New California Employment Laws in 2021 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. Operates a business in the same industry and the business has an owner, partner, officer or director who is an immediate family member of any owner, partner, officer or director of the predecessor employer. This bill amends sections 6325 and 6432 of the Labor Code and adds section 6409.6 to the Labor Code. AB 1512 permits employers to require their unionized security officers to take on-duty rest breaks: i.e., to remain on the premises during rest breaks; remain on call during rest breaks; and carry and monitor a communication device during rest breaks. AB 979 requires, no later than December 31, 2021, any publicly held domestic or foreign corporation whose principal executive office is located in California to have a minimum of one director from an underrepresented community, and, by December 31, 2022 calendar year, any California-based publicly held corporation with more than four but fewer than nine directors to have a minimum of two directors from underrepresented communities, and such a corporation with nine or more directors to have a minimum of three directors from underrepresented communities. The worker performs work outside the usual course of the hiring entity’s business. Paid Family Leave will include time off for participation in a qualifying exigency related to the active duty or call to active duty of an individual’s spouse, domestic partner, child or parent in the Armed Forces of the United States. Posted on Dec. 21 2020. A petition to compel arbitration of a claim that is pending under Section 98, 98.1 or 98.2 must be served on the Labor Commissioner. This provision of the bill will expire on January 1, 2023. Pursuant to AB 2143, the “aggrieved person” must have filed the claim in good faith for the provision to apply. Alternatively, when employed per course or laboratory, the faculty member must receive at least the following amounts per hour, for all classroom or laboratory time, preparation, grading, office hours and other course or laboratory-related work: $117 in 2021; $126 in 2021; $135 in 2022; and a percentage increase in 2023 and each year thereafter that is equal to the percentage increase to the state minimum wage. This factor does not apply to employers who maintain the same workforce pursuant to Chapter 4.5 (commencing with Section 1060) of Part 3. The new law also mandates that the EDD mail to eligible employers a claim packet for each participating employee within 5 business days following approval of the application, and make online claim forms available to the approved employer for each participating employee within five business days following approval of the application if the employer submitted its work-sharing plan application online. In this video, I discuss five key new laws facing California employers: California’s Supplemental Paid Sick Leave, which took effect in September 2020 (read more about AB 1867 here) AB 685 requiring employers to provide notice of suspected or confirmed COVID-19 in the workplace, effective on January 1, 2021 … These new requirements and other changes to the California Family Rights Act (CFRA) become effective January 1, 2021… Unless otherwise indicated, each of the following new laws will take effect on Jan. 1, 2021. Following the reporting of an outbreak, the employer must continue to give notice to the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the worksite. In addition to existing certification requirements, this bill provides that employers are prohibited from taking action against employees when an unscheduled absence occurs if employees provide certification that they were receiving services for certain injuries, or if the documentation is from a victim advocate (as defined). The minimum wage for employers with 25 or fewer employees will increase to $13.00 per hour on January 1, 2020. © Faegre Drinker Biddle & Reath LLP var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising. In enacting AB 1512, the Legislature recognized that security officers must be able to respond to emergency situations without delay and call for assistance from police, fire or ambulance services when necessary. guidance issued by the Department of Industrial Relations, Division of Labor Standards Enforcement and the Employment Development Department, Summary of Key New California Laws for 2020 (and Beyond): What Employers Should Know, New California Laws for 2019: What Employers Should Know, OFCCP Issues Last Directive Under CERT Principles for OFCCP Policies and Practices, OCR Proposes Substantial Changes to HIPAA Privacy Rule, U.S. Department of Education Extends and Clarifies COVID-Related Waivers for Accrediting Agencies, Provide written notice to all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the “qualifying individual”. It clarifies that a service provider that provides services through a referral agency may be properly classified as an independent contractor if the service provider satisfies 11 criteria which include: (1) the service provider is free from the control and direction of the referral agency both as a matter of contract and in fact; (2) if the work for the client is performed in a jurisdiction that requires the service provider to have a business license or business tax registration, or a professional license, permit, certification registration, the service provider must certify to the referral agency that they have the required documents; (3) the service provider provides its own tools and supplies to perform the services and the service provider sets their own hours and terms of work or negotiates their hours and terms of work directly with the client; (4) without deduction by the referral agency, the service provider sets their own rates, negotiates their rates with the client through the referral agency, negotiates rates directly with the client, or is free to accept or reject rates set by the client; (5) the service provider is customarily engaged, or was previously engaged, in an independently established business or trade of the same nature as, or related to, the work performed for the client and the service provider is free to accept or reject clients and contracts; and (6) the referral agency does not restrict the service provider from maintaining a clientele and the service provider is free to seek work elsewhere, including through a competing referral agency. Employers may mandate this rule only if the collective bargaining agreement expressly