Coronavirus / COVID Employment Law Updates for California Employers # 22 – New Cal OSHA Standard and More by D. Gregory Valenza | Dec 2, 2020 Here is installment #22 of our ongoing series of COVID-related posts of interest to California employers. ", SB-188: Protection from discrimination based on hairstyle. AB-5 established a set of parameters for employers looking to label workers as independent contractors — instead employees — called the "ABC test.". A group of freelance journalists filed a joint lawsuit against the state as well. ", Ogletree Deakins recommends "conducting spot audits of payroll practices to ensure that employees are receiving their pay in a timely manner. With the new year, the state minimum wage became $13.00 per hour for employers with 26 or more employees and $12.00 per hour for employers with 25 or fewer employees. This includes the right to request disclosure of the specific kinds of personal information a company has collected and to have information deleted. Here is what we know as of today. – Federal and state wage and hour laws (e.g., overtime, minimum wage) apply to employees, but not independent contractors – Consequences can be severe – Misclassification can result in fines, penalties, and payment of uncollected taxes and wages – Exposure to class actions and PAGA penalties in California 7 Prop 22 distinguished lecturer and executive director of Georgetown University Law Center's Workers' Rights Institute and former chair of the National Labor Relations Board, told HR Dive. Our roots go back to 1875, when we were founded in New York City. Another new state law would prohibit the use of some mandatory arbitration agreements as a condition of employment, but remains under a temporary restraining order (TRO) blocking it from taking effect. State & Local Updates By subscribing to our blog, you acknowledge that you have read our. First, disclosures extend to personal information collected from job applicants, employees or contractors. "If we're talking about individuals who come into a workplace and are performing essentially the same work that is the focus of the business, there is a large question as to whether or not the intent of the business is to duck its obligation to provide the appropriate employee protections to the worker, by means of placing the worker in a different category," Pearce said. Labor Commissioner's Office; California Paid Sick Leave: Frequently Asked Questions UPDATE New Questions Concerning the Paid Sick Leave Law Updated March 29, 2017 Questions about An Employer’s Use of a “Grandfathered” (Existing) Paid Time Off Plan to Provide Paid Sick Leave. Employers in the state may need to brush up on recent changes and prepare for those still to come. In addition to New York, we have offices in Beijing, Boston, Chicago, Hong Kong, London, Los Angeles, Paris, São Paulo and Washington, D.C., as well as Boca Raton, Newark and New Orleans. The new law expanded the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court. 1. Companies may want to have their arbitration agreements reviewed and updated if necessary. ", "conducting spot audits of payroll practices to ensure that employees are receiving their pay in a timely manner. Proskauer is a leading international law firm focused on creating value. CAL-OSHA ISSUES REGULATIONS REGARDING EMPLOYER SAFETY REQUIREMENTS APPLICABLE TO MOST EMPLOYERS Our resources keep you in the know on compliance within your specific region and state. Vox Media, for example, recently laid off all California-based freelancers with plans to replace them with employees. On September 30, 2020, California Governor Gavin Newsom signed SB 973, also known as the California Gender, Race Pay-Gap Law, which goes into effect January 1, 2021. added hairstyle, including "such hairstyles as braids, locks, and twists," to the list of protected traits. AB-673 & SB-688: Penalties for late or incorrect wages. Attorneys from the firm discuss 5 general areas of new legislation facing California employers: ", To plan for any changes that may be needed as a result of AB-51, lawyers from Ogletree Deakins suggested in a blog post that employers "that easily meet the interstate commerce test under the [Federal Arbitration Act] can implement an arbitration program or maintain their current arbitration program. Rooms must also contain a surface to place a pump and personal items. does not specify arbitration, but rather prohibits companies or people "from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit. This law entitles employees to an additional 30 days of unpaid leave, in addition to 30 days of paid leave already permitted, to donate an organ. The California Family Rights Act (CFRA) was significantly expanded to cover employers with five or more employees, whereas the current version of the CFRA covers employers with 50 or more employees. SB-1383 expands the California Family Rights Act (“CFRA”) and the New Parent Leave Act (“NPLA”) to make it an unlawful employment practice for any employer with five or more employees to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves or a child, … As 2019 draws to a close, it is time to take a close look at some of the most important new laws that have been passed which will affect California employers in 2020 and beyond. Consistent with our reporting from the past few years, California is once again listed among the American Tort Reform Foundation’s (ATRF) “Top Judicial Hellholes” in the United States. Shaw Law Group, PC. California Employment Law Update download brochure Because of the extraordinary circumstances caused by COVID-19, NELI will be altering the presentation format of this year’s California Update to be a LIVE WEBINAR Conference with video rather than the in-person meeting. Employers can terminate employees or not rehire them "if there is a legitimate non-discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person" or