Updated: Mar 4
There are new employment laws in California, make sure your employee rights are protected. Consult with the right California employment lawyer.
Governor Gavin Newsom signed several employment-related bills passed by the Legislature of California in 2020. If you feel your employee rights have been violated, you must request an unbiased lawyer referral from a California State Bar Certified lawyer referral service. You will be connected to a pre-screened, California employment lawyer for a FREE case analysis.
New Employment Laws in California For 2021
In 2021, significant modifications impacting employers with California operations include:
Requiring additional COVID-19 paid sick leave of 500 or more employees for the food sector personnel, some health care providers and first responders, and individuals working by private enterprises;
Creating a refutable assumption that a protected employee contracted COVID-19 at work for workers' compensation purposes;
Workers of companies with five or more employees are expanding job-protected family leave; and
Requiring some private employers to send a data report containing defined wage details to the Department of Equal Employment and Housing ('DFEH') every year.
All the following new laws will take effect on January 1, 2021, unless specified otherwise.
COVID-19 Paid Sick Leave Supplementary:AB-1867 allows employers with 500 or more workers nationally to give up to 80 hours of COVID-19 additional paid sick leave ("SPSL") to employees who leave their homes to effectively conduct work. The law also covers health care staff and emergency responders whose employers have opted out of line with the Federal Families First Coronavirus Response Act ('FFCRA').
Workers are classified in the same way as they are counted under the FFCRA to decide if an employer has 500 plus employees in the United States, meaning that either this legislation or the FFCRA would apply to employees working in California.
The quantity of SPSL available depends on the schedule of the covered worker.
An employee with a daily schedule of fewer than 40 hours per week shall be entitled to SPSL for a sum equal to the total number of hours usually scheduled to work over two weeks.
For an employee with a variable schedule, there are additional provisions for determining the amount of leave. For the two-week duration preceding SPSL, covered employees expected to work an average of 40 hours a week are entitled to a full 80 hours.
Firefighters may be entitled to more than 80 hours of SPSL if they have been scheduled in the preceding two weeks for more than 80 hours.
For any of the following purposes, SPSL can be used:
The worker is subject to a COVID-19-related federal, state, or local quarantine or exclusion order;
The worker is advised to self-quarantine or self-isolate by a health care provider due to COVID-19-related concerns; or
Owing to health issues linked to the possible transmission of COVID-19, the worker is barred from working by the recruiting body.
Employees are entitled to pay SPSL at the limit of (1) the regular pay rate of the worker for the last pay period, (2) the minimum wage of the state, or (3) the local minimum wage (capped at $511 a day and $5,110 in total).
FAQs have been released by the Department of Labor Standards Compliance ('DLSE') specifying that employers do not request or require leave for an employee who obtains a medical certification.
The DLSE FAQs also suggest that if an employer has at least 500 employees, staff
in the food sector who are registered as independent contractors with SPSL must be given.
SPSL is offered by the recruiting agency in addition to any paid or unpaid leave, paid time off, or vacation time. Employers are entitled to compensation for any extra COVID-19 leave given to an employee for protected purposes as of March 4, 2020, such as COVID-19 leave granted by or voluntarily by an employer under an executive order or local ordinance.
The new pay stub provision for paid sick leave has been extended to require that available SPSL also be expressed on the pay stubs of workers or by a separate letter supplied with the employee's payment of salaries on the specified payment date.
The SPSL provision will expire on or after December 31 2020, or if the FFCRA expires at a later date. This bill also implemented an increased hand-washing provision for retail food facilities, enabling them to wash their hands at least every 30 minutes.
Finally, for employers of between five and 19 workers, the bill allows the DFEH to create a small workplace family leave mediation pilot program. Employers will have 30 days to seek mediation following the receipt of a right-to-sue letter. Civil litigation will not be pursued until the mediation is complete, and during this period, the statute of limitations would be tolerated.
Enhanced Standards for compliance and employer documentation.
