Third, AB 2143 clarifies that the prohibition against “no-rehire” provisions in settlement agreements does not apply where the former employee did not file their complaint in good faith. Additionally, musicians and vocalists who do not receive royalties are to be treated as employees for purposes of receiving minimum wages and overtime. Effective January 1, 2021, and until January 1, 2023, the Division of Occupational Safety and Health will have the authority to determine whether a worksite or any part thereof exposes workers to COVID-19 such that it creates an “imminent hazard.” In response to an “imminent hazard,” it may prohibit operations at or entry to that worksite at the immediate area in which the hazard exists by posting a notice to the employer in a conspicuous place. Dear Employers: Thank you for visiting our website and for your interest in updating your company information. Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter. Larger employers previously covered by the CFRA and smaller employers complying with CFRA for the first time should take note of the change to the definition of “family members,” which now includes a child, parent, grandparent, sibling, spouse, or domestic partner. Since the CFRA provides time off for employees to care for a wider group of family members than the FMLA, CFRA leave will not always run concurrently with FMLA leave. Also, employers with five or more employees are required to notify their claims administrators within three business days when they know, or reasonably should know, that an employee has tested positive for COVID-19. An employer must retain a record of the written notice for at least three years. Global Mobility in a COVID-19 World – Key Employment and Tax... FDA Guidance: Use of “Potassium Salt” as an Alternate Name for “... Have UK Insolvency Practitioners Lost the Protection of Release... RCEP: Boosting Value Chains and Facilitating Trade Flows. UK Regulatory Capital/Prudential Rules: FCA Publishes First... Court Holds That Insurers Do Not Generally Owe Fiduciary Duties To... 2021 Minimum Wage Increases Set to Take Effect. These new requirements are in addition to the requirements enacted last year, requiring female representation on such corporate boards, set forth in California Corporations Code section 301.3, as detailed in our firm’s alert from last year. AB 5 represented a significant change in California law and received concerted pushback and litigation from many industries, including the publishing and entertainment industries, trucking industry, and the “gig” economy, whose workers have traditionally been classified as independent contractors. UK Supreme Court on Law Governing the Arbitration Agreement (Enka v.... FDA Proposes Revocation of Frozen Cherry Pie Standards of Identity... Supreme Court to Weigh in College Sports: The Intersection of... Allen Matkins Leck Gamble Mallory & Natsis LLP, New York State, Modified New York City Sick and Safe Leave Obligations Fully Effective January 1. In addition, employers are prohibited from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from such disclosures or participation. The provision is not to be used in a manner that would interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water. Stephanie has successfully represented high-profile clients and examined key fact witnesses at trial; defended depositions of fact and expert witnesses; briefed and prepared arguments in connection with a variety of motions and trial briefs; and prepared fact and expert witnesses for trial. She defends employers in matters involving harassment, discrimination, retaliation, wrongful termination, wage and hour, and whistleblower claims. A corporation may increase the number of directors on its board to comply with this new law. Labor Code section 1102.5 broadly prohibits whistleblower retaliation. The provision is not to be used in a manner that would interrupt the performance of critical government functions essential to ensuring public health and safety functions or the delivery of electrical power or water. The main changes that AB 2257 makes are (1) modifying and clarifying the business-to-business, referral agency, and professional services exemptions set forth in AB 5; and (2) exempting additional occupations and business relationships. As of January 1, 2021, AB 1947 makes two significant changes to existing laws: (1) revising Labor Code section 98.7 to increase the time to file a complaint with the Division of Labor Standards Enforcement from six months to one year; and (2) authorizing courts to award reasonable attorneys’ fees to plaintiffs who bring successful retaliation claims under Labor Code section 1102.5. This ballot initiative was presented to California voters as Proposition 22. However, the new CFRA (SB 1383) expands the scope and requires compliance employers with five or more employees and also eliminates the requirement that employees work within 75 miles of the same worksite. Employers covered by the expanded CFRA are required to provide unpaid, job-protected leave of up to 12 weeks during each 12-month period for employees to bond with a new child of the employee or to care for themselves or a family member with a serious medical condition. Specifically, AB 3075 adds Section 200.3 to the Labor Code and provides that a "successor" to a judgment debtor will 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.". AB 5 (Section 2750.3 of the Labor Code) was signed into law on September 18, 2019, by Governor