if the individual committed harassment or sexual assault. AB-25 offers some clarification as it relates to data collected through the employment process. Under the Emergency Temporary Standards, all covered employers must establish, implement, and maintain “an effective, written COVID-19 Prevention Program,” which may either be a standalone document or incorporated into employers’ preexisting Injury and Illness Prevention Programs. A Few Quick Employment Law Updates (Moderately California-Related) AB 2257 – CA’s “Improved” Independent Contractor Law, Explained; Join Our Mailing List. California Assemblywoman Lorena Gonzalez, D, who authored the bill, told local news that the Uber lawsuit alleging the law is unconstitutional is "bizarre." AB-51: Preserving the right to legal recourse, Another new state law would prohibit the use of some mandatory arbitration agreements as a condition of employment, but remains under a, temporary restraining order (TRO) blocking it. On-demand service apps such as rideshare companies that rely on an army of freelance workers to fulfill their orders may be most affected. The California Legislature, the courts, and state and federal agencies were busy in 2020, passing new laws, issuing new rulings, and implementing new regulations that impact California employers. from taking effect. extended the filing period for complaints of unlawful or discriminatory employment practices from one year to three years. Copyright © 2020, Proskauer Rose LLP. Payday Requirements. 2021 Employment Law Update. Webinars California Employment Law Update. 425 University Avenue, Suite 200 Sacramento, CA 95825 Tel: (916) 640-2240 Fax: (916) 640-2241. Employment / Age Certification. On top of that, four California cities enacted even higher minimum wages, according to law firm Fisher Philips: Oakland, San Diego, San Jose, Santa Clara. Mailbag: Can we require that employees receive a COVID-19 vaccine? On Friday, December 18, 2020, AlvaradoSmith employment lawyer Jonathan M. Werner presented AlvaradoSmith’s “2021 California Employment Law Update.”. Interactive map feature to drill down to state-specific COVID-related requirements. Maintain records of COVID-19 cases and report serious illnesses and multiple cases to Cal/OSHA and local health departments, as required. FEHA prohibits employers from using discriminatory practices in the hiring, promotion and termination of employees. "To designate workers as something other than an employee puts the onus on the workers to provide for their own insurance, to seek legal recourse through individual legal names," Pearce said. Well, we know that that's not equitable and ignores the reality of the employer-employee relationship. This is just the latest example of how California’s, uh, rather challenging tax and regulatory environment continues to drive employers from the Golden State. Perform work that is outside the usual course of the hiring entity's business. California Employment Law Update Events; SUBSCRIBE. "And that is revolutionary.". It can be difficult for employers both large and small to navigate California's complex legal requirements. Be customarily engaged in an independently established trade, occupation or business of the same nature as that involved in the work performed. California COVID-19 Supplemental Paid Sick Leave If you are (1) subject to a governmental quarantine or isolation order related to COVID-19, (2) advised by a health care provider to self-quarantine or self-isolate due to COVID-19 concerns, or (3) are prohibited from working by the Worker’s Hiring Entity due to COVID-19-related health concerns. California Employment Law Update 2020: New Year Brings Surge of New Laws and Legal Battles Impacting Employers Doing Business in California Lisa Koblin , Henry A. States and municipalities continue to pass laws that extend equal … SB 688 expands on existing labor codes to levy the same penalties for failure to pay minimum wage to companies that pay or cause an employee to be paid "a rate of compensation that is less than set by contract. The TRO came just in time, Dec. 30, on the grounds that the law may stand in conflict with the Federal Arbitration Act. A recent ruling of the Superior Court of California in Los Angeles also, Media companies that rely on freelancers for blogging, reporting, photography and management of web properties also may be heavily affected. Finally, those subject to the law must disclose the categories and business purposes for which information is being used. The experienced employment law attorneys at Gehres Law Library are ready to assist employers in navigating the sometimes confusing and ever-changing employment laws in this State. This year, California finished with a Bronze Medal as just the third most hellish (behind Pennsylvania and New York City), improving on its first place finish in 2019. Minimum Wage for Tipped Employees. The law also states a limit on the number of "submissions" a freelancer can contribute in a year and also defines what constitutes a submission. Equal Employment Opportunity. December 16, 2020. The reasons most frequently cited for relocating are:  California’s highest-in-the-nation income tax rates, greatest regulatory burden and litigation risk along with the third-highest cost of living (after Hawaii and the District of Columbia). We invite you to review our newly-posted November 2020 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. This includes the right to request disclosure of the specific kinds of personal information a company has collected and to have information deleted. En español. Employees in California may be entitled to workers’ compensation if they test positive for COVID-19 or if their place of employment experiences an “outbreak” of COVID-19 as defined by legislation signed into law Sept. 17 by Gov. Employers must also provide access to electricity or