2020 has turned out to be another bumper year for employment legislation. The pandemic provided the impetus for the California legislature to expand family and medical leave to employees at smaller companies, fill in gaps with respect to supplemental paid sick leave, and enact a number of measures aimed at keeping employees safer at work. The California legislature also provided greater whistleblower protections, expanded employer reporting obligations, clarified the law with respect to employee misclassification, and expanded the Labor Commissioner’s powers. Below, we cover the top employment laws that were signed into law or vetoed this legislative session.

1.         Bills Signed Into Law

AB-323 — NEWSPAPERS: STATE AGENCY ADVERTISING: WORKER STATUS: INDEPENDENT CONTRACTORS.

• • Amends Labor Code § 2750.3:
    • Extends the exemption of specified newspaper distributors and newspaper carriers from the Dynamex/AB-5 ABC test by a year, to January 1, 2022.
    • Deletes the condition that a newspaper carrier work under contract either with a newspaper publisher or distributor.

AB-685 — COVID-19: IMMINENT HAZARD TO EMPLOYEES: EXPOSURE: NOTIFICATION: SERIOUS VIOLATIONS.

• Amends Labor Code § 6325:
  • Authorizes the Division of Occupational Safety and Health to shut down a place of employment, operation, or process it deems to constitute an imminent hazard to employees based on SARS-CoV-2 exposure—limited to immediate area where the imminent hazard exists.
    • The Division must provide a notice to the employer, which it would then be required to post.
    • Such a prohibition must be issued in a manner that does not materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.
    • This provision would be repealed on January 1, 2023.
  • On January 1, 2023, Labor Code § 6325 reverts back to the pre-AB-685 version.
• Adds Labor Code § 6409.6:
  • Requires employers who receive a notice of potential COVID-19 exposure to provide specified written notifications to employees, employers of subcontracted employees, as well as their exclusive representatives, within one business day.
    • Notices of potential exposure means:
      • Notification to the employer from a public health official or licensed medical provider that an employee was exposed to a qualifying individual at the worksite.
      • Notification to the employer from an employee that the employee is a qualifying individual.
      • Notification through the testing protocol of the employer that the employee is a qualifying individual.
      • Notification to an employer from a subcontracted employer that a qualifying individual was on the worksite of the employer receiving notification.
    • Required Notices:
      • Notice of exposure to employees who were on the premises at the same worksite within the infection period;
      • Notice regarding benefits (including workers’ compensation), options (including regarding COVID-19-related leave, company sick leave, state mandated leave, etc.), and anti-retaliation and antidiscrimination protections;
      • Notice regarding disinfection and safety plans per CDC guidelines.
    • Notice can be made via personal service, email, or text message, or some other means to be received within one business day.
    • Notice must be in both English and the language understood by the majority of employees.
    • Notification records must be kept for at least three years.
    • Civil penalties apply for violations.
  • Requires employers who have enough cases to constitute an “outbreak” to report certain information to report information to local public health agencies, including: the names, number, occupation, and worksite of employees deemed “qualifying individuals.”
  • “Qualifying individual” means any person who has any of the following:
    • (A) A laboratory-confirmed case of COVID-19, as defined by the State Department of Public Health.
    • (B) A positive COVID-19 diagnosis from a licensed health care provider.
    • (C) A COVID-19-related order to isolate provided by a public health official.
    • (D) Died due to COVID-19, in the determination of a county public health department or per inclusion in the COVID-19 statistics of a county.
  • Provides anti-retaliation protections for workers who disclose a positive COVID-19 test or diagnosis or order to quarantine or isolate. Workers may file a complaint with the Division of Labor Standards Enforcement pursuant to Section 98.6, which is then investigated as provided in Section 98.7.
  • Requires the State Department of Public Health to make certain information on outbreaks available on the web, and requires local public health departments to link to it.
  • Does not apply to health facilities, or to employees in certain health roles.
• Amends Labor Code § 6432:
  • Adds a subsection that provides that OSHA’s citation alleging a “serious violation” relating to SARS-CoV2 is exempt from the pre-citation standardized form provision and rebuttal at hearing provision of this Section.
  • This Section remains in effect until January 1, 2023, and then reverts to the pre-AB 685 section.

AB-1867 — SMALL EMPLOYER FAMILY LEAVE MEDIATION: HANDWASHING: SUPPLEMENTAL PAID SICK LEAVE.

