NEW EMPLOYMENT LAWS ON THE HORIZON
On August 31, 2020, the California Legislature finished passing a number of bills that impact employers. Those bills are now headed to Governor Newsom’s desk for approval. Below are some significant bills relating to employment that the Governor has approved or must approve by the September 30, 2020 deadline. All approved bills will be effective January 1, 2021, unless otherwise noted.
AB 2257 (Employees and Independent Contractors): Clarifies existing exemptions and adds additional industry-specific exemptions to AB 5, including:
- recording artists;
- managers of recording artists;
- record producers and directors;
- musical engineers;
- musicians engaged in creating sound recordings;
- photographers working on album covers, and other press and publicity photos relating to recordings;
- independent radio promoters;
- musicians or musical groups for the purpose of a single-engagement live performance event;
- individual performance artists;
- licensed landscape architects;
- registered professional foresters;
- home inspectors;
- persons who provide underwriting inspections;
- premium audits;
- risk management or loss-control work for the insurance industry;
- manufactured housing salespersons;
- persons engaged in conducting international and cultural exchange visitor programs;
- competition judges with specialized skill sets;
- digital content aggregators who serve as licensing intermediaries for digital content;
- specialized performer hired to teach a master class for no more than one week; and,
- feedback aggregators.
Reworks, clarifies, and simplifies the “business to business” exemption to AB 5. Note that even those exempted under AB 5 must still meet the Borello test in order to qualify as independent contractors. This law takes effect immediately.
AB 1867 (Supplemental Paid Sick Leave): Would codify Governor Newsom’s Executive Order N-51-20 related to paid sick leave for food sector workers. Would require an employer to provide COVID-19 supplemental paid sick leave to each food sector worker who is unable to work due to specified reasons relating to COVID-19. Would also establish COVID-19 supplemental paid sick leave for certain workers employed by private businesses of 500 or more employees, or persons employed as certain types of health care providers or emergency responders by public or private entities. These provisions would expire on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act in the Families First Coronavirus Response Act, whichever is later.
AB 1867 is an urgency statute, which means that it goes into effect immediately upon Governor Newsom’s approval. However, the sick leave provisions would not be effective until 10 days after the Governor signs the bill.
AB 685 (Mandated COVID-19 Reporting): Would require employers, within one business day of receiving notice of potential exposure to COVID-19 by an employee, to: 1) provide written notice to all employees and the employers of subcontracted employees who were on the premises at the same worksite; 2) provide all employees who may have been exposed with information regarding COVID-19-related benefits, such as workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, or supplemental sick leave; and 3) notify all employees and the employers of subcontracted employees regarding the employer’s disinfection and the safety plans.
AB 3216 (State of Emergency Rehire of Laid Off Employees): Would require certain employers to offer job positions that become available to employees who were laid off due to a state of emergency, if the laid-off employees are qualified, based upon a preference system and in compliance with certain time periods and procedures.
SB 1159 (Workers’ Compensation): Would create a rebuttable presumption that an employee contracted COVID-19 in the workplace if certain circumstances are met, for purposes of workers’ compensation.
AB 2017 (Paid Sick Leave Designation): Would give employees sole discretion to designate days taken as paid sick leave.
SB 1383 (CFRA Expansion): Would expand the California Family Rights Act to require businesses with as few as five employees to provide 12 weeks of mandatory family leave per year. Would expand family care and medical leave to include leave (1) to care for grandparents, grandchildren, siblings, domestic partners with a serious health condition (in addition to existing leave to care for a parent or spouse), and (2) because of a qualifying exigency related to covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the US Armed forces. Would expand the definition of child to include child of a domestic partner.
SB 973 (Annual Report Re Pay Data): Would require private employers with 100 or more employees who file the federal annual Employer Information Report (EEO-1) to also submit a pay data report to the Department of Fair Employment and Housing that states the number of employees by race, ethnicity, and sex in the following categories: all levels of officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service workers.
AB 1947 (DLSE Complaints): Would amend Section 98.7 of the Labor Code to extend the deadline for filing Labor Commissioner complaints from six months to one year after a violation.
|ERICA M. SOROSKY
|ERIN K. OYAMA