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  • Little girl visits her father in the hospital

    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.

  • podium

    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.

  • son and father enjoying family leave
    Update: Governor Newsom signed SB-1383 into law on September 17, 2020.

    On August 31, 2020, two minutes before the end of the 2019–2020 legislative session, the California Legislature passed Senate Bill 1383. SB 1383, if signed into law by Governor Gavin Newsom, will be a game-changer for the millions of California workers working for small employers who will become eligible for job-protected family and medical leave under the California Family Rights Act (“CFRA”).

    SB 1383 does two main things:

    1. It expands CFRA coverage to all employers with five or more employees, down from 50.
    2. It allows CFRA leave to be used to provide care for grandparents, grandchildren, siblings, parents-in-law, domestic partners, adult children, and children of domestic partners.

    We expect that Governor Gavin Newsom will sign the bill into law given his commitment to expanding paid family leave.

    This blog post discusses the changes to the CFRA created by SB 1383.

  • The Legislative Office Building in Sacramento

    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.

  • hands signing an employment agreement

    Update 1/7/2020: A federal district court has issued a temporary restraining order blocking enforcement of AB 51. A hearing is set in the case for January 10, 2020.

    Update 10/10/2019: Governor Newsom signed AB 51 into law today.

    The California Legislature is trying for a third time to protect workers from being forced to sign arbitration agreements. It passed Assembly Bill 51 (“AB 51”), which, if it becomes law, will: (1) prohibit employers from conditioning employment, continued employment, or any employment-related benefit on the applicant or employee waiving rights under the Fair Employment and Housing Act (“FEHA”) or the Labor Code, including the right to proceed in civil court; (2) prohibit employers from retaliating against an applicant or employee for refusing to waive employment-related rights; and (3) deem violations of these provisions as “unlawful employment practices” under the FEHA.

    AB 51 follows in the footsteps of two nearly identical bills that then Governor Jerry Brown vetoed in 2015 and 2018. In his September 2018 veto message for Assembly Bill 3080 (“AB 3080”), Governor Brown expressed his belief that the bill ran afoul of U.S. Supreme Court precedent and “plainly violate[d] federal law.” He believed that California was preempted from interfering with the formation of arbitration agreements.

    Proponents of the bill disagree with Governor Brown’s analysis and argue that AB 51 will survive judicial scrutiny. As reflected in AB 51’s bill analysis, they argue that it “simply gives the worker the option of whether or not to form the contract in first place,” and “nothing in AB 51 selectively calls out arbitration contracts . . . .”[1] They further contend that “[a]ll the bill does is say that an employee cannot be forced to sign an arbitration agreement, and if the employee elects not to, the employee cannot be retaliated against.”[2]

  • hands signing an employment agreement

    Over the past two years, we have followed the many bills that the California legislature has passed with the momentum of the #MeToo and #TimesUp movements.  From last year’s omnibus sexual harassment bill (SB 1300), to the prohibition of confidentiality provisions in settlement agreements involving sexual harassment claims (SB 820), to the increase in time that employees would have to file claims under the Fair Employment and Housing Act (AB 9), these bills have been designed to increase protections for California workers.

    Assembly Bill 749 (“AB 749”), introduced by Assemblymembers Mark Stone, Lorena Gonzalez, and Eloise Reyes, is another #MeToo-inspired bill meant to protect employees. It tackles “no rehire” provisions that are frequently found in settlement agreements. Employees who settle their claims against their employers are often required to agree that they will never again work for the same employer or its related entities. Such provisions are punitive and can have a devastating impact on an employee, forcing some to leave their field or severely limiting their future employment prospects. The use of “no rehire” provisions often leads to the perverse outcome where victimized employees are forced out of their jobs while harassers continue to be employed.[1]

    AB 749, signed into law by Governor Newsom on October 12, 2019, prohibits and invalidates all provisions in settlement agreements that prevent workers from obtaining future employment with the settling employer or its affiliated companies. Through newly created Code of Civil Procedure section 1002.5, it makes such provisions in agreements entered into on or after January 1, 2020 void as a matter of law and against public policy. The bill is co-sponsored by the California Employment Lawyers Association and Equal Rights Advocates.

  • Bottles of pumped milk

    Update 10/10/2019: Governor Newsom signed SB 142 into law today.

    On September 11, 2019, the California Legislature passed Senate Bill 142 (“SB 142”), which would significantly expand lactation accommodations and protections for working mothers. Among other things, SB 142 would: (1) clarify employer obligations to provide breaks to nursing/pumping mothers; (2) require employers to provide safe and sanitary lactation rooms for employees wishing to express milk; (3) increase penalties for non-compliance; (4) prohibit discrimination and retaliation against employees who exercise or attempt to exercise their right to lactation accommodations; and (5) require that employers implement lactation accommodation policies.

    SB 142 comes on the heels of last year’s Assembly Bill 1976 (“AB 1976”). AB 1976 required that employers “make reasonable efforts” to provide a lactation room other than a bathroom. Under SB 142, employers must provide such a room, subject to a limited undue hardship exemption.[1]

    Given Governor Gavin Newsom’s support for the expansion of paid family leave from six weeks to eight weeks, and his championing of increased worker protections, we are optimistic that he will sign SB 142 into law.