alternative devices and access to a sink and a refrigerator near the employee's workspace. As we blogged in December and April, Governor Gavin Newsom signed AB5 into law in September 2019. With 725+ lawyers active in virtually every major market worldwide, we are recognized not only for our legal excellence, but also our dedication to client service. In 1977, Larry Ellison co-founded Oracle with Bob Miner and Ed Oates in Santa Clara with just $2,000 in seed money. Administers the Job Service, Unemployment Insurance, Disability Insurance, Workforce Investment Act, and Welfare-to-Work programs and handles the audit and collection of employment taxes and maintains employment records for more than 19 million California workers. "The one clear thing we know about Uber is they will do anything to try to exempt themselves from state regulations that make us all safer and their driver employees self-sufficient," she said. The California Consumer Privacy Act grants consumers certain rights regarding personal information that is owned by businesses. California’s Division of Occupational Safety and Health, better known as “Cal/OSHA,” recently issued new emergency temporary standards to protect workers from COVID-19 (the “Emergency Temporary Standards”), which were approved by the Office of Administrative Law earlier this week. Industries exempt from the law are mostly in professional services or trades, such as doctors, electricians, independent consultants, architects and accountants. The penalty is $100 for the first violation. Ensure that employees know they must, without fear of reprisal, report COVID-19 symptoms, possible exposures and/or possible COVID-19 hazards in the workplace; Communicate to employees about the employer’s COVID-19 prevention procedures and available testing resources; Identify, evaluate, and correct COVID-19 hazards; Establish physical distancing, face covering protocols, and other controls or equipment to reduce transmission risk; Develop procedures to investigate and respond to COVID-19 cases, including an effective employee screening process; Provide testing to employees who are exposed to COVID-19, and in the case of multiple infections or a major outbreak, implement regular workplace testing for employees in the exposed work areas; Require the exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk; and. The California Consumer Privacy Act grants consumers certain rights regarding personal information that is owned by businesses. Our clients include many of the world’s top companies, financial institutions, investment funds, not-for-profit institutions, governmental entities and other organizations across industries and borders. Rooms must also contain a surface to place a pump and personal items. "So a lot of burden that is placed on the worker when the worker's relationship with the paying entity is not exactly equal.". AB-749 says that settlement agreements between an "aggrieved person" and an employer can no longer contain a provision that restricts an employee from obtaining future employment with that employer and any affiliated entities such as franchises or subsidiaries. 2021 California Employment Law Update. Further, employers are permitted to use “employer-provided employee sick leave … and consider benefit payments from public sources in determining how to maintain earnings…, where permitted by law and when not covered by workers’ compensation.”. Gavin Newsom. The law also states a limit on the number of "submissions" a freelancer can contribute in a year and also defines what constitutes a submission. In just the past decade, more than 13,000 businesses have left the Golden State for better business climates (they’re increasingly going to Texas). As the calendar turns to 2020, California has gone live with a number of new laws voted in as bills or ballot initiatives. You can find an update on the latest in the rideshare industry here. Employers with fewer than 50 employees may seek a hardship exemption. 2020 Labor & Employment Law Update for California Employers Labor & Employment 12.10.19. Also consider conducting an equal pay audit to identify whether certain job categories are vulnerable to equal pay claims.". ", To plan for any changes that may be needed as a result of AB-51, lawyers from, in a blog post that employers "that easily meet the interstate commerce test under the [Federal Arbitration Act] can implement an arbitration program or maintain their current arbitration program. 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. "The one clear thing we know about Uber is they will do anything to try to exempt themselves from state regulations that make us all safer and their driver employees self-sufficient," she said. Oracle Joins “Texit” – The Growing Exodus From California to Texas, California Named a Top “Judicial Hellhole” … Again, As COVID-19 Cases Overwhelm the Golden State, Cal/OSHA Imposes More Burdens on Employers, emergency temporary standards to protect workers from COVID-19, California Department of Fair Employment and Housing, “See Ya Later, California!” Hewlett-Packard Moves its HQ from Silicon Valley to Texas, November 2020 California Employment Law Notes, Court Affirms $4.26 Million Jury Award For “Self-Published Defamation”, Court Affirms Dismissal Of Trade Secrets Claim Brought Against Apple, Employer Gets No Relief From $1.6 Million Default Judgment, Google Employees’ PAGA Claims Are Not Preempted By The NLRA, Non-California Forum Selection Clause Is Barred By Labor Code Section 925, Ninth Circuit Upholds FINRA Class Action Waiver Provision, Employees Compensated Solely By Commission Are Not Paid A “Salary” And Are Non-Exempt, Podcast: What the Biden Presidency Could Mean for Employers, State-by-State Real-Time Updates on Employment and Privacy-Related Rules, Regulations, Orders and Guidance, Please click here to learn more information about ProTrack