Gavin Newsom. AB 2143 slightly amends this law in three ways: First, AB 2143 clarifies that, in order to qualify for the current “no-rehire” exception related to sexual harassment or sexual assault, the employer must have made “and documented” a good faith determination, “before the aggrieved person filed the claim,” that the former employee engaged in sexual harassment or sexual assault. It also requires companies to develop anti-discrimination and sexual harassment policies; training programs for drivers related to driving, traffic, accident avoidance, and training programs recognizing and reporting sexual assault and misconduct. Prior to joining Allen Matkins, Jeffrey was an associate at Paul Hastings in the Employment Litigation Department, where he assisted with various matters including, class actions and PAGA wage and hour cases.  His experience also includes an internship with Hon. AB 685 (Chapter 84, Statutes of 2020) is a California law signed by Governor Gavin Newsom on September 17, 2020. The notice can be provided in any manner that is likely to be received (e.g.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.Â. PFAS Under Biden Administration – Change Is Coming. ); and. Round Two - FDA Issues Emergency Use Authorization for Moderna’s COVID-19 Vaccine, Administration of Coronavirus Vaccines May Raise Constitutional Issues, FinCEN Announces Proposed Rule Aimed at Closing Anti-Money Laundering Regulatory Gaps for Certain Convertible Virtual Currency and Digital Asset Transaction, Global Mobility in a COVID-19 World – Key Employment and Tax Considerations, FDA Guidance: Use of “Potassium Salt” as an Alternate Name for “Potassium Chloride” in Food Labeling. The ballot initiative also includes zero-tolerance policies for driving under the influence of drugs or alcohol, and requires criminal background checks for drivers. In a Busy Year of Health Care Antitrust Enforcement, DOJ’s First... California Expands the California Family Rights Act (CFRA). This exemption now includes services provided by a still photographer, photojournalist, videographer, or photo editor who works under a written contract that specifies the rate of pay and time of payment. Failure to understand and adapt to the changes in worker classification law can expose California employers to significant risk, including the collection of unpaid wages and back taxes, civil penalties, and civil (and potentially class action) litigation. By December 31, 2022: (i) such corporations with five to eight directors must have at least two directors from underrepresented communities; and (ii) such corporations with nine or more directors must have a minimum of three directors from underrepresented communities. Some of the significant exemptions that AB 2257 creates or amends are set forth below. The first category mirrors the federal EEO-1 and requires employers to report the number of employees by race, ethnicity, and gender in 10 federally identified job categories: executive or senior-level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers. The strict three-prong “ABC” test presumes that all workers are employees, and places the burden on the hiring business to establish the following factors in order to classify a worker as an independent contractor: (A) the worker is free from the control and direction of the hirer in connection with the performance of the work; (B) the worker performs work that is outside the usual course of the hiring entity’s business; and (C) the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. “Single-Engagement” Business-To-Business Exemption:  AB 2257 creates an exemption for a “stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week” as long as the worker has “control and direction” over the work, mutual freedom to negotiate the rate of pay, a written contract that specifies the pay rate, the tools and materials are provided by the worker, and both the hiring and performing entities maintain separate business locations. (Section 1102.5 also prohibits retaliation because the employer believes that the employee disclosed or may disclose such information or because the employee is a family member of a person who has, or is perceived to have, made such disclosures. Arbitration Arbitration Agreements as a Condition of Employment (AB 51). Fifth Circuit Reminds Employers of the Importance of Contemporaneous... Ontario Government Passes Regulation to Create Flexibility in the... PTAB Provides Precedential Decisions Weighing Fintiv Factors. Use e-Services for Business to register for your employer payroll tax account number. The new CFRA further adds a qualifying exigency reason for use similar to FMLA. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). CCP 1002.5 does not apply to standard severance agreements; only to settlement agreements when an employee has filed a claim against the employer in court, before an administrative agency, or through some form of ADR or employer internal complaint process. Read more in last year's alert. However, film and television unit production crews, still photographers and cinematographers, are not exempt. Employers may be subject to citations and/or penalties for failure to comply with these requirements. Specifically, § 1102.5 prohibits employers from retaliating against an employee for: Under existing law, the consequences of a violation were already significant, but are increased with this amendment. In addition, employers are no longer permitted to refuse reinstatement to salaried employees who are among the highest 10% of the employees at the company and where the refusal is necessary to prevent substantial and grievous economic injury. The law does not specify whether this figure is limited to California employees or includes employees outside of California. Statement in compliance with Texas Rules of Professional Conduct. Employers may be served an IWO by a California local child support agency, by another state’s child support agency, or by a private party. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. These new requirements are in addition to the requirements enacted last year, requiring female representation on such corporate boards, set forth in California Corporations Code section 301.3, as detailed in our firm’s alert from last year. (iv) operates a business in the same industry as the judgment debtor 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. CFRA no longer has a provision permitting employers to provide fewer than 12 weeks for leave in connection with the birth, adoption, or foster care placement of a child if both parents work for the same employer. Also beginning January 1, 2021, and until January 1, 2023, if OSHA alleges that there has been a “serious violation” due to COVID-19, it need not deliver to the employer a standardized form containing the alleged violation descriptions prior to issuing its citation as would otherwise be required. In response to some of these concerns, the California Legislature enacted AB 2257, which amended AB 5 and created additional exemptions for certain occupations and contractual relationships. e-Services for Business also fulfills the e-file and e-pay mandate and is a fast, easy, and secure way to manage your payroll tax account online 24 hours a day, 7 days a week. This law: Requires employers to notify employees who may have been exposed to COVID-19 and to report workplace outbreaks to the local health department. Under Labor Code section 98.7, the Division of Labor Standards Enforcement (DLSE) has jurisdiction to investigate complaints of discharge or discrimination in violation of any law within the jurisdiction of the DLSE. personal service, email, or text message) and that is typically used for communicating with the employee. These policies provide workers with minimum compensation levels, health insurance subsidies, medical costs for on-the-job injuries, and prohibits drivers from working more than 12 hours in a 24-hour period unless the driver has been logged off for 6 uninterrupted hours. Under Labor Code section 98.7, the Division of Labor Standards Enforcement (DLSE) has jurisdiction to investigate complaints of discharge or discrimination in violation of any law within the jurisdiction of the DLSE. Some positions that are generally exempt include: recording artists; songwriters, lyricists, composers, and proofers; managers of recording artists; record producers and directors; musical engineers, mixers, and musicians engaged in the creation of sound recordings; vocalists; and independent radio promoters. d. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). Currently, California Code of Civil Procedure Section 1002.5, which went into effect on January 1, 2020, prohibits “no-rehire” provisions in settlement agreements, i.e., provisions that prevent, or otherwise restrict an employee from obtaining future employment with the employer or any related entity. Any employee may file a workers’ compensation claim for COVID-19 with causation to be determined in due course. This expanded definition of the term “family member” is important because it is broader than the definition under the federal Family and Medical Leave Act (FMLA). 3. In addition to the above, as of January 1, 2021, employers will have reporting requirements if they are notified that the number of cases at their worksite meets the definition of a “COVID-19 Outbreak” as defined by the State Department of Public Health. (i) uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (ii) has substantially the same owners or managers that control the labor relations as the judgment debtor; (iii) employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor; and. Under existing law, individuals have six months to make complaints to the DLSE. (Section 1102.5 also prohibits retaliation because the employer believes that the employee disclosed or may disclose such information or because the employee is a family member of a person who has, or is perceived to have, made such disclosures. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. New Year — New Laws! The ballot initiative also includes zero-tolerance policies for driving under the influence of drugs or alcohol, and requires criminal background checks for drivers. 2021 California Labor Law Updates Employers Need To Know. An employer must retain a record of the written notice for at least three years. CCP 1002.5 does not apply to standard severance agreements; only to settlement agreements when an employee has filed a claim against the employer in court, before an administrative agency, or through some form of ADR or employer internal complaint process. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. It also requires companies to develop anti-discrimination and sexual harassment policies; training programs for drivers related to driving, traffic, accident avoidance, and training programs recognizing and reporting sexual assault and misconduct. However, the core of AB 5 remains unchanged. Stephanie Elder is a litigation associate in the firm’s Los Angeles office. Currently, California Code of Civil Procedure Section 1002.5, which went into effect on January 1, 2020, prohibits “no-rehire” provisions in settlement agreements, i.e., provisions that prevent, or otherwise restrict an employee from obtaining future employment with the employer or any related entity. Mandatory or Voluntary Employee Vaccinations: EEOC Weighs In, Indian Pharmaceutical and Medical Device Regulation 101 [PODCAST]. The employer must report: The employer will be required to continue notifying the local health department of any subsequent laboratory-confirmed cases of COVID-19 at the workplace. The main changes that AB 2257 makes are (1) modifying and clarifying the business-to-business, referral agency, and professional services exemptions set forth in AB 5; and (2) exempting additional occupations and business relationships. Law Firms: Be Strategic In Your COVID-19 Guidance... [GUIDANCE] On COVID-19 and Business Continuity Plans. Under California law, employees have extensive privacy rights in their medical information. In response, Uber, Lyft, DoorDash, InstaCart, and Postmates spent more than $200 million in lobbying efforts for a ballot initiative that would override AB 5 and AB 2257, and classify drivers as independent contractors. AB 2257 also adds translators, copy editors, and illustrators to this exemption provided that work is performed under a contract that specifies the rate of pay, time of payment, and intellectual property rights. Employers may be subject to citations and/or penalties for failure to comply with these requirements. Also, employers with five or more employees are required to notify their claims administrators within three business days when they know, or reasonably should know, that an employee has tested positive for COVID-19. Due to this classification, California’s employment and labor laws (and protections) do not apply to app-based drivers. © 2010-2020 Allen Matkins Leck Gamble Mallory & Natsis LLP, National Law Review, Volume X, Number 345, Public Services, Infrastructure, Transportation, MI Legislature OKs Pay to College Athletes for Use of Name/Likeness, Trouble in New Mexico for a Company and Its Officer. A corporation may increase the number of directors on its board to comply with this new law. Stay tuned as to how this litigation turns out and the impact on arbitration agreements in California. The bill takes effect on January 1, 2021. Stay tuned as to how this litigation turns out and the impact on arbitration agreements in California. When a presumption is applicable under this section, an employer has only 45 days after the claim form is filed to deny the claim (as opposed to the typical 90 days) and otherwise may only rebut the presumption with evidence obtained after that 45 day period. As a result, employees may be eligible to take as much as 24 weeks of combined leave under the CFRA and FMLA depending on the reason for the leave. However, there are no other carve-outs. Accordingly, hiring businesses who wanted to classify a worker as an independent contractor had the burden of establishing that the worker either (1) fell under one of the exemptions set forth in AB 5; or (2) could meet each element of the stringent “ABC” test, set forth in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal. The bill seeks to prevent employers from evading unpaid wage and hour judgments by discontinuing the judgment debtor entity, only to form a new business entity that is substantially similar to the prior entity. AB 979 defines a "publicly-held corporation" as a corporation with outstanding shares listed on a major United States stock exchange and creates a timeline by which a minimum number of directors from underrepresented communities must be achieved. Labor Code section 1102.5 broadly prohibits whistleblower retaliation. Some of the significant exemptions that AB 2257 creates or amends are set forth below. The executive order applied to dates of injury from March 19, 2020, through July 5, 2020. SEC Adopts Final Resource Extraction Disclosure Rules; Duplicative... Florida Receives EPA Approval to Assume Clean Water Act Section 404... TCPA NIGHTMARE: Court Grants $122k Summary Judgment Against Debt... CFTC Extends Temporary No-Action Relief From Trade Execution... Ontario Government Extends COVID-19 Period Until July 3, 2021. “EEOC Explore” Tool Launched to Provide Greater Transparency and... Brexit and Its Effect on European Union Trademarks. Under AB 5 only the Attorney General and certain city attorneys were able to seek such relief. On September 17, 2020, Governor Newsom signed into law SB 1159, which codified parts of his prior executive order establishing a rebuttable presumption of compensability for some employees who receive a COVID-19 diagnosis. Specifically, § 1102.5 prohibits employers from retaliating against an employee for: disclosing a violation of state or federal law or a violation of or noncompliance with a local, state, or federal rule, or regulation to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting the investigation, hearing or inquiry. The specific place of employment is ordered closed by a local health department, the State Department of Health, the Division of Occupational Safety and Health, or a school superintendent due to the risk of infection of COVID-19. In this article, we highlight some of these new changes that may affect your business: AB 5: Employee v. Independent Contractor: Enter the ABC Test. California and the federal government are providing broad assistance to small businesses and employers impacted by COVID-19. Such complaints can lead to an investigative hearing and remedial action (e.g., rehiring or reinstatement, reimbursement of lost wages, penalties). Indeed, cases have been brought by California truckers, freelance journalists, and gig economy businesses challenging the application of AB 5 to their industries and the constitutionality of the law itself. 