AB-685 enables Cal/OSHA to issue Prohibiting Use Orders to shut down entire worksites or particular worksite areas that expose workers to an imminent COVID-19 threat.
The legislation also requires Cal/OSHA to give citations without giving employees 15 days' notice before issuing severe violations related to COVID-19.
Employers must promptly provide written notification to all workers at the worksite (within one business day of the warning of potential exposure) of potential exposures, advantages and protections associated with COVID-19, and of disinfection and safety measures to be taken at the worksite in response to the potential exposure.
Also, employers must also inform local public health authorities of outbreaks within 48 hours of being aware of a "outbreak," identified as three or more laboratory-confirmed cases of COVID-19 within two weeks among employees living in different households.
Sunsets for AB-685 on January 1, 2023.
COVID-19 Assumption of Workers' Compensation.
SB-1159 provides a refutable assumption that every employee's COVID-19-related condition occurs from and during employment to grant health benefits to employees.
This presumption was due to expire on July 5, 2020, as created by Governor Newsom's Executive Order N-62-20.
However, SB-1159 expands this presumption to firefighters, peace officers, fire and rescue coordinators, and some categories of health care and health care staff after July 6, 2020, including providers of in-home support facilities offer services beyond their own homes.
The rebuttable rule extends to all other workers only if the employee works for an employer of five or more employees and the employee tests positive for COVID-19 within 14 days after returning to work during a COVID-19 'outbreak' at the particular workplace of the employee.
There is an 'outbreak' as specified by this law if:
The company has 100 or fewer employees at a specific place of employment, four employees are tested positive for COVID-19.
The employer has 100 plus employees at a specific place of employment, 4% of the number of employees testing positive for the virus COVID-19 at a specific place of employment test.
A particular place of employment.
Additionally, for purposes of the outbreak presumption, the statute imposes reporting requirements on employees. If an employer knows or may reasonably know that an employee has tested positive for COVID-19, the employer must disclose certain details to its claims administrator. For breaching these reporting provisions, employees could be subject to civil fines of up to $10,000, it's important to consult with a California employment lawyer to avoid any mistakes.
SB-1159 immediately takes effect and will remain in effect until January 1, 2023.
CALIFORNIA FAMILY LEAVE
Kin Healthcare: Current legislation allows an employer who provides workers with sick leave to allow an employee to use at least half of the accumulated and available sick leave of the employee to care for a family member's illness ('kin care').
AB-2017 amends the law of kin care to ensure that the sick leave is designated at the "sole discretion" of the employee.
AB 2017 does not mandate employers to have any extra paid time off. It merely clarifies who takes a sick day to identify what form of sick leave is used.
Job-Protected Leave for Family: SB-1383 expands the California Family Rights Act ('CFRA') and the New Parent Leave Act ('NPLA') to make it an illegal workplace practice for any employer with five or more workers to refuse to grant an employee who requests to take 12 workweeks of unpaid protected leave during any 12 months to bond a newborn or to care for themselves or a child, parent, or grandparent.
The act also removes the 75-mile radius for employee counting purposes (but to be eligible for leave, the employee must have at minimum 1,250 hours of seniority with the company during the past 12-month period). Previously, within a 75-mile radius, the CFRA, and NPLA applied only to employers with 50 or 20 workers (respectively).
Furthermore, the legislation allows an employer who hires both parents of a child to give each employee leave. At present, over the 12 months, an employer is only allowed to
give all workers a combined total of 12 workweeks of unpaid safe leave.
Domestic abuse, sexual harassment, or stalking victims, Safe Time Off: AB-2992 amends sections 230 and 230.1 of the Labor Code to allow victims of violent crimes and murder victims' families (1) time to heal without fear of work loss and (2) increased unpaid leave.
The bill extends the ban on discharging, discriminating, or retaliating against workers who are victims of domestic violence, sexual harassment, or stalking to include "or other crime or abuse" "that caused physical injury or that caused mental injury and threat of physical injury" and a person whose immediate family member died as a direct consequence of the crime."