• Adds Government Code Section 12945.21:
  • Provides that, before employees can pursue CFRA claims against small employers (5 to 19 employees), they must first engage in a small employer family leave mediation pilot program with the DFEH if requested by the employer.
  • Provides for the DFEH to create the program.
  • Sunsets on January 1, 2024.
• Adds Health and Safety Code § 113963:
  • Requires that food employees in food facilities be permitted to wash their hands every 30 minutes and additionally as needed.
• Adds Labor Code § 248:
  • Establishes “COVID-19 food sector supplemental paid sick leave” for food sector workers affected by COVID-19:
  • Supplemental paid sick leave enforced through the Labor Commissioner.
  • Expires the later of December 31, 2020 or upon expiration of the FFCRA emergency paid sick leave.
• Adds Labor Code § 248.1:
  • Establishes “COVID-19 supplemental paid sick leave” for covered workers who work for private employers with 500 or more employees.
  • Certain types of health care providers or emergency responders.
  • Enforced by the Labor Commissioner.
  • Expires the later of December 31, 2020 or upon expiration of the FFCRA emergency paid sick leave.
• $100,000 allocated to implement and enforce these provisions.
• Effective immediately upon being signed into law.

More on AB-1867 can be found in this blog post.

AB-1947 — EMPLOYMENT VIOLATION COMPLAINTS: REQUIREMENTS: TIME.

• Amends Labor Code § 98.7:
  • Extends the period of time to file retaliation complaints with the Labor Commissioner from six months to one year.
• Amends Labor Code § 1102.5:
  • Provides for reasonable attorneys’ fees to prevailing plaintiffs in § 1102.5 actions.

AB-2143 — SETTLEMENT AGREEMENTS: EMPLOYMENT DISPUTES.

• Amends Code of Civil Procedure § 1002.5:
  • Prohibition on no-rehire provisions requires “aggrieved person” covered to have filed the claim in good faith.
  • Exception applicable when employer has determined that the aggrieved person engaged in sexual harassment or sexual assault expanded to cover any criminal conduct, and requires determination to be documented before the employee files their claim.

 AB-2257 — WORKER CLASSIFICATION: EMPLOYEES AND INDEPENDENT CONTRACTORS: OCCUPATIONS: PROFESSIONAL SERVICES.

• Repeals Labor Code § 2750.3.
• Adds Labor Code § 2775 et seq.:
  • Business-to-business exception criteria modified.
  • Referral agency criterial modified.
  • Creates additional exemptions:
    • Recording artists and certain other music industry positions;
    • Musicians or musical groups for the purposes of single-engagement live performance events, with limitations;
    • Performance artists presenting original work, under certain circumstances;
    • Those providing underwriting inspections and certain insurance services;
    • Manufactured housing salespeople;
    • Those engaged by an international exchange visitor program;
    • Certain consulting services;
    • Animal services;
    • Competition judges with specialized skill;
    • Licensed landscape architects;
    • specialized performers teaching master classes;
    • Registered professional foresters;
    • Real estate appraisers and home inspectors; and
    • Data aggregators.
  • Exemption modified for services provided by still photographers, photojournalists, freelance writers, editors, videographers, and newspaper cartoonists.
• Makes conforming changes to tax law regarding determination of worker’s status as employee or independent contractor.
• Effective immediately as an urgency statute.

AB-2537 — PERSONAL PROTECTIVE EQUIPMENT: HEALTH CARE EMPLOYEES.

• Adds Labor Code § 6403.3:
  • Requires employers of workers in general acute care hospitals to supply employees providing direct patient care or services with the PPE necessary to comply with regulations.
  • Requires employers to ensure that employees use the PPE provided to them.
  • Requires such employers to maintain a three-month stockpile of PPE, including N95 respirators; powered air-purifying respirators with high efficiency particulate air filters; elastomeric air-purifying respirators and appropriate particulate filters or cartridges; surgical masks; isolation gowns; eye protection; and shoe coverings.
  • Requires the employers to provide the Division of Occupational Safety and Health with an inventory of the stockpile and copy of its written procedures upon request.
  • Employers may be assessed a civil penalty of up to $25,000 for each violation.
  • Requires general acute care hospitals, on or before January 15, 2021, to be prepared to report to the DIR, under penalty of perjury, its highest 7-day consecutive daily average consumption of PPE during the 2019 calendar year, with exemptions.
  • Requires covered employers to establish and implement effective written policy to periodically determine the quantity and types of PPE used.

AB-2588 — EDUCATIONAL PROGRAMS AND TRAINING: COSTS: EMPLOYEES AND APPLICANTS PROVIDING DIRECT PATIENT CARE.

• Adds Labor Code § 2802.1:
  • Provides that expenses/costs related to employer-provided or employer-mandated educational programming or training for general acute care hospital employees providing patient care constitutes a necessary expenditure requiring employer reimbursement.

AB-2723 — CIVIL ACTIONS: ENTRY OF JUDGMENT: WRITTEN STIPULATION.