    WHAT DOES SB 142 DO?

    SB 142, introduced by Senator Scott Weiner (D-San Francisco) and principally co-authored by Assemblymember Lorena Gonzalez (D-San Diego), amends Labor Code sections 1030, 1031, and 1033 and adds section 1034. The amendments and additions, which are discussed below, significantly expand lactation accommodations and protections for working mothers.

  • Various workers standing together

    Governor Newsom has signed into law Assembly Bill 5 (“AB 5”), a landmark bill that will give millions of California workers job benefits and protections by limiting the circumstances under which employers can classify them as independent contractors. Unlike contractors, employees receive broad protections and benefits under California law—including Labor Code protections (minimum wage, overtime, meal and rest breaks, sick pay), unemployment and disability insurance, workers’ compensation, anti-discrimination law protections, and leave law rights.

    1.       What does AB 5 do?

    AB 5, authored by Assemblywoman Lorena Gonzalez (D-San Diego), codifies and expands the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court of Los Angeles (2018) 4 Cal.5th 903 (“Dynamex”). In Dynamex, the Supreme Court reaffirmed that all California workers performing services for hire are presumptively employees, and held that the proper test in determining whether a worker should be classified as an independent contractor for purposes of California wage orders is the “ABC” test. 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 . . . .

    (Id. at 955-56.)

    AB 5 extends the ABC test to apply to all claims brought under the Labor Code (not just to claims related to wage orders) and to claims for unemployment insurance. The bill has a number of carve-outs, discussed below.

  • Update 10/10/2019: Governor Newsom signed AB 9 into law today. AB 9 increases the time to file claims under the Fair Employment and Housing Act, Pregnancy Disability Leave Law, and California Family Rights Act from one year to three years. However, it does not revive previously lapsed claims.

    Last year, we outlined several bills that California legislators put forth in response to the momentum of the #MeToo and #TimesUp movements. While Governor Brown signed many of these bills into law, he vetoed several important ones. Among the legislation he vetoed was AB 1870, a bill that would have given more time to employees to file employment discrimination claims. Given AB 1870’s broad support, was resuscitated as AB 9. Like its predecessor, AB 9 sought to extend from one to three years the time that employees have to file an administrative complaint with the Department of Fair Employment and Housing—the first step before being able to file a lawsuit.

    Before delving into AB 9 and its impact, it is helpful to start with an overview of statutes of limitations and California’s administrative filing requirements for employment law claims.

  • Senate Bill 707 is directed at employers who force employees into arbitration then refuse to pay the fees

    Gavel over currency

    On May 28, 2019, the California Senate passed Senate Bill 707 (“SB 707”), otherwise referred to as the Forced Arbitration Accountability Act. SB 707 seeks to end an abusive tactic that employers use to deny their employees justice—forcing them to arbitrate their legal claims and then suspending the process by refusing to pay the arbitration fees. The bill would pull employees out of this legal limbo by giving them options that allow them to proceed with their cases despite employer non-cooperation. SB 707 also aims to examine the alarming lack of diversity in the arbitration industry. It would require arbitration service providers to collect and share demographic data about the self-reported ethnicity, race, disability, veteran status, gender, gender identity, and sexual orientation of all arbitrators, as California judges are required to do.

    1. OVERVIEW OF ARBITRATION

    To understand the potential impact of SB 707, it is helpful to start with an overview of arbitration.

    Arbitration is a form of private dispute resolution that takes place outside of the court system.  In arbitration, an arbitrator—often a retired judge or lawyer—acts as both the judge and jury and renders a decision, which is generally final and binding. Employers are increasingly requiring employees to sign arbitration agreements and waive their right to a jury trial as a condition of employment. According to estimates from the Economic Policy Institute and the Center for Popular Democracy, almost 83% or 95 million of the country’s private, non-unionized employees will be subject to arbitration by 2024. These arbitration agreements are often buried in the fine print of job applications, employment agreements, or employee handbooks, and employees often only learn that they have signed arbitration agreements after-the-fact.

    Arbitration generally favors employers. When employees are forced into arbitration, they are less likely to win their claims, and even when they do, they receive lower awards that employees who had jury trials.

    One reason for this is that employers get to choose the rules governing the proceedings. The rules often make the process less favorable to employees, including by restricting discovery, limiting appeal rights, and prohibiting class actions. Discovery is the process by which each side formally obtains information from the other, including depositions (in which a party’s lawyer can examine witnesses under oath), interrogatories (written questions), requests for admissions, and requests for production of documents. In cases where an employee must prove that an employer acted with wrongful intent or discriminatory bias, the lack of meaningful discovery (for example, being denied the ability to take a sufficient number of depositions) can be fatal to an employee’s claim. (In some states, employers also use the rules to shorten the time that employees have to file their statutory claims (the statute of limitations) and to restrict legal remedies; this is not permissible in California.)

    Another reason that the process favors employers is that . . .

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