Turning the Page: California’s New Employment Laws for 2021
As we near the end of 2020, employers and employees alike are hoping that 2021 will be a less tumultuous year in the workplace than the current one. Businesses have struggled to keep their doors open and workers have fought to ensure their families stay fed. While the COVID-19 coronavirus remains the main culprit for the chaos and uncertainty experienced at work throughout 2020 in California, the new and amended employment laws going into effect on January 1, 2021, reflect legislative responses to the pandemic, as well as an assortment of other issues affecting the workplace.
Thakur Law Firm, APC has compiled the following summary of some of the most important laws that will impact California employers and employees in 2021 and of which both groups should make sure they are aware. All laws discussed in this post go into effect on January 1, 2021, unless otherwise specified.
AB 685: COVID-19 Reporting
AB 685, codified under Labor Code section 6409.6, sets out new requirements for employers to notify their employees, employees of subcontracted workers (e.g., temporary staffing agencies), and union representatives of suspected and diagnosed cases of COVID-19 and also to report workplace “outbreaks” of coronavirus to local health departments. Employers who receive “notice of potential exposure” by a “qualifying individual” – that is, an employee who: (1) has a laboratory-confirmed positive case or a diagnosis from a licensed health care provider, (2) received an isolation order from a public health official, or (3) died due to COVID-19 – must, within one business day, take the following actions:
Provide written notice to employees, union representatives, if any, and the employers of subcontracted workers who were at a “worksite” within the “infectious period” of any employee, who may have been exposed to COVID-19.
Provide the same persons with information regarding COVID-19-related benefits to which they may be entitled, including worker’s compensation, COVID-19-related leave, and paid sick leave, as well as the employer’s anti-discrimination and anti-retaliation policies.
Provide the same persons with copies of the company’s COVID-19 disinfection protocols and safety plan that the company plans to implement, according to guidelines issued by the Centers for Disease Control and Prevention (“CDC”).
While employers must notify employees of possible exposures, they must ensure to maintain the confidentiality of the infected person’s private information. This will require employers and managers to exercise keen discretion in providing adequate notification to those possibly exposed by informing workers of the dates that an individual with COVID-19 was at the worksite, but not sharing information which might identify the affected individual.
Additionally, if there is an “outbreak” at the same worksite within a 14-day period, employers must also notify their local health departments within 48 hours and continue to update them with subsequent COVID-19 cases thereafter.
SB 1383: Expansion of CFRA Protections
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. With SB 1383, CFRA shall apply to all employers with five or more employees.
Additionally, employers who employ both parents of a child must grant CFRA leave to each employee for that child’s health condition, birth, or placement. SB 1383 also makes it unlawful for any employer to refuse an employee’s request 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.
Finally, as CFRA will apply to all employers with 5 or more employees as of January 1, 2021, it is imperative that employers who were previously not covered by CFRA protections, but now are, become acquainted with the law and modify existing policies and practices regarding employee leave to conform to the new law.
AB 1947: Attorneys’ Fees for Whistleblower Retaliation & Extended Time Period to File a DLSE Claim
AB 1947 amends Labor Code section 1102.5 to allow courts to award attorneys’ fees to plaintiffs who prevail in whistleblower retaliation claims against their employers. Section 1102.5 prohibits employers from retaliating against an employee for: (1) disclosing a violation of law or regulation to a government or law enforcement agency, a person with authority over the employee, or to another employee who can investigate, discover, or correct the violation or noncompliance; or (2) providing information to or testifying before any public body conducting an investigation, hearing, or inquiry into a violation of law.
The consequences for violating Section 1102.5 can be significant for employers. If they are found to have violated this section in a lawsuit by an employee, employers may be compelled to reinstate him or her with backpay and benefits, pay the employee’s actual damages, and/or pay hefty civil penalties. However, whistleblowers have not been entitled to recover attorneys’ fees under Section 1102.5, though this will change with the new law, which adds attorneys’ fees as another available remedy.
AB 1947 also extends the time limit to file a claim with the Division of Labor Standards Enforcement (“DLSE”), commonly referred to as the State Labor Commissioner, for retaliation. Such claims trigger an administrative investigation, which can lead to penalties against the employer and reinstatement of the worker. This process is typically much faster and more streamlined than litigation in court. Currently, any person who believes they suffered discrimination or retaliation in violation of any law enforced by the Labor Commissioner has six months to file a claim with the Labor Commissioner. AB 1947 amends Labor Code section 98.7 to extend the deadline to file a claim with the Labor Commissioner to one year.
AB 2017: Sick Leave and Kin Care
AB 2017 amends Labor Code section 233 to give employees the sole discretion to designate leave taken to care for a family member as sick leave, whereas presently the law permits employees to use only half of their annual accrual of sick leave to care for a family member.