Also, the bill forbids employers with 25 or more workers from discharging, discriminating or retaliating against a "victim" employee, as specified, for taking off work to seek medical attention for injuries incurred by crime or violence, to receive treatment from prescribed agencies as a result of crime or abuse, to obtain psychiatric therapy or related mental health services.
CALIFORNIA WAGE HOUR, HIRING, AND WORKFORCE MANAGEMENT
Independent Contractors' classification. AB-2257 immediately amends AB-5 to update and add exceptions to the "ABC Test" used to decide if an employee or an independent contractor is properly identified as an employee.
The abolition of the annual 35-submission limit for freelance writers, editors, newspaper cartoonists, still photographers, and photojournalists is among the positive improvements. However, a number of other criteria still have to be met and a California employment lawyer will be able to check the particulars of your claim.
For staff who make, sell, promote, or distribute sound recordings or musical compositions, new exceptions have been added for some single-engagement live musical performances. Other additions include employees who provide the insurance industry with underwriting inspections and other facilities, a manufactured housing salesperson, individuals participating in a foreign visitor exchange program, advisory services, animal services, and competence judges with specialized skills. For licensed landscape architects, skilled performers teaching master classes, registered certified foresters, real estate appraisers and home inspectors, and aggregators of reviews, the bill also creates exemptions.
The bill revises the conditions under which exemption is given to business service providers offering services under a contract with another undertaking and exemption requirements from the referral agency. An exception has also been provided for business-to-business relations between two or more sole proprietors.
When set out in the bill, all of these exemptions and amendments are subject to strict requirements. And as before, if an exception is valid, in order to be properly classified as an independent contractor, the worker must still pass the multi-factor Borello test.
Reporting Requirement for Employer Pay Data. SB-973 allows a private employer that has 100 or more workers to send a pay data report to the DFEH containing defined wage details on or before March 31, 2021, and on or before March 31 each year afterward.
In each of the following job categories, covered employers are required to disclose the number of employees by race, ethnicity, and sex: executive or senior officials and managers, first or mid-level officials and managers, specialists, technicians, sales employees, administrative support workers, craft workers, operatives, workers and assistants, and service workers.
Employers are also expected to disclose the number of workers whose annual wages fall under each of the pay categories used by the U.S. by race, ethnicity, and sex. Occupational Job Statistics Survey of the Bureau of Labor Statistics. In each pay band, employers must also record the total number of hours worked by each employee.
SB-973 requires the DFEH to seek an order requiring the employer to comply and recover the costs of obtaining the enforcement order if the employer does not obtain the appropriate report.
Settlement arrangements in conflicts over jobs: AB-2143 amends section 1002.5 of the Code of Civil Procedure (prohibiting the use of no-rehire clauses in employment-related dispute resolution agreements, except when the employer has made a good faith decision that the aggrieved party has engaged in sexual harassment/assault) to make an exception, allowing a no-rehire clause if the aggrieved party has engaged in criminal activity. However, for the sexual harassment/sexual assault/criminal activity exception to apply, an employer must have reported the conduct before the aggrieved party lodged the lawsuit through their California employment lawyer against the employer.
AB-2143 further amends section 1002.5 to specify that an employee must have lodged his or her lawsuit in good faith against the employer to be treated as a "aggrieved party" entitled in a settlement agreement the safeguards of the statute's restriction against no-rehire provisions. As in the previous statute, no-hire arrangements are allowable if no claim has been made against the employer in court, in an alternative dispute settlement venue before an administrative body, or in the internal complaint procedure of the employer.
The Labor Code Grievances Statute of Limitations. Current law provides that a person who claims that in violation of any law imposed by the Labor Commissioner, he or she has been discharged or otherwise discriminated against must file a complaint with the DLSE within six months of the incidence of the violatio