However, the core of AB 5 remains unchanged. In a Busy Year of Health Care Antitrust Enforcement, DOJ’s First... California Expands the California Family Rights Act (CFRA). Stephanie has experience in antitrust, commercial contracts, franchise law, labor and employment, and... You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter. On September 30, 2020, Governor Newsom signed SB 973, which requires certain employers to collect and submit compensation data to the California Department of Fair Employment and Housing (DFEH). Finally, this bill amends Labor Code Section 1205, which currently states that local jurisdictions are not precluded from enforcing their own local labor laws that are more stringent than state law. Under AB 5 only the Attorney General and certain city attorneys were able to seek such relief. AB 2143 slightly amends this law in three ways: AB 979 creates a new requirement that publicly-held domestic or foreign corporations whose principal executive offices are located in California have a minimum number of directors from underrepresented communities. If the DFEH does not receive the required report from an employer, the Department may seek an order requiring the employer to comply with these requirements and shall be entitled to recover the costs associated with seeking the order. Shortly thereafter, on Election Day 2020, California voters further amended AB 5 by passing Proposition 22 which defines app-based drivers – for companies such as Uber, Lyft, and Door Dash – as independent contractors. The provision is not to be used in a manner that would interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water. AB 1947 changes this by adding Section 1102.5(j), which authorizes courts “to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.” This change will likely lead to more whistleblower claims, as more often than not, attorneys’ fees provisions are a driver of litigation. OSHA’s authority will remain in effect until January 1, 2023. AB 685 (Chapter 84, Statutes of 2020) is a California law signed by Governor Gavin Newsom on September 17, 2020. An employer must retain a record of the written notice for at least three years. Aimed at addressing pay inequities based on gender, race, and ethnicity, the bill requires California employers who have 100 or more employees, and who are required to file an annual Employer Information Report (EEO-1) under federal law, to submit an annual report containing two categories of information. Is There No Protection For The Innocent When A Corporation Transfers... Election 2020 Putting Cannabis Center Stage. As of January 1, 2021, AB 1947 makes two significant changes to existing laws: (1) revising Labor Code section 98.7 to increase the time to file a complaint with the Division of Labor Standards Enforcement from six months to one year; and (2) authorizing courts to award reasonable attorneys’ fees to plaintiffs who bring successful retaliation claims under Labor Code section 1102.5. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. AB 5 also exempted certain occupations, industries, and contractual relationships from the “ABC” test, and continued to allow those hiring entities to use the less-stringent, pre-Dynamex test established in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). personal service, email, or text message) and that is typically used for communicating with the employee. It also requires companies to develop anti-discrimination and sexual harassment policies; training programs for drivers related to driving, traffic, accident avoidance, and training programs recognizing and reporting sexual assault and misconduct.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.Â. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. However, SB 1159 creates a new presumption of compensability for two classes of employees. Since its enactment, AB 5 has been the subject of criticism, litigation, and lobbying efforts from a number of “gig” industries, freelancers, and independent contractors that did not find the legislation workable for their industries. SEC Adopts Final Resource Extraction Disclosure Rules; Duplicative... Florida Receives EPA Approval to Assume Clean Water Act Section 404... TCPA NIGHTMARE: Court Grants $122k Summary Judgment Against Debt... CFTC Extends Temporary No-Action Relief From Trade Execution... Ontario Government Extends COVID-19 Period Until July 3, 2021. “EEOC Explore” Tool Launched to Provide Greater Transparency and... Brexit and Its Effect on European Union Trademarks. AB 979 defines a "publicly-held corporation" as a corporation with outstanding shares listed on a major United States stock exchange and creates a timeline by which a minimum number of directors from underrepresented communities must be achieved. Arbitration Arbitration Agreements as a Condition of Employment (AB 51). Professional Services Exemption: AB 2257 expands the professional services exemption set forth under AB 5 for still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists who had more than 35 submissions in a year. AB 5 codified and expanded the scope of the “ABC” test established in Dynamex. This bill applies to dates of injury after July 5, 2020, and will be in effect until January 1, 2023. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. Witness Coaching by Whisper Leads to Sanctions for Defense Witness... HHS Proposes Changes To HIPAA Including Access To Protected Health... California's New COVID-19 Exposure and Notification Law. Shortly thereafter, on Election Day 2020, California voters further amended AB 5 by passing Proposition 22 which defines app-based drivers – for companies such as Uber, Lyft, and Door Dash – as independent contractors. Effective January 1, 2021, all employers except for health facilities must take the steps outlined below within one business day of receipt of notice that its workforce was exposed to an individual who either tested positive for COVID-19, was diagnosed with COVID-19 by a licensed healthcare provider, was ordered by a public health official to isolate due to COVID-19, or was determined by the county public health department to have died due to COVID-19. Violation of Section 1102.5 is currently a misdemeanor and may lead to actual damages (Labor Code §1105) and/or a civil penalty of $10,000 for each violation (Labor Code § 1102.5(f)). If the hiring business fails to establish any of these factors, the worker will remain classified as an employee. Notably, AB 2257 also grants district attorneys the ability to file injunctive relief actions against businesses suspected of misclassifying employees as independent contractors. Second, it creates a presumption of compensability for employees (a) whose employers have five or more employees; (b) who test positive within 14 days of a workday occurring at a worksite that is not their home (unless a caregiver); and (c) who test positive during an “outbreak” at their workplace. Specifically, § 1102.5 prohibits employers from retaliating against an employee for: disclosing a violation of state or federal law or a violation of or noncompliance with a local, state, or federal rule, or regulation to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting the investigation, hearing or inquiry. It requires employers whose employees may have been exposed to COVID-19 in the workplace to notify their employees accordingly and report to local health officials. Such complaints can lead to an investigative hearing and remedial action (e.g., rehiring or reinstatement, reimbursement of lost wages, penalties). Keep employees' medical information, including COVID-19 temperature screens, in a separate file from the personnel file. First, it creates a presumption of compensability for certain first responders and healthcare workers (listed in Labor Code § 3212.87) who test positive for COVID-19 within 14 days of a workday occurring at a worksite that is not their home. AB 5 codified and expanded the scope of the “ABC” test established in Dynamex. The executive order applied to dates of injury from March 19, 2020, through July 5, 2020. AB 3075, effective January 1, 2021, makes it easier for workers to enforce judgments for unpaid wages by making certain successor businesses liable for their predecessor’s unpaid wage and hour judgments. Ranging from Covid-19 legislation to revisions to worker classification laws, new reporting requirements, and mandatory additions to boards of directors, below you will find our annual 2021 Employment Law Update. The minimum wage in California varies depending on the size of the employer. Specifically, AB 3075 adds Section 200.3 to the Labor Code and provides that a "successor" to a judgment debtor will be liable for any "wages, damages, and penalties owed to any of the judgment debtor's former workforce pursuant to a final judgment, after the time to appeal therefrom has expired and for which no appeal therefrom is pending.". The main changes that AB 2257 makes are (1) modifying and clarifying the business-to-business, referral agency, and professional services exemptions set forth in AB 5; and (2) exempting additional occupations and business relationships. California Employer Update (CEU) is a monthly digital newsletter delivered straight to your inbox. Third, AB 2143 clarifies that the prohibition against “no-rehire” provisions in settlement agreements does not apply where the former employee did not file their complaint in good faith. Employers with 20-49 employees now have to post information on the available baby-bonding benefits, and employers with 50 or more employees have to update their previous postings. OSHA’s authority will remain in effect until January 1, 2023. Specifically, AB 979 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.” In its findings and declarations supporting AB 979, the California Legislature noted that currently, over 35 percent of publicly-traded corporations headquartered in California have all White boards of directors. Visit AB 5 – Employment Status to learn how it impacts you. These new requirements are in addition to the requirements enacted last year, requiring female representation on such corporate boards, set forth in California Corporations Code section 301.3, as detailed in our firm’s alert from last year. CFRA no longer has a provision permitting employers to provide fewer than 12 weeks for leave in connection with the birth, adoption, or foster care placement of a child if both parents work for the same employer. In this article, we highlight some of these new changes that may affect your business: AB 5: Employee v. Independent Contractor: Enter the ABC Test. Prior to joining Allen Matkins, Jeffrey was an associate at Paul Hastings in the Employment Litigation Department, where he assisted with various matters including, class actions and PAGA wage and hour cases.  His experience also includes an internship with Hon. Dear Employers: Thank you for visiting our website and for your interest in updating your company information. It should be read in conjunction with AB 685, which implements various notice requirements for cases of COVID-19 in the workplace. AB 3075, effective January 1, 2021, makes it easier for workers to enforce judgments for unpaid wages by making certain successor businesses liable for their predecessor’s unpaid wage and hour judgments. In addition, employers are no longer permitted to refuse reinstatement to salaried employees who are among the highest 10% of the employees at the company and where the refusal is necessary to prevent substantial and grievous economic injury. “Single-Engagement” Business-To-Business Exemption:  AB 2257 creates an exemption for a “stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week” as long as the worker has “control and direction” over the work, mutual freedom to negotiate the rate of pay, a written contract that specifies the pay rate, the tools and materials are provided by the worker, and both the hiring and performing entities maintain separate business locations. AB 979 defines a "publicly-held corporation" as a corporation with outstanding shares listed on a major United States stock exchange and creates a timeline by which a minimum number of directors from underrepresented communities must be achieved. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). He also counsels companies on various compliance issues involving free speech in the workplace, the preparation of employee handbooks, sexual harassment training, executive employment agreements, and adhering to ADA regulations for company websites and mobile... Dwight L. Armstrong is a partner in the firm's Orange County office. The strict three-prong “ABC” test presumes that all workers are employees, and places the burden on the hiring business to establish the following factors in order to classify a worker as an independent contractor: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The ballot initiative defined app-based drivers as workers who (a) provide delivery services on an on-demand basis through a business’s online-enabled application or platform or (b) use a personal vehicle to provide prearranged transportation services for compensation via a business’s online-enabled application or platform. However, SB 1159 creates a new presumption of compensability for two classes of employees. The strict three-part “ABC” test still applies when determining whether a California worker can be classified as an independent contractor unless there is an exemption, in which case the more lenient Borello test would be used. Indeed, cases have been brought by California truckers, freelance journalists, and gig economy businesses challenging the application of AB 5 to their industries and the constitutionality of the law itself. disclosing a violation of state or federal law or a violation of or noncompliance with a local, state, or federal rule, or regulation to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting the investigation, hearing or inquiry. The report must include the number … Also, employers with five or more employees are required to notify their claims administrators within three business days when they know, or reasonably should know, that an employee has tested positive for COVID-19. Provide written notice to the potentially exposed employees, their exclusive representative (if any), and the employers of any exposed subcontracted employees that includes the following: That they may have been exposed to COVID-19; What COVID-19 related benefits are available to them under law; Anti-retaliation and anti-discrimination protections; and. However, there are no other carve-outs. Second, AB 2143 expands upon this “no-rehire” exception such that no re-hire provisions are allowed when the former employee engaged in “any criminal conduct,” (i.e., no longer limited to sexual harassment or sexual assault). Think Twice Before Signing an Outsourcing Agreement! A corporation may increase the number of directors on its board to comply with this new law. For California employers, 2020 carries a whole set of new legal obligations. Failure to understand and adapt to the changes in worker classification law can expose California employers to significant risk, including the collection of unpaid wages and back taxes, civil penalties, and civil (and potentially class action) litigation. Specifically, AB 3075 adds Section 200.3 to the Labor Code and provides that a "successor" to a judgment debtor will be liable for any "wages, damages, and penalties owed to any of the judgment debtor's former workforce pursuant to a final judgment, after the time to appeal therefrom has expired and for which no appeal therefrom is pending.". The requirements for this exemption have also been modified to allow service providers to negotiate their rates with the client. In response to some of these concerns, the California Legislature enacted AB 2257, which amended AB 5 and created additional exemptions for certain occupations and contractual relationships. Stay tuned as to how this litigation turns out and the impact on arbitration agreements in California. Currently, California businesses with 50 or more employees must provide eligible workers with up to 12 weeks of job-protected, unpaid leave under CFRA and … CEU guides readers through the myriad state employment laws and zeroes in on hot issues affecting California workplaces. Finally, this bill amends Labor Code Section 1205, which currently states that local jurisdictions are not precluded from enforcing their own local labor laws that are more stringent than state law. Any employee may file a workers’ compensation claim for COVID-19 with causation to be determined in due course. ; Requires the California Department of Public Health (CDPH) to publicly report information on workplace … California s Governor recently finished signing into law many new employment-related bills, some that have already gone into effect and others going into effect on January 1, 2021. The specific place of employment is ordered closed by a local health department, the State Department of Health, the Division of Occupational Safety and Health, or a school superintendent due to the risk of infection of COVID-19. 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. First, AB 2143 clarifies that, in order to qualify for the current “no-rehire” exception related to sexual harassment or sexual assault, the employer must have made “and documented” a good faith determination, “before the aggrieved person filed the claim,” that the former employee engaged in sexual harassment or sexual assault. Private Employers Must Submit a Pay Data Report to the DFEH (SB 973): Private employers with 100 or more employees must submit a pay data report to California's Department of Fair Employment and Housing (DFEH) by Mar. This report must also include the total number of hours worked by each employee in each pay band during the reporting year. Mandatory or Voluntary Employee Vaccinations: EEOC Weighs In, Indian Pharmaceutical and Medical Device Regulation 101 [PODCAST]. Patrick Zika in the Alameda County Superior Court. A few minutes influence of drugs or alcohol, and requires criminal background checks for.. 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