AB 2143: “No Rehire” Provisions in Settlement Agreements
Currently, California Code of Civil Procedure section 1002.5 prohibits “no rehire” provisions in settlement agreements, which generally state the separating employee will not apply to work for their previous employer, or any related entity, and affirms the employer’s right to not hire the employee without engaging in unlawful discrimination or retaliation. AB 2143 amends this law to add or expand several exceptions to the prohibition of “no rehire” provisions, permitting them in settlement agreements when the “aggrieved person” did not bring their claim in good faith and clarifying that the current exception for sexual harassment and sexual assault claims requires that the employer made a documented and good-faith determination that the individual engaged in sexual harassment or sexual assault, before the aggrieved person filed a claim. Finally, AB 2143 provides an exception to the ban on “no rehire” provisions for criminal conduct, subject to the same as in sexual harassment/assault claims.
AB 2399: Amendments to Paid Family Leave Law
AB 2399 amends the Unemployment Insurance Code sections 3302 and 3307, which relate to paid family leave. 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.
AB 2537: General Acute Care Hospital Workers, PPE Requirements
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. The law further requires covered employers to report their highest seven-day consumption of PPE in the 2021 calendar year upon request by the applicable regulating agency.
AB 2992: Expansion of Protections to Victims of Crime or Abuse
AB 2992 amends Labor Code section 230 and 230.1 to expand protections for victims of crimes or abuse, prohibiting employers from taking action against employees who were the victims of a crime, or whose family members were the victim of a crime, when they take time off following the crime. Currently, employers with 25 or more employees are prohibited from discharging, discriminating, or retaliating against an employee who is a victim of domestic violence, sexual assault, or stalking for taking time off from work for certain purposes related to such crimes. AB 2992 further prohibits covered employers from engaging in the proscribed actions against employees who seek relief, including but not limited to, a temporary restraining order, restraining order, obtaining psychological counseling, engaging in safety planning, seeking other injunctive relief, and to help ensure the health, safety, or welfare of the victim or their child. Also, the bill prohibits employers from taking action against affected employees for unscheduled absences if they later provide proof were receiving services for injuries relating to the crime or abuse.
SB 973: Expansion of EEO-1 Reporting Requirements
SB 973 expands the reporting requirements for Employer Information Reports (EEO-1). Specifically, private employers with 100 or more employees must report pay data reports to the Department of Fair Employment and Housing, including: (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, and (4) the employer’s North American Industry Classification System (“NAICS”) code. Covered employers must submit their reports on or before March 31, 2021, and will be due on or before March 31 each year thereafter.
SB 1384: Labor Commissioner’s Ability to Represent Claimants in Arbitration
SB 1384 amends Labor Code section 98.4 to allow the Labor Commissioner to represent employees who bring Labor Commissioner claims against their employers, in which the court has compelled arbitration, the employee is financially unable to represent themselves, and the Labor Commissioner determines that the claim has merit. The law also requires that a petition to compel arbitration be served on the Labor Commissioner. The bill was passed in response to the pervasive practice by employers of requiring employees to enter into arbitration agreements as a condition of employment. Employers should review their arbitration agreements, in order to be aware of the extent to which they compel Labor Commissioner claims to be arbitrated, in light of the chance that the Labor Commissioner could elect to represent the employee in that arbitration.
Minimum Wage Increases
As of January 1, 2021, California’s minimum wage increases to $14 for employers with 26 or more employees and $13 for employers with 25 or less employees. Employers should also be aware that local minimum wage increases may also apply and check their local rules regarding minimum wage requirements.
Takeaways
California workers and employers should always be mindful of the implications of changes in the law that go into effect at the beginning of the year. In preparation for the coming new year especially, employers are well advised to review existing operating practices and procedures with experienced legal counsel and employees should make sure they are aware of their workplace rights, in light of changes brought on by COVID-19 and other factors that influence employer-employee relations.
Naturally, this article is not intended to address the needs of all parties who will be impacted by new employment laws of 2021, but rather reflects a general overview of some of the most important changes that will soon take effect. The widespread impact of COVID-19 alone on local, state, and federal policy-making in 2020 has been unprecedented and will no doubt continue, making it important that employers and employees stay abreast of new changes in the law throughout the year.
The team of experienced employment attorneys at Thakur Law Firm, APC are dedicated to monitoring the legal environment for new legislation and court decisions that potentially impact the rights of our clients and ensuring that we can offer them the most practical and effective strategies for adapting to such changes. Do not hesitate to contact Thakur Law Firm, APC with any questions about the new laws discussed in this article or any other employment-related issues.
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