With a Democratic supermajority in the California legislature and a Democratic governor (who survived a recall election), 2021 brings another slew of employment law bills that expand employee protections.

DISCRIMINATION AND HARASSMENT

SB 331 – “Silenced No More” Act – Non-Disclosure Agreements

The most important bill from this legislative session is SB 331, also known as the Silenced No More Act. SB 331 expands the protections created in 2018 by the Stand Together Against Non-Disclosures (STAND) Act (SB-820) and omnibus sexual harassment bill SB 1300. Those bills targeted attempts by employers to silence employees who have been sexually harassed or subjected to discrimination or retaliation based on sex. SB 331 ensure that these same protections apply to all employees subjected to discrimination, harassment and retaliation. It expands protections to claims based on all protected categories covered by the Fair Employment and Housing Act (FEHA), including race, religion, disability, age, veteran status, etc.

The STAND Act added Code of Civil Procedure Section 1001. Section 1001 prohibits confidentiality provisions in settlement agreements involving civil or administrative actions that state a cause of action for: sexual assault; workplace harassment or discrimination based on sex; failure to prevent workplace harassment or discrimination based on sex; sexual harassment in a business, service, or professional relationship; and sex discrimination, harassment, or retaliation by the owner of a housing accommodation.

SB 331 amends C.C.P. § 1001 to expand the prohibition on non-disclosure agreements to encompass claims of discrimination, harassment, or retaliation based on any protected category covered by the FEHA (not just those based on sex). This expanded prohibition applies to agreements entered into on or after January 1, 2022. SB 331 clarifies that C.C.P. § 1001 prohibits provisions that prevent or restrict the disclosure of such information.

SB 1300 had added Government Code § 12964.5, which made it unlawful for an employer, in exchange for a raise or bonus, or as a condition of employment or continuing employment, to: (1) require employees to sign a release of claim or right under the FEHA, or (2) to require employees to sign a nondisparagement agreement that gags employees from disclosing information about sexual harassment and other unlawful acts.

SB 331 amends Government Code § 12964.5 as follows:

After years of advocacy to raise the minimum wage, all California workers can look forward to a $15 an hour minimum wage by January 1, 2023.

While the federal minimum wage of $7.25 per hour has not changed in over a decade, states, counties, and cities all have the ability to set a minimum wage. Below, we summarize the minimum wages set by the State of California, Los Angeles City and County, and other cities within Los Angeles County. Employees are entitled to the highest applicable minimum wage.

State of California

The State minimum wage will rise $1 per hour on January 1 of each year until it reaches $15 per hour for both small and large employers in 2023. Further details (including regarding the rare exceptions) can be found on the Labor Commissioner’s website.

City of Los Angeles and Unincorporated Areas of Los Angeles County

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.

UPDATE: On March 19, 2021, SB 95 was signed into law, which provided COVID-19 supplemental paid sick leave (SPSL) for certain covered employees who were unable to work due to COVID-19, including due to quarantine requirements. SB 95 was applied retroactively to January 1, 2021 and was in place until September 30, 2021.

Last week, on September 9, Governor Newsom signed AB-1867 into law. AB-1867, effective immediately, makes sure that all California employees are eligible for COVID-19-related supplemental paid sick leave (“SPSL”) by filling in the gaps lefts by the federal Families First Coronavirus Response Act (“FFCRA”). The FFCRA provides for 2 weeks of COVID-19-related paid sick leave for eligible employees. However, it only applies to employers with fewer than 500 employees. It further allows employers of certain health care providers or emergency responders to elect to exempt them from FFCRA protections. In fact, it is estimated that the FFCRA leaves out up to 80% of the workforce.

On September 25, 2020, Ramit Mizrahi will be speaking about recent California employment law legislation at the California Lawyers Association’s 2020 Virtual Annual Meeting.

Here are the details:

California Employment Law Legislative Update

Description: From a sea change in the legality of contract labor requirements to special issues around remote working and the need for workplace safety in the COVID-19 pandemic, 2020 has shaped up to be an exciting year for employment law. Our panelists will provide employee and management-side perspectives on the newly passed California employment laws and other developments, and the impact they will have on workplaces, including an update on the ever-changing landscape of AB-5 changes to contract labor requirements.

2019 has turned out to be a bumper year for employment legislation. The continued influence of the #MeToo movement can be seen in the number of bills meant to protect employees who have suffered harassment, discrimination, and retaliation. The California Legislature also targeted arbitration abuse, worker misclassification, and other wage and hour law violations. Below, we cover the top employment laws that were signed into law or vetoed this legislative session.

1.         Bills Signed Into Law

AB 5 — Dynamex codification; independent contractors

• Codifies the Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 “ABC” test to determine whether a worker is an independent contractor or employee, with specified statutory exemptions. Under this test, an employer seeking to classify a worker as an independent contractor bears the burden of establishing:
  

  (A) that the worker 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) that the worker performs work that is outside the usual course of the hiring entity’s business, and (C) that the worker is customarily engaged in an independently established trade, occupation, or business. . . .

• Applicable retroactively to all claims under Labor Code related to Wage Orders; prospectively to all other Labor Code claims. Applicable prospectively with respect to unemployment insurance.
• Contains numerous statutory exemptions, which apply retroactively. In these circumstances, apply the test laid out in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.
• Prohibits employees from reclassifying existing employees as independent contractors.

More on AB 5 can be found in this blog post.

AB 9 — Increases Time to File Employment Discrimination Claim

• Gives employees more time to bring employment discrimination claims (including harassment and retaliation claims) by extending the deadline to file a verified complaint with DFEH for employment discrimination claims from one to three years.
• Date of verified complaint relates back to filing of intake form with the DFEH.

More on AB 9 can be found in this blog post.