• Amends Code of Civil Procedure § 664.6:
  • Allows attorneys and designated insurance agents of an insurance company can sign settlement agreements on behalf of parties, and to request that a court retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
  • Provides than an attorney who signs a settlement agreement on behalf of a party without their express authorization shall, absent good cause, be subject to professional discipline.

AB-2992 — EMPLOYMENT PRACTICES: LEAVE TIME.

• Amends Labor Code § 230:
  • Expands Section’s protections to cover not just victims of domestic violence, sexual assault, and stalking, but other victims of serious crime or abuse.
  • Allows the employee to provide certification that time off was taken for covered reasons through “any other form of documentation that reasonably verifies that the crime or abuse occurred, including but not limited to, a written statement signed by the employee, or an individual acting on the employee’s behalf, certifying that the absence is for a purpose authorized under this section or under Section 230.1.”
• Amends Labor Code § 230.1:
  • Expands Section’s protections to cover not just victims of domestic violence, sexual assault, and stalking, but other victims of serious crime or abuse.
  • Expands categories of permissible time off.

AB-3075 — WAGES: ENFORCEMENT.

• Adds Labor Code § 203:
  • Provides that a successor to a judgment debtor shall 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.
  • Successorship is established upon meeting any of the following criteria:

(1)  Uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor.

(2) Has substantially the same owners or managers that control the labor relations as the judgment debtor.

(3) Employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor.

(4) 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 judgment debtor.

• Amends Labor Code § 1205:
  • Provides that local jurisdictions may enforce state labor standards requirements regarding the payment of wages, and may exercise local police powers in a more stringent manner.
• Amends Corporations Code § 1502:
  • Beginning January 1, 2022, or sooner as implemented, a Statement of Information filed with the Secretary of State must indicate whether any officer or any director has an outstanding final judgment issued by the Division of Labor Standards Enforcement or a court of law, for which no appeal therefrom is pending, for the violation of any wage order or provision of the Labor Code.
• Amends Corporations Code § 2117:
  • Requires foreign corporations filing statements with the Secretary of State to include a statement indicating whether any officer or any director has an outstanding final judgment issued by the Division of Labor Standards Enforcement or a court of law, for which no appeal therefrom is pending, for the violation of any wage order or provision of the Labor Code.
• Amends Corporations Code § 17702.09:
  • Requires every limited liability company to include in its statements to the Secretary of State a statement indicating whether any officer or any director has an outstanding final judgment issued by the Division of Labor Standards Enforcement or a court of law, for which no appeal therefrom is pending, for the violation of any wage order or provision of the Labor Code.

SB-275 — HEALTH CARE AND ESSENTIAL WORKERS: PERSONAL PROTECTIVE EQUIPMENT.

• Among other things, adds Labor Code § 6403.1:
  • Provides that health care employers, as defined, must maintain an inventory of unexpired PPE.
  • Beginning January 1, 2023, or 365 days after regulations adopted, covered employers shall have an inventory of at least 24 days of surge consumption.
  • Provides for a civil penalty for health care employers who violate this requirement.

SB-973 — EMPLOYERS: ANNUAL REPORT: PAY DATA.

• Amends Government Code § 12930:
  • Authorizes the DFEH to receive, investigate, conciliate, mediate, and prosecute claims related to unequal pay based on gender or race.
  • Provides that the DFEH shall, in coordination with the DLSE and DIR, adopt procedures to ensure that the departments coordinate activities to enforce Section 1197.5 of the Labor Code.
• Adds Government Code § 12999 et seq.:
  • Requires private employers with 100 or more employees to submit EEO-1 pay data to the DFEH on or before March 31, 2021 and annually thereafter.
  • Provides for the EDD to provide the DFEH with the names and addresses of all businesses with 100 or more employees.

SB-1146 — CIVIL PROCEDURE: ELECTRONIC FILING, TRIAL DELAYS, AND REMOTE DEPOSITIONS.

Emergency-related modifications to the Code of Civil Procedure, including:

• Adds Code of Civil Procedure § 599:
  • Temporarily providing that continuance or postponement of a trial date extends all associated deadlines that had not already passed as of March 19, 2020, for the same length of time as the continuance/postponement.
• Amends Code of Civil Procedure § 1010.6:
  • Requires a party represented by counsel, who has appeared in an action or proceeding, to accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.
  • Require a party represented by counsel, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address, to electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.
• Amends Code of Civil Procedure § 2025.310:
  • Provides that a deponent or deposing party can elect to have the deposition officer attend the deposition by remote electronic means, in a different location than the deponent.
  • Provides that any party or attorney of record may, but is not required, to be present with the deponent.

SB-1383 — UNLAWFUL EMPLOYMENT PRACTICE: FAMILY LEAVE.

