30 Oct

October 2020 California HR Legal Updates

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Attorney General Proposes Third Set of Modifications to CCPA Regulations

What happened?
On October 12, 2020, the California Attorney General proposed a third set of modifications to the California Consumer Privacy Act (CCPA) regulations.

What are the details?
The new regulations will impact three major areas of the existing regulations.

  1. Offline Notices of Opt-Out Rights

Currently, Section 999.306 requires businesses that sell personal information to provide a notice of consumer’s rights to opt out. They provide for online notices and even require businesses that do not operate a website to provide an alternative documented method to inform consumers of the right to opt out. The proposed rules would include more specific instructions and examples. Specifically, it requires companies that collect personal information offline (think paper forms), to also provide the notice in an offline fashion.

  1. Consumer Methods for Requesting Opt-Out

The proposed regulations would insert a new subsection (h) to Section 999.315. This subsection would require the business’s methods for submitting opt-out requests to be easy to execute and require minimal steps, which cannot be so complicated as to subvert or impair a consumer opt-out attempt.

  1. Authorized Agent Requests

Previously, Section 999.326 allowed agents to opt-out in place of a consumer if they met the following criteria:

  • The consumer provides signed authorization permitting the agent to do so;
  • The agent verifies their own identity with the business; and/or
  • Directly confirm with the business that they provided the authorized agent permission to submit the request.

The new rules will add that the business may require the authorized agent to provide proof that the consumer gave the agent signed permission to submit the request. The new rules also allow the business to require the consumer to do either of the following:

  • Verify their own identity directly with the business; or
  • Directly confirm with the business that they provided the authorized agent permission to submit the request.

More information may be found on the proposed rules here.

The red lined version of the rule changes can be found here.

What do employers need to do?
Employers that make annual revenues over $25 million should keep an eye on the changing rules of the CCPA as they will impact their business operations daily. If needed, clients should consult their employment attorneys on possible changes that may be needed in the workplace. 

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California Enacts Law Requiring Compensation Data Collection

What happened?
On September 30, 2020, Governor Newsom signed into law SB-973.

What are the details?
SB-973 creates a new, yet familiar, requirement for employers to report pay data to the Department of Fair Employment and Housing (DFEH). Specifically, the pay data report must include a breakdown of employees by race, ethnicity, and sex in 10 broadly defined job categories. The report must further include a breakdown of employee compensation in one of 11 pay bands used by the United States Bureau of Labor Statistics in its Occupational Employee Survey, ranging from a low “less than $19,293” to a high of “more than $208,000.” Employers will still use Form W-2 income for this report. The report will also need to include total hours worked by each employee within a given pay band during the reporting year.

Employers may feel a sense of déjà vu reading these requirements. The EEOC required a similar report in 2019 but quickly discontinued the requirement as the cost of collection was too high relative to the utility provided by the data.

The full text of SB-973 can be found here.

An article summarizing the SB can be found here.

What do employers need to do?
Employers should ensure their payroll information is up to date and that they are able to collect the relevant data about their workforce.

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Department of Fair Employment and Housing Provides New Fair Chance Act FAQ and Regulations

What happened?
The DEFH has published a new FAQ about the Fair Chance Act. Additionally, new regulations have been created by the DFEH Council that impact criminal background checks.

What are the details?
The regulations added to the Fair Chance Act expand the definition of “applicant” to include individuals who are conditionally offered employment but begin working while an employer undertakes a post-offer consideration of the individual’s criminal history. The regulation explicitly states that “an employer cannot evade the requirements” of the Fair Chance Act or the regulation by treating an individual as having lost their status as an “applicant” by allowing them to begin working before the employer has completed its post-offer review of the applicant’s criminal history.

The regulations include other changes including:

  • expanding the scope of the Fair Chance Act by requiring that labor contractors and union hiring halls comply with the regulations when selecting workers for inclusion in pool or availability lists;
  • requiring client employers to comply with the regulations when selecting workers supplied by labor contractors and union hiring halls; and
  • specifying that while employers must not consider an applicant’s referral to or participation in a diversion program when making hiring decisions, employers may consider the programs as evidence of rehabilitation or mitigating circumstances after a conditional offer of employment has been made if offered as such by an applicant.

The new FAQ can be found here.

What do employers need to do?
Employers should review the FAQ and update their existing background check policies if needed.

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California Department of Industrial Relations Increases Computer Professional and Licensed Physician/Surgeon Exemption Compensation Rate

What happened?
On October 16, 2020, the Department of Industrial Relations (DIR) announced the new compensation rate that computer professionals and licensed physician/surgeons must be paid in order to meet exemption status.

What are the details?
The DIR announced the new rate in a memo, stating that effective January 1, 2021, employers must pay their California computer professional employees a salary of at least $98,907.70 annually ($8,242.32 monthly) or an hourly wage of $47.48 every hour worked in order to maintain exemption status. Licensed physicians and surgeons must be paid a minimum of $86.49 to maintain exemption status. 

The announcement for computer professionals can be found here.

The announcement for licensed physicians and surgeons can be found here.

What do employers need to do?
Employers should connect with their payroll contact to ensure this increase in wage requirement is handled come January 2021. 