COVID-19, California Expands Its Already Generous Leave Requirements To Cover Even Smaller Employers, California Mandates Diversity Quotas for Corporate Boards, Employee Benefits and Executive Compensation Law Blog, Government Contractor Compliance & Regulations, Proskauer on Class and Collective Actions. Listen to the podcast or read the transcript here. Thereafter, the training must be given again once every two years. The TRO came just in time, Dec. 30, on the grounds that the law may stand in conflict with the Federal Arbitration Act. As a result in this increase, the minimum salary an employee must earn to qualify for exempt status under California law will increase to $43,680 per year ($840 per week) for employers with 25 or fewer employees, and to $45,760 per year ($880 per week) for employers with 26 or more employees. Please click here to learn more information about ProTrack COVID-19, and contact Evandro Gigante, Ryan Blaney, or Harris Mufson to request access. SB 188 added hairstyle, including "such hairstyles as braids, locks, and twists," to the list of protected traits. In the event of such breach or default, the empl… The language of the bill does not specify arbitration, but rather prohibits companies or people "from requiring any applicant for employment or any employee to waive any right, forum, or procedure for a violation of any provision of the California Fair Employment and Housing Act (FEHA) or other specific statutes governing employment as a condition of employment, continued employment, or the receipt of any employment-related benefit. Employers with fewer than 50 employees may seek a hardship exemption. Custom notifications based on applicable jurisdictions. ", "The fallacy of the mandatory arbitration provision is that agreeing with the terms of the provision is a non-negotiable condition of employment and it's not an equal playing field," Pearce said. Among other things, the COVID-19 Prevention Program must: Paradoxically (given the purported goal of preventing exposure in the workplace and further spread of this deadly virus), and in contrast to guidance from both the EEOC and California Department of Fair Employment and Housing, the Emergency Temporary Standards provide that “[a] negative COVID-19 test shall not be required for an employee to return to work” following infection or exposure. Uber, Postmates and two drivers have, , calling the law unconstitutional. Discover announcements from companies in your industry. Access to our database of COVID-19 employment and privacy-related state and local rules, regulations, orders and guidance – updated in real-time. The answer "is far from clear," one management-side attorney told HR Dive. Additionally, the new law allow new parents who work for the same employer to take 12 weeks for himself or herself for baby bonding. Proskauer’s ProTrack COVID-19 tool is now available for use by our clients. AB-749: Ban on no-rehire provisions in settlement agreements. with plans to replace them with employees. Subscribe to HR Dive to get the must-read news & insights in your inbox. But for now, employers may want to familiarize themselves with some of the most widely applicable and most impactful new laws. To assist multi-state employers as they navigate these developments, we have created ProTrack COVID-19, a state and local tracker tool. The FFCRA, which included federal Paid Sick Leave and paid “E-FMLA”, expires December 31, 2020, as does the California version that required paid sick leave for larger employers. Each day, California employers look to CalChamber and HRCalifornia for advice about pressing California employment laws and HR issues, such as sexual harassment and employee compensation law. As jurisdictions continue to respond to COVID-19 with new rules, regulations, orders and guidance, employers must ensure that they adhere to these requirements as they manage business operations. "What California has done is set the default to employee, leaving the burden upon the entity that views the relationship different than the employee to establish the criteria that is set forth," Mark Pearce, distinguished lecturer and executive director of Georgetown University Law Center's Workers' Rights Institute and former chair of the National Labor Relations Board, told HR Dive. Minimum Wage. enacted even higher minimum wages, according to law firm Fisher Philips: Oakland, San Diego, San Jose, Santa Clara. In addition, the Emergency Temporary Standards direct employers to “continue to maintain … [the] earnings, seniority, and all other employee rights and benefits” of any employee who has to be excluded from work due to actual COVID-19 infection or potential COVID-19 exposure in the workplace, if the employee is “otherwise able and available to work.”  The Emergency Temporary Standards provide that the obligation to maintain earnings and benefits does not apply to any period when an employee is unable to work “for reasons other than protecting persons at the workplace from possible COVID-19 transmission” or if the employer can demonstrate that the COVID-19 exposure is not work related. States and municipalities continue to pass california employment law update that extend equal … 2020: 6 new California employment law addressed! % of the wages owed employment and privacy-related state and local rules, regulations and standards about are! 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Santa Clara large and small to navigate California 's california employment law update legal requirements in the state need. Employment and privacy-related state and local tracker tool by our clients guidance – updated in real-time clarification as relates... Based on hairstyle incorrect wages new labor and employment laws along with updates to be AWARE of a state local! Conduct business, and twists, '' to the law must disclose the categories and business purposes for information...