• Amends Government Code Section 12945.2:
  • The CFRA will apply to California employees who work for companies with five or more employees, down from 50.
  • Expands the types of family members for whom an employee can take job protected leave to provide care to include grandparents, grandchildren, siblings, parent-in-laws, domestic partners, children of domestic partners, and adult children (in addition to parents, minor and adult dependent children, and spouses.)
  • Deletes the CFRA “key employee” exception, which previously provided that an employer could refuse to reinstate an employee returning from CFRA leave under the following circumstances:
    • The employee is a salaried employee and is among the highest paid 10 percent of employees within 75 miles of the employees worksite;
    • The refusal to reinstate the employee is necessary to prevent substantial and grievous economic injury to the operations of the employer;
    • The employer notifies the employee of its intent to refuse reinstatement at the time it determines the refusal is necessary; and
    • The employee was given a reasonable opportunity to return following the notice, but did not do so.
  • Deletes the CFRA section that previously provided that, when both parents of a child work for the same employer, the employer is not required to give more than 12 weeks to both parents combined.
• Amends (and repeals) Government Code § 12945.6:
  • New Parent Leave Act repealed as greater protections now provided by the CFRA.

More on SB-1383 can be found in this blog post.

SB-1384 — LABOR COMMISSIONER: FINANCIALLY DISABLED PERSONS: REPRESENTATION.

• Amends Labor Code § 98.4:
  • Allows Labor Commissioner to represent an employee in a de novo proceeding, whether in court or in arbitration, upon the Commissioner’s determination that the claim has merit and that the employee is financially unable to afford counsel.
  • Requires that a petition to compel arbitration of a claim pending under § 98, 98.1, or 98.2 be served on the Labor Commissioner, which can represent the claimant in a proceeding to determine the enforceability of the arbitration agreement.

2.         Bills Vetoed by the Governor

AB-1066 — UNEMPLOYMENT COMPENSATION: BENEFITS PAYABLE: COLLECTION.

• Would amend Section 1093 of the Unemployment Insurance Code:
  • If an employer fails to provide the EDD with requested employment records needed to make an unemployment insurance benefits determination within 10 days, the employee will be entitled to the maximum benefit payable.
  • However, the director can determine, based on the evidence, that the claimant is entitled to a lesser amount.
  • The 10-day deadline can be extended based on the director’s determination of good cause.
• Would add Section 1120 to the Unemployment Insurance Code:
  • The EDD can delegate to the Attorney General the ability to recover and collect contributions, plus interest and penalties, owed by employers issuing 500 or more IRS W-2 or 1099-NEC forms with five or more persons claiming unemployment benefits.

AB-1066 veto message here.

AB-3216 — UNEMPLOYMENT: REHIRING AND RETENTION: STATE OF EMERGENCY.

• Would add Labor Code § 2810.8:
  • Provides specified employers (hotel, event centers, private clubs, certain airport employers, and building services) are required to provide certain laid-off employees with notice of open positions and preferential hiring when positions become available, and provides for certain job protections when ownership changes, including for preferential hiring and retention.

AB-3216 veto message here.

SB-1102 — EMPLOYERS: LABOR COMMISSIONER: REQUIRED DISCLOSURES.

• Would amend Labor Code § 2810.5:
  • Provides that information that employer provides new hires in written notice include: The existence of either a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed and that was issued within 30 days prior to the employee’s first day of employment, that may affect their health and safety during their employment.
• Would add Labor Code § 2810.6:
  • Creates “The California Legal Rights Disclosure Act for H-2A Farmworkers,” which requires that certain information be disclosed to H-2A workers on their first day of work, in Spanish and if requested also in English, including information regarding applicable federal or state emergency or emergency disaster declarations, and rights under state and federal law, including wage and hour, safety, and anti-retaliation protections.
• Would add Labor Code § 2810.6:
  • Lays out circumstances under which an employer is exempt from providing compensation for time spent being transported by the employer from employer-provided housing to a worksite.

SB-1102 veto message here.

SB-1257 — EMPLOYMENT SAFETY STANDARDS: HOUSEHOLD DOMESTIC SERVICES.

• Would amend Labor Code § 6303:
  • Brings household domestic employees within the protections of the California Occupational Safety and Health Act of 1973.
  • Exempts household domestic service that is publicly funded.
• Would amend Labor Code § 6314:
  • Specifies how investigations of household domestic employers may be conducted.
• Would add Labor Code § 6305.1:
  • Provides for an advisory committee to make findings and recommendations regarding industry-specific regulations related to household domestic service.

SB-1257 veto message here.

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Photo credit: “The Legislative Office Building, Sacramento” by Tony Webster is licensed under CC BY-SA 2.0