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Cal/OSHA Upcoming Proposal Increases Employee Responsibility

What happened?
On September 17, 2020, the Cal/OSHA Board approved a petition to draft and submit for review a new COVID-19 emergency workplace safety standard.

What are the details?
The standard would protect California workers not covered by the Aerosol Transmissible Disease standards from exposure to COVID-19.

The standard would create new workplace safety regulations including:

  • Establishing a framework parallel to Cal/OSHA’s Injury Illness Prevention Program (IIPP), which requires a written employee protection plan.
  • Create a procedure to identify and evaluate COVID-19 hazards and exposure risks, as well as procedures to control the hazard of exposure.
  • Create procedures to respond to employees exposed to or diagnosed with COVID-19 and employees with COVID-19 symptoms.
  • Establish a job hazard analysis to track modes of COVID-19 workplace transmission and adopt preventive measures to minimize risk.

These proposed changes will be considered at the November 19, 2020 Cal/OSHA Board meeting.

What do employers need to do?
Employers should be aware of these changes and prepare to possibly change their workplace IIPPs should these changes be approved.

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San Francisco Introduces New Requirements for Tourist Hotels

What happened?
On October 9, 2020, San Francisco passed Ordinance No. 208-20. This Ordinance creates new requirements for “Tourist Hotels” regarding cleaning and disease prevention standards and practices.

What are the details?
The Ordinance is effective November 8, 2020. A “Tourist Hotel” is defined as “any building or set of buildings containing six or more guest rooms or suites intended for commercial tourist use by providing accommodations to transient guests for a nightly (or longer) basis.” The Ordinance includes many cleaning requirements for these hotels to abide by, including:

  • Providing handwashing stations on every floor except in the case of housekeeping employees authorized to wash their hands in guest rooms;
  • Disinfecting porous and non-porous surfaces using the appropriate disinfectant; and
  • Installation of hand sanitizer dispensers at main entrances and exits used by employees and guests, and at other open high-contact public areas.

Hotels will need to provide new PPE to employees including masks, gloves, and face coverings. Additionally, hotel workers may reserve the right to refuse to work if they reasonable believe the work or working conditions pose a personal health risk to themselves or others because of a failure to comply with the ordinance.

An article providing a more comprehensive list of what is required of tourist hotels can be found here.

What do employers need to do?
Employers with tourist hotels in San Francisco should update their workplace policies and should begin looking at purchasing needed PPE, as soon as possible.

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CDPH Issues New Guidance on COVID-19 Outbreak Reporting

What happened?
On October 16, 2020, the California Department of Public Health (CDPH) issued two pieces of guidance on COVID-19 reporting requirements.

What are the details?
The two pieces of guidance include information on how employers should be reporting outbreaks to local public health agencies right now. These requirements are very similar to AB 685, which was passed recently, but is effective on January 1, 2021. 

The first piece of guidance covers AB 685 and provides definitions that were previously ambiguous. The guidance does the following:

  • Clarifies that an “outbreak” is three cases within two weeks among workers, which resolves an ambiguity about potential exposures caused by sick customers visiting a retail space.
  • Clarifies that a “lab confirmed test” must be a test for live virus, not antibodies, which both the business community and Senator Pan had pushed for.

The second piece of guidance provides a loose discussion of AB 685. Notably, regarding when employers must report an “outbreak,” it states that employers are already required to report outbreaks pursuant to a third guidance document, which the CDPH amended the day after AB 685 passed but the CDPH did not publicize it at the time. Meaning that while AB 685 may not be officially effective until January 1, 2021, certain reporting aspects of it may be enforceable now.

An article covering AB 685 can be found here.

An article covering the new CDPH guidance can be found here.     

The first document providing guidance can be found here.

The second document providing guidance can be found here.

The third document providing guidance that is referenced by the CDHP can be found here.

What do employers need to do?
Employers should update their reporting practices to reflect the new expectations that the CDPH has created.

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Uber and Lyft Ordered to Reclassify California Drivers

What happened?
On October 23, 2020, the California state appeals court affirmed a lower court’s ruling that Lyft and Uber must reclassify California drivers as employees.

What are the details?
In an ongoing legal battle, rideshare companies Uber and Lyft, have been ordered by a state appeals court to comply with a previous ruling. Uber and Lyft have been fighting to have their rideshare workers be considered independent contractors since the passing of AB5. Taking effect on January 1, 2020, AB5 has created a new set of rules that determine whether a worker is an employee or independent contractor. While many exceptions have been made to AB5, rideshare drivers have been left out so far. Outside of the now lost legal battle, Uber and Lyft have been trying to move around the courts and instead have supported a proposition to get their workers exempted from AB5. Proposition 22 will allow rideshare companies to exempt their drivers, specifically drivers who (a) provide delivery services on an on-demand basis through a business’s online-enabled application or (b) use a personal vehicle to provide pre-arranged transportation services for compensation via a business’s online-enabled application, from AB5.

Proposition 22 can be read here.

What do employers need to do?
Rideshare companies in California should keep a close eye on Proposition 22, as it may determine the trend for future exemptions for companies who operate on similar models.

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