With the New Year will come new laws that affect California employers. The following is the “A to Z” of changes in the law that may affect your business in 2020.
ABC Test for Determining Independent Contractor Status (AB 5)
AB 5 adopts the ABC test from the Dynamex v. Superior Court case as a way to determine whether workers are properly classified as employees or independent contractors. Under this test, workers in California are presumed to be employees under these laws, unless the business benefiting from the worker’s services can prove all three parts of the ABC Test: (A) The person is free from the control and direction of the hiring entity in connection with the performance of the
work, both under the contract for the performance of the work and in fact; (B) The person performs work that is outside the usual course of the hiring entity’s business; and (C) The person is customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed. The bill applies the ABC test to California Wage Orders, Labor Code, Unemployment Insurance Code, and, as of July 1, 2020, workers’ compensation laws will also fall within its purview. There are several broad categories of exceptions for certain occupations and industries. For further guidance, check out the Playbook developed by our Contingent Workforce practice team.
Ban of Mandatory Employment Arbitration Agreements (AB 51)
Under this new law, employers can no longer require employees or applicants to waive any right, forum, or procedure under the FEHA or Labor Code as a condition of employment. An employer cannot retaliate or threaten an employee who refuses to waive such rights. The law is effective January 1, 2020. For more details, review our in-depth blog post regarding AB 51.
Collection Notices (AB 25)
Beginning on January 1, 2020, the California Consumer Privacy Act (“CCPA”) will prohibit businesses and employers to collect an employee or consumer’s personal information unless they provide employees and consumers with a pre-collection notice informing them of the categories of personal information to be collected and the purposes for which the categories shall be used. For more details, review our Data Privacy Monitor blog post regarding the California Consumer Privacy Act.
Dependent Care Assistance Program: Notice to Employees (AB 1554)
This bill mandates employers to notify an employee who participates in a flexible spending account of any deadline to withdraw funds before the end of the plan year.
Extension of Statute of Limitations for FEHA Claims (AB 9)
AB 9 extends the statute of limitations from one year to three years for Department of Fair Employment and Housing (“DFEH”) complaints alleging discrimination under the Fair Employment and Housing Act (“FEHA”).
Flight Crew Medical Leave (AB 1748)
This new law amends California Government Code Section 12945.2 to conform to the Family Medical Leave Act (“FMLA”) service requirement for airline flight employees. Under this new law, flight deck and cabin crew members of air carriers will be eligible for protected leave under the California Family Rights Act (“CFRA”) if (1) they have worked or been paid for not less than 60 percent of the applicable total monthly guarantee or equivalent annualized over the proceeding 12 month period; and (2) they have worked or been paid for not less than 504 hours during the 12 months prior to their leave.
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Hairstyle Discrimination (SB 188)
This new law expands the definition of racial discrimination by barring employers from banning racially associated hairstyles.
Increased Stakes in Arbitration Agreements (SB 707)
Under SB 707, employers that fail to pay arbitration fees or costs in employment or consumer disputes within 30 days of fees being due are considered in default and in breach of the agreement. If an employer is in breach, penalties can be assessed, including ordering the arbitration back to a state or federal court.
Janitorial Workers: Harassment Prevention Training (AB 547)
This new bill requires the director of the Department of Industrial Relations to create an advisory committee to refine the recommendations on in-person sexual violence and harassment prevention training requirements for janitorial employers and employees.
Know Your Obligations under These Laws!!!
Lactation Accommodation (SB 142)
This bill requires an employer to provide a lactation room or location that is not a bathroom and that includes a seat, electricity and a surface to place a breast pump and personal items and that is in proximity to the employee’s workspace. There must also be access to refrigeration or a cooler and running water near the workspace.
More Power for the Department of Fair Employment and Housing (AB 1820)
This bill authorizes the DFEH to bring civil actions for violations of specified federal civil rights and antidiscrimination laws (e.g., Title VII, ADA, FEHA).
No more Restrictions on Domestic Partnerships (SB 30)
Existing law specifies requirements for entering into a domestic partnership, including that the domestic partners be either of the same sex or of the opposite sex and over 62 years of age. This bill removes the requirement that persons be of the same sex or of the opposite sex and over 62 years of age in order to enter into a domestic partnership.
Occupational Safety and Health: Reporting Requirements (AB 1805)
This law makes changes in the definition of “serious injury or illness” under California Labor Code Sections 6302 and 6309 by removing the 24-hour minimum time requirement as a prerequisite.
Prevention of Harassment Training (SB 530 & SB 778)
SB 530 mandates that the Department of Labor Standards Enforcement (DLSE) develop industry-specific harassment prevention policy and training standards and delays harassment prevention training for the construction industry until January 1, 2021. The bill also delays harassment prevention training for seasonal, temporary, or otherwise employees fired to work for less than six months to January 1, 2021.
SB 778 amends last year’s SB 1343 by changing the deadline for expanded training requirements of new employees on antiharassment state law guidelines to January 1, 2021. Training deadlines for supervisory employees are still in accordance with SB 1343.
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Reporting: Health Care Facilities (SB 322)
This new law provides health facility employees or their representatives the right to privately discuss possible regulatory violations or patient safety concerns with an inspector during an investigation or inspection by the California Department of Public Health. The law creates a rebuttable presumption of discrimination if the health facility takes any negative employment action against an employee within 120 days of filing a grievance or participating in an investigation related to the quality of care, services or conditions at the facility.
Settlement Agreements: No Preclusion of Future Employment (AB 749)
This new law (effective January 1, 2020) prohibits an employer from restricting a settling party from working for the employer in the future. The only exception is if the employer has made a good faith determination that the person engaged in sexual harassment or assault.
Teeing Up more Avenues for Penalties (AB 673 & 688)
In addition to existing penalties that an employee may recover for an employer’s failure to timely pay wages due, AB 673 authorizes employees seeking wages owed to bring an action to recover statutory penalties against an employer or to seek to enforce civil penalties under the Private Attorneys General Act (“PAGA”) – but not both.
AB 688 allows the Labor Commissioner to cite an employer’s failure to pay minimum wages under a contract. The law defines “contract wages” as wages based on an agreement in excess of the applicable minimum wage for regular, nonovertime hours.
Unemployment Insurance for Motion Picture Production Workers (SB 271)
SB 271 provides, for purposes of determining employment of a motion picture production worker when the service is not localized in the state but some of the service is performed in the state, that the worker’s entire service qualifies as employment if their residence is in the state.
Verification of Compliance
Need verification of compliance with these and California’s many other employment laws? We can do an audit for you!
When Do These Laws Take Effect?
While most take effect in 2020, some will not until 2020 or 2021, as noted.
Be sure to review your overtime calculations to ensure you are paying employees correctly.
Yes to Mental Health for Law Enforcement (SB 542)
This bill creates a rebuttable presumption that a mental health condition or diagnosis of post-traumatic stress or other mental health disorder is an occupational injury for law enforcement officers and firefighters. The presumption is only effective through January 1, 2025.
Zzzz…Don’t Fall Asleep Before You’ve Reviewed Your Practices and Policies!
For further information or questions about the information contained in this alert, please contact the authors or the Los Angeles attorneys of BakerHostetler’s Labor and Employment Group.