New Policy in the US: New State Employment Laws to look out for in 2021

Photo: Quarles

COVID-19 Reporting (AB 685)

According to Labor Employment Law Blog, employers who receive “notice of potential exposure” that a “qualifying individual” must, within one business day, take the following actions:

1. Notify your employees and the employer of subcontracted workers that they may have been exposed to COVID-19: Provide written notice to your employees and the employer of subcontracted workers who were at a “worksite” within the “infectious period” of any employee who may have been exposed to COVID-19. You can inform workers of the dates that an individual with COVID-19 was at the worksite, but you should not share information that could identify the affected individual.

2. Notify union representatives: Provide written notice to union representatives, if any.

3. Provide information about benefits and other options: Provide all employees who may have been exposed with information regarding COVID-19-related benefits to which they may be entitled.

4. Notify employees of your disinfection and safety plan: Notify all employees, the employers of subcontracted employees, and union representatives, if any, of the company’s COVID-19 disinfection protocols and safety plan that the company plans to implement and complete to prevent further exposures, per federal Centers for Disease Control and Prevention (“CDC”) guidelines.

Photo: Square Space

Wage and Hour

Independent Contractors (AB 2257)

AB 2257 makes numerous changes to the “business-to-business” exception to the ABC test, including specifying the terms that must be included in a written contract, providing that a business service provider’s residence is a permissible place of business, and limiting the type of work materials that must be provided by the business service provider. It also waives the requirement that the business service provider must provide services directly to the contracting business if employees are doing the contracted work.

AB 2257 also makes changes to the exception for “referral agencies.” It clarifies various provisions, such as how a service provider certifies licensure, the freedom of a service provider to maintain its own clientele, and the ability of a service provider to set or negotiate its terms with clients, as well as establishing its rates without deduction by a referral agency. It also expands the type of qualifying services for the exemption to include graphic design, web design, tutoring, consulting, youth sports coaching, caddying, wedding planning, wedding and event vending, yard cleanup, captioning, and interpreting and translating services, according to Paul Hastings.

Limited Exemption from On-Duty Rest Periods for Union-Represented Security Guards (AB 1512)

AB 1512 amends California Labor Code section 226.7 and exempts certain union-represented security guards from the holding in Augustus. Under AB 1512, qualifying security officers may be required to remain on-premises and on-call during rest periods, including by carrying and monitoring communication devices. If the security officer’s rest period is interrupted by being “called upon to return to performing the active duties of the security officer’s post prior to completing the rest period,” the security officer must be permitted to restart his or her rest period as soon as practicable. If the security officer is not able to take a compliant rest period, the security officer must receive a premium of one hour’s of pay at the security officer’s regular hourly rate of pay.

The new law applies only to employees who are registered as security officers pursuant to the Private Security Services Act and employed by a private patrol operator registered pursuant to the Private Security Services Act, and who are covered by a collective bargaining agreement that includes terms for:

(1) the wages, hours of work, and working conditions of employees,

(2) rest periods,

(3) final and binding arbitration of disputes concerning the application of its rest period provisions,

(4) premium wage rates for all overtime hours worked,

(5) a regular hourly rate of pay of not less than one dollar more than the state minimum wage rate.

Photo: CPA

Expanded Labor Code Retaliation Protections (AB 1947)

Under Labor Code section 98.7, employees who believe that their employment was terminated or that they suffered an adverse employment action in violation of any provision of the Labor Code may file a complaint with the Labor Commissioner within six months after the violation. Once the complaint is filed, the Division of Labor Standards Enforcement (“DLSE”) investigates the matter, and if a violation is found, the employer may be ordered to reinstate the employee, pay back wages or lost benefits, or provide some other remedy. AB 1947 extends the deadline for filing a complaint with the DLSE to one year.

Labor Code section 1102.5 protects employees who, in good faith, have disclosed or threatened to disclose, or are believed to have disclosed, violations of law or regulations at the workplace to law enforcement, a government agency, a supervisor, or any person at the employer with authority to investigate such a violation. Currently, employees who prevail on a claim for violation of section 1102.5 may obtain damages, but not an award of attorneys’ fees.

Enhanced Enforcement Mechanisms for Wage/Hour Judgments (AB 3075)

AB 3075 was enacted in response to concerns that some employers attempt to avoid liability for unpaid wages by creating multiple subsidiaries or dissolving the company and reincorporating, making it difficult or impossible to enforce a judgment. AB 3075 also provides that whether a company is a “successor employer” for purpose of collecting a judgment based on a violation of the Labor Code is determined based on the existence of one or more of the following factors:

(1) the company uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the predecessor employer,

(2) it has substantially the same owners or managers that control the labor relations as the predecessor employer,

(3) it employs as a managing agent any person who directly controlled the wages, hours or working conditions of the affected workforce of the predecessor employer,

(4) it 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.

Photo: Medium

Leaves of Absence & Healthcare

Sick Leave and Kin Care (AB 2017)

AB 2017 amends Labor Code § 233, which permitted employees to use half of their annual accrual of sick leave to care for a family member, to give employees the sole discretion to designate leave taken to care for a family member as sick leave.

