20 was released by Governor Gavin Newsom on Mar. 17, 2020, discussing the California Job Adjustment and Retraining Notification (WARN) Act (Lab. Code § § 1400, et seq.) and its 60-day notice provision for an employer ordering a mass layoff, transfer or termination at a covered establishment.
Cal., Per the Executive Order, Sections 1401(a), 1402 and 1403 of the Labor Code (the main provisions of the CA Alert Act addressing the requested notice to employees) have been suspended in order to allow employers to act quickly to minimize or avoid the spread of coronavirus, subject to certain requirements being met. "These provisions include: the mass layoff, transfer or termination must be triggered by" economic circumstances "connected with COVID-19 that were not fairly foreseeable at the time when the notice was requested"; the employer must otherwise inform affected workers in compliance with the CA Alert Act, and the noticed meeting other relevant criteria set out in the Executive Ordeal.
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