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California Employers Getting Hit Hard Again with New 2021 Employment and Labor Laws

Many expect lawsuits challenging new California labor laws

By Katy Grimes, December 28, 2020 12:01 pm

As 2020 draws to a close, new state laws will be taking effect in January, changing the rules for employers regarding paid sick leave, COVID-19 reporting, classifying gig workers in California, requirements for minorities on boards, changes to workers’ compensation, among many others.

California Globe talked with Sandy Rappaport, a labor and employment attorney with Hanson Bridgett about some of the new laws and what they mean for employers.

California’s AB-685, which requires employers to inform employees and local health officials about COVID-19 in the workplace, takes effect in January, as does an increase in minimum wage and SB-1383, which expands the California Family Rights Act to cover all employers with five employees or more. It used to only apply to employers with 50 or more employees.

This means under the CFRA, now employers with only five employees will need to provide 12 weeks of job-protected family leave for bonding leave, illness, and active duty. The definition has also been expanded for family members — it now includes grandparents, grandchildren, and siblings.

Also under family leave, Assembly Bill 2017, revised the kin-care leave law to provide that an employee has the right to designate sick leave as for kin care; or for the employee’s own health condition or for obtaining relief if the employee is a victim of domestic violence, sexual assault, or stalking. This is more like the paid time off system of personal time off which an employee can use at their sole discretion.

Mandatory minority representation and females on boards takes effect in 2021. AB 979 requires that by the end of 2021 California-headquartered publicly-held businesses have at least one board member from an “underrepresented community,” defined 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 already lawsuits challenging this new law.

January will also see the enactment of California’s AB-2257, which modifies the state’s AB-5 “gig worker” law requiring that many industries reclassify independent contractors as employees. The legislation grants new exemptions in some industries while revising the rules for others.

A whole slew of COVID-related laws were passed, including some really onerous emergency regulations for employers.

Cal-OSHA adopted emergency regulations, which requires employers to implement a COVID-19 Prevention Plan. The COVID-19 Prevention Program must include:

• A system for communicating with employees about COVID-19 testing.
• Procedures for identification and evaluation of COVID-19 hazards.
• Procedures for investigating and responding to COVID-19 cases in the workplace.
• Correction of COVID-19 hazards.
• Training and instruction.
• Physical distancing.
• Employers must provide face coverings for employees and enforce their use.
• The Program should restate the employer’s reporting and recordkeeping obligations under Cal/OSHA.
• Employers must keep employees with COVID-19 exposure out of work for 14 days, and for those employees who are otherwise able to work but are required to self-quarantine, the employer must continue paying those employees (through sick leave benefits or otherwise) and protect their jobs.
• Return to work criteria. Employees with symptoms of COVID-19 should not return to work until (1) at least 24 hours have passed since a fever of 100.4 or higher has resolved without the use of fever-reducing medications; (2) COVID-19 symptoms have improved; and (3) at least 10 days have passed since COVID-19 symptoms first appeared.

AB 3075 by Assemblywoman Lorena Gonzalez (D-San Diego) says that the successor employer is liable for unpaid wage judgments. According to bill analysis, “Assembly Bill 3075 will ensure employers cannot reorganize as a “new entity,” change their company name, or hide their assets to avoid paying fines and workers what they are owed after being caught. It will also enable local enforcement agencies to issue citations for wage violations that may appear available only to the state. Lawbreaking employers should not be able to use loopholes to avoid paying hard working individuals the wages they are owed, especially during an economic and public health crisis.”

Prevailing wage definition expansion: AB 2765 by Assemblyman Patrick O’Donnell (D-Long Beach) expands the definition of public works for the purpose of expanding the impact of prevailing wages, the hourly rate paid on public works projects, to include Charter Schools. The new law will include any construction, alteration, demolition, installation, or repair work done under private contract on a project for a charter school, as defined, when it is paid for, in whole or in part, with the proceeds of conduit revenue bonds issued on or after January 1, 2021.

AB 1281 by Assemblyman Ed Chau (D-Arcadia), extends two exemptions in the California Consumer Privacy Act (CCPA) to January 1, 2022 two existing exemptions. The first exempts from the CCPA certain information collected by a business about a natural person in the course of the natural person acting as a job applicant, employee, owner, director, officer, medical staff member, or contractor, Globe contributor Chris Micheli reported.

“The second exempts personal information reflecting a written or verbal communication or a transaction between the business and the consumer, if the consumer is a natural person who is acting as an employee, owner, director, officer, or contractor of a company, partnership, sole proprietorship, nonprofit, or government agency and whose communications or transaction with the business occur solely within the context of the business conducting due diligence regarding, or providing or receiving a product or service to or from that company, partnership, sole proprietorship, nonprofit, or government agency.”

AB 1512 by Assemblywoman Wendy Carrillo (D-Los Angeles) Authorizes a private security companies to require security officer employees who are covered by a valid collective bargaining agreement, to remain on call during rest periods.

AB 1947 by Assemblyman Ash Kalra (D-San Jose) and Assemblywoman Lorena Gonzalez (D-San Diego), extends the time that workers have to file a claim with the California Labor Commissioner if their employer retaliates against them for exercising their workplace rights under the Labor Code. This bill also authorizes an attorneys’ fee award to a worker who prevails on a whistleblower claim.

Senate Bill 1159 by Sen. Jerry Hill (D-San Mateo) creates “rebuttable presumption” that illness or death related to COVID-19 is a workplace “injury” and therefore eligible for workers’ compensation benefits. SB 1159 was “gutted and amended” to define injury for “critical workers” to include illness or death that results from exposure to coronavirus. The employee’s “injury” will be presumed to be the result of an employment “injury.”

The Workers’ Compensation system is a “no-fault” insurance for wage replacement and medical benefits to employees injured in the course of employment. It’s “no-fault” primarily because the employee automatically gets his or her medical costs covered, minimum weekly pay, and if necessary, retraining. But it’s not really “no-fault” because California employers have no choice in carrying the insurance coverage – even if they already cover their employees with health insurance. In effect, it’s double insurance for an employer.

The new law requires employers to notify their workers’ comp carrier when a COVID outbreak occurs. An “outbreak” is defined as follows: a) For employers with 5-100 employees, 5 or more employees who worked at a specific work location contracted the disease within a 14-day period; b) For employers with more than 100 employees, 5% or more of the employees who worked at a specific work location contracted the disease within a 14- day period.

California employers already pay some of the highest workers’ comp insurance premiums in the country.