Amendments to Paid Family Leave Law (AB 2399)

AB 2399 amends the Unemployment Insurance Code §§ 3302 and 3307, which relate to paid family leave. Prior to the amendment, the Paid Family Leave program provided wage replacement benefits for workers who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement. Effective January 1, 2021, the Paid Family Leave program will be expanded to provide wage replacement benefits to workers who take time off to participate in a qualifying exigency related to the covered active duty or call to covered active duty of the worker’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Expansion of Crime Victim Leaves (AB 2992)

Under California Labor Code sections 230 and 230.1, an employer is prohibited from discharging, retaliating against, or otherwise taking any adverse action against a victim of domestic violence, sexual assault, or stalking for taking time off from work to obtain relief, such as obtaining a restraining order; seeking medical attention for injuries caused by domestic violence, sexual assault, or stalking; or obtaining psychological counseling related to an experience of domestic violence, sexual assault, or stalking. AB 2992 expands the leave protections provided under sections 230 and 230.1 to victims of any violent crime, and to immediate family members of homicide victims. Employees are entitled to the leave “regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.”

General Acute Care Hospital Workers, PPE Requirements (AB 2537)

AB 2537 requires General Acute Care Hospitals to provide personal protective equipment (“PPE”) to workers who provide direct patient care services or whose services directly support such care. These employers must also be prepared to report their highest seven-day consumption of PPE in the 2019 calendar year upon request by the applicable regulating agency.

Photo: Odysseyis

Expansion of EEO-1 Reporting Requirements (SB 973)

SB 973 expands the reporting requirements for Employer Information Reports (EEO-1). Specifically, private employers with 100 or more employees that are required to file an annual EEO-1 report pursuant to federal law are required to comply with this bill. SB 973 requires that the pay data report, submitted to the Department of Fair Employment and Housing, include:

(1) the number of employees by race, ethnicity, and sex in 10 job categories,

(2) the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey,

(3) the total number of hours worked by each employee counted in each pay band,

(4) the employer’s North American Industry Classification System (“NAICS”) code. This revised pay data report is initially due on or before March 31, 2021, and will be due on or before March 31 each year thereafter.

Expansion of CFRA Protections (SB 1383)

The California Family Rights Act (“CFRA”) currently makes it an unlawful employment practice for any employer with 50 or more employees (within 75 miles of the worksite), to refuse to grant a request by an employee, who has at least 1,250 hours of service with the employer during the previous 12-month period, to take 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, a child, a parent, or a spouse.

SB 1383 amends CFRA to apply to all employers with five or more employees. Additionally, SB 1383 requires an employer who employs both parents of a child to grant CFRA leave to each employee for that child’s health condition, birth, or placement. Lastly, SB 1383 makes it an unlawful employment practice for any employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period due to a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.

Photo: Oregon Counties

Discrimination and Harassment

Pay Data Reporting (SB 973)

SB 973 requires that, on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer with 100 or more employees and who is required to file a federal EEO-1 report must submit a pay data report to the Department of Fair Employment and Housing (“DFEH”) that covers the prior calendar year. A detailed discussion of this new law is in our prior alert here.

Corporate Boardroom Diversity (AB 979)

AB 979 is modeled after that law and requires all publicly held companies whose principal executive offices are located in California to have a minimum number of directors from “underrepresented communities” on their board of directors. It 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.”

There are two temporal benchmarks that covered corporations must satisfy: (1) by the end of the calendar year 2021, each publicly held corporation whose principal executive offices are located in California must have a minimum of one director from an underrepresented community on its board, and the corporation may increase the number of directors on its board to comply with this requirement, and (2) by the end of the calendar year 2022, such companies must comply with the following:

If its number of directors is nine or more, the corporation must have a minimum of three directors from underrepresented communities.

If its number of directors is more than four but fewer than nine, the corporation must have a minimum of two directors from underrepresented communities.

If its number of directors is four or fewer, the corporation must have a minimum of one director from an underrepresented community.

Age-Eligible Sexual Harassment Training (AB 3175)

AB 3175 clarifies that the minor must be accompanied by a parent or legal guardian during the training and that the parent or legal guardian must certify to the Labor Commissioner that the training has been completed. It also modifies the foreign language translation requirement from providing the SHPT in a language understood by the age-eligible minor and their parent or legal guardian to making a translation available “whenever reasonably possible.” This law took effect on September 25, 2020.

Photo: Spruce

Settlement Agreements (AB 2143)

AB 2143 expands this exception to include a good-faith determination that the former employee engaged in criminal conduct. The new law also provides that, to be eligible for the prohibition against a no-rehire clause, the former employee’s complaint must be made in “good faith,” and to qualify for the exception to the general prohibition against no-rehire clauses, the employer must make and document the good-faith determination before the complaint by the former employee is filed.

Child and Sex Abuse Reporting (AB 1963)

Under the Child Abuse and Neglect Reporting Act, whenever a mandated reporter, in their professional capacity or within the scope of their employment, has knowledge of or observes a child who the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect, they must report the incident to certain public authorities. AB 1963 makes the following employees “mandated reporters”:

(1) a human resources employee of a business with five or more employees that employ minors,

(2) for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with five or more employees.

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