provides for the employees' wages, hours of work, working conditions, rest periods, final and binding arbitration of disputes concerning application of the rest period provisions, premium wage rates for all overtime hours worked, and a regular hourly rate of pay of not less than one dollar more than the state minimum wage rate. SB 1383 significantly expands the California Family Rights Act (CFRA) beginning January 1, 2021. This exemption is extended to January 1, 2022. The new laws — some of which were signed into law just weeks ago — address several topics including sick leave, worker classification, employee leave, workers’ compensation, safety regulation enforcement, wages and unemployment insurance. All employers with operations in California should be aware of these new laws, understand how these laws may affect their operations and consult with counsel to address any compliance questions. Under AB 685, private and public employers who receive notice of a potential exposure to COVID-19 must do the following within one business day: The written notice provided to employees may include, but is not limited to, personal service, email or text message if it can reasonably be anticipated to be received by the employee within one business day of sending and shall be in both English and the language understood by the majority of the employees. Finally, should the employee be on a COVID-19 Supplemental Paid Sick Leave while the law expires, the employee is allowed to finish taking the amount of leave. Such employers will be required to grant employees up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves or a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner. AB 2399 will revise defined terms for paid family leave purposes and include a definition of “military member.”. AB 2017 provides that when an employee takes sick leave to attend to the illness of a family member, the designation of sick leave is at the sole discretion of the employee. The bill also requires the Employment Development Department to provide DFEH, upon its request, as specified, with the names and addresses of all businesses with 100 or more employees and authorizes the DFEH to seek an order requiring non-reporting employers to comply with SB 973. The new law also adds a section to the Labor Code which specifically provides that Cal/OSHA can shut down or prohibit operations at a worksite when, in the opinion of Cal/OSHA, a worksite or operation “exposes workers to the risk of infection” of COVID-19 so as to constitute an imminent hazard. 12950.1. Below is a list of new employment laws that are set to go into effect in 2021. AB 2765 expands the definition of “public works” for these purposes to include any construction, alteration, demolition, installation or repair work done under private contract on a project for a charter school when the project is paid for with the proceeds of certain bonds. In addition, while existing law has an exception to the ban on “no-rehire” provisions if the employer has made a good-faith determination that the “aggrieved person” engaged in sexual harassment or sexual assault, AB 2143 requires the determination of sexual assault or harassment to be documented by the employer before the “aggrieved person” filed the claim. By continuing to browse this website you accept the use of cookies. Annual California Employment Law Update: New Laws for 2021 Provide COVID-19 Protections and Expand Family Leave Alice Kwak , Jennifer Nutter , David Prager , Mary Vu Epstein … Provide all employees who may have been exposed and their exclusive representative, if any, with information regarding COVID-19-related benefits to which they may be entitled, including but not limited to worker's compensation, COVID-19-related leave, and paid sick leave, as well as the employer's anti-discrimination and anti-retaliation policies. A guide to the new California labor laws in 2021 The new year brings new legislation across the US, and this includes California labor laws. It provides that in addition to the Attorney General of the State of California and certain City Attorneys, District Attorneys may now prosecute an action for injunctive relief for non-compliance with AB 2257. Labor Code Sections 1401(a), 1402 and 1403 (the key provisions of the CA WARN Act addressing required notice to employees) has been suspended to permit employers to act quickly in order to mitigate or prevent the spread of coronavirus, subject to satisfaction of certain conditions. This bill amends Section 12930 of and adds Chapter 10 (commencing with Section 12999) to Part 2.8 of Division 3 of Title 2 of the Government Code. In addition, an employer must comply with the notice and paystub requirement previously established under the California Healthy Workplaces, Healthy Families Act of 2014 (HWHFA). To meet the duties test, the employee must be primarily engaged in an occupation that is commonly recognized as a learned or artistic profession and must customarily and regularly exercise discretion and independent judgment about the performance of his/her duties. However, it does retain the requirement that, to be eligible for leave, an employee must have at least 1,250 hours of service with the employer during the previous 12-month period. The new law also adds a section to the California Labor Code which provides that a successor employer is liable for any wages, damages and penalties owed to any of the predecessor employer's former workforce pursuant to a final judgment, after the time to appeal therefrom has expired and for which no appeal therefrom is pending, if the successor employer meets any of the following criteria: This bill amends Section 1205 of and adds Section 200.3 to the Labor Code and amends sections 1502, 2217 and 17702.09 of the Corporations Code. SB 973 requires California private employers with 100 or more employees to submit a pay data report to the Department of Fair Employment and Housing (DFEH) by no later than March 31, 2021, and annually thereafter. This reporting requirement applies regardless of whether you believe the employee contracted COVID-19 at work. AB1281, which amends Section 1798.145 of the Civil Code and was approved by Governor Newsom on September 29, 2020, extends the exemptions under the California Consumer Privacy Act (CCPA) for personal information collected and shared in the employment and business-to-business contexts through December 31, 2021, if the California Privacy Rights and Enforcement Act (CPRA) — which is on the November 3 