5th 903 (Dynamex). The second category requires employers to report the number of employees by race, ethnicity, and gender whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey, which ranges from a low of “less than $19,239” to a high of “more than $208,000” based on W-2 wages. Jeffrey G. Briggs is an associate in our San Francisco office and a member of our Labor & Employment group.  Jeffrey advises employers on a wide variety of employment matters.Â. In September 2019, the California Legislature passed AB 5 which overhauled California law with respect to independent contractor relationships. The bill takes effect on January 1, 2021. This bill applies to dates of injury after July 5, 2020, and will be in effect until January 1, 2023. Current law, however, does not provide for recovery of attorneys’ fees. Save Time and Register Online. Ranging from Covid-19 legislation to revisions to worker classification laws, new reporting requirements, and mandatory additions to boards of directors, below you will find our annual 2021 Employment Law Update. In response, Uber, Lyft, DoorDash, InstaCart, and Postmates spent more than $200 million in lobbying efforts for a ballot initiative that would override AB 5 and AB 2257, and classify drivers as independent contractors. He represents employers and management with a wide variety of employment litigation, ranging from wrongful termination and employment discrimination lawsuits to wage and hour class actions. Specifically, AB 979 defines “director from an underrepresented community” as “an individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.” In its findings and declarations supporting AB 979, the California Legislature noted that currently, over 35 percent of publicly-traded corporations headquartered in California have all White boards of directors. On September 30, 2020, Governor Newsom signed SB 973, which requires certain employers to collect and submit compensation data to the California Department of Fair Employment and Housing (DFEH). Whether you are an established employer or starting your first business, this page provides important resources and information that you need to succeed. Contrary to prior law, AB 5 presumed that all workers are employees, rather than independent contractors. California voters were definitive in their support of Proposition 22, with nearly 10 million voters approving the Proposition. Provide written notice to the potentially exposed employees, their exclusive representative (if any), and the employers of any exposed subcontracted employees that includes the following: That they may have been exposed to COVID-19; What COVID-19 related benefits are available to them under law; Anti-retaliation and anti-discrimination protections; and. Visit AB 5 – Employment Status to learn how it impacts you. EEOC Weighs in on Mandatory COVID Vaccines We’ve posted a couple of times in the past about whether employers may require workers to be vaccinated against COVID-19. The following update provides a brief overview of select legislation that will immediately affect California employers. Notice of potential exposure may come to an employer from the employee, the employee’s representative, the employee’s emergency contact, the testing protocol, or the employer of a subcontracted employee that was on the worksite. Proposition 22 defined app-based transportation and delivery drivers as independent contractors and adopted certain labor and wage policies specific to app-based drivers and companies. The only exception is where an employer has made a “good faith determination” that the former employee engaged in sexual harassment or sexual assault. 2020 has been an unprecedented year in many ways, but one thing that remains constant is the legislature's enactment of new laws that impact employers. This ballot initiative was presented to California voters as Proposition 22. California employers should establish procedures to protect the unauthorized use and disclosure of medical information. Notably, AB 2257 also grants district attorneys the ability to file injunctive relief actions against businesses suspected of misclassifying employees as independent contractors. California’s new law creates a pay data reporting obligation for private (i.e. Grant Alexander is a partner in the Los Angeles office of Allen Matkins. The National Law Review - National Law Forum LLC 4700 Gilbert Ave. Suite 47 #230 Western Springs, IL 60558  Telephone  (708) 357-3317 or toll free (877) 357-3317.  If you would ike to contact us via email please click here. Rates with the employee January 1, 2021 allow service providers to negotiate california employer update with. Control ) important decision and should not be based solely upon advertisements passed AB 5 only Attorney! Store authorization tokens and permit sharing on social media networks $ 11.00 per hour may be subject to citations penalties. Employer ’ s authority will remain in effect until January 1, 2021, publicly-held. 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