ballot and contains the same extensions, but through 2022 — does not pass. Under the new law, when a nonexempt employee covered by Section 226.7 of the Labor Code is affirmatively required to interrupt their rest period to address an emergency, the employer must authorize the employee to take another rest period reasonably promptly after the circumstances that led to the interruption have passed. What qualifies as an outbreak depends on the size of the employer. It expands the scope of the exempted industries to include, among others, recording artists, songwriters, lyricists, licensed landscape architects, real estate appraisers, home inspectors, people who provide underwriting inspections and other services for the insurance industry, still photographers, photojournalists, videographers, photo editors, fine artists, freelance writers, translators, editors, content contributors, advisors, narrators, cartographers, producers, copy editors, illustrators, or newspaper cartoonists. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. Employees must be compensated separately for non-course related work on behalf of the employer, which shall not affect the employee's classification as an exempt employee. Specifically, under SB 826, by December 31, 2021, any California-based publicly held corporation with six or more directors must have at least three female directors on its board; if the number of directors is five, then at least two must be women; and if the number of directors is four or fewer, then the corporation must have at least one female director. As noted in our prior alert, the bill authorizes DFEH to oversee the collection of pay data and to share information of alleged pay discrimination with the agency responsible for enforcing the California Equal Pay Act, the Division of Labor Standards Enforcement (DLSE), to coordinate enforcement. In addition, it eliminates the requirement that Cal/OSHA provide to the employer its notice of intent (1BY) to issue a “serious violation” citation for COVID-19 related hazards. The latest litigation trends, court decisions, & issues on California Employment Law. Under SB 1383, the CFRA will be expanded to cover any employer with 5 or more employees. Under current law, an employer may not enter into an agreement that restricts an “aggrieved person” from working for the employer against which the “aggrieved person” has filed a claim. This bill adds section 1203.4b to the Penal Code. Any company that doesn’t comply with these requirements will face significant financial penalties consistent with the penalties previously implemented under SB826, including a $100,000 penalty for failing to timely file board member information with the Secretary of State pursuant to to-be-adopted regulations; a $100,000 penalty for the first violation of the new law; and a $300,000 penalty for the second and any subsequent violation. New California Employment Laws for 2021. Finally, when employed under a collective bargaining agreement (CBA), the faculty member must be paid pursuant to that CBA if the classification of employment in a professional capacity is expressly included in the CBA in clear and unambiguous terms. Five Employment Law Changes Employers Can Expect Under a Biden Administration AB 685 Requires Employers To Provide … This bill also contains a broad definition of “immediate family member” to include “any other individual whose close association with the employee is the equivalent of a family relationship” as described. Segment one includes abortion, housing, firearms, domestic partnership, … A “qualifying individual” is a person who: 1) has a laboratory-confirmed case of COVID-19; 2) has a positive COVID-19 diagnosis from a licensed health care provider; 3) has been ordered to isolate due to COVID-19; or 4) has died due to COVID-19. Some of the regulations signed by Gov. As 2020 comes to an end, we wanted to highlight and summarize some of the new employment laws which have already taken effect or are taking effect in 2021. AB 2143 amends Code of Civil Procedure section 1002.5 to specify the circumstances under which an agreement to settle an employment dispute may include a provision that prohibits a settling party from working for the employer again (sometimes known as a “no-rehire” provision). SB 1383 also requires that an employer who employs both parents of a child grant up to 12 weeks of leave to each employee, whereas the old CFRA allowed an employer to only grant a total of 12 weeks to such employees. Key Points: Numerous new California laws going into effect on January 1, 2021 (or earlier), will impact employers and employees. It makes some key changes to the Business Service Providers (i.e., business-to-business) Exemption as follows: (a) expands contracting business to include services provided to a public agency or quasi-public corporation; (b) clarifies that the criteria of providing services directly to the contracting business rather than to customers of the contracting business does not apply if the business service provider’s employees are solely performing the services under the contract under the name of the business service provider and the business service provider regularly contracts with other businesses; (c) specifies the written contract for services must state the payment amount, including any applicable rate of pay, for services to be performed, as well as the due date of payment for such services; (d) the business service provider’s business location may include the business service provider’s residence; and (e) the business service provider can contract (vs. actually contracts) with other businesses to provide the same or similar services and maintains a clientele without restrictions from the hiring entity. Wage and Hour Laws. The California Labor Commissioner has clarified that being subject to the State of California’s “general stay-at-home order” does not mean that the employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19. This bill amends section 233 of the Labor Code. The new law amends Section 98.4 of the Labor Code, which previously provided only that the Labor Commissioner could represent indigent claimants in de novo proceedings (appeals of Labor Commissioner wage claim awards). This bill amends Section 1279.5 of — and adds Section 1279.6 and Section 1279.7 to — the Unemployment Insurance Code. Law Firms: Be Strategic In Your COVID-19 Guidance... [GUIDANCE] On COVID-19 and Business Continuity Plans. 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