30 Sep

September 2020 California HR Legal Updates

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Newsom Passes AB 2257 Creating More AB 5 Exemptions

What happened?
On September 4, 2020, Governor Gavin Newsom signed AB 2257, making it effective immediately.

What are the details?  
On September 18, 2019, AB 5 was passed, which codified Dynamex Operations West, Inc. v. Superior Court of Los Angeles. The ruling would create a new way to determine if a person hired by an employer was an employee or a contractor. It quickly became apparent to many employers that their businesses would be severely impacted by this decision. Companies like Uber and Lyft, to this day, do not abide by AB 5, risking severe litigation. Since the passing of AB 5 many industries have tried to obtain exemptions carved out for their businesses.

AB 2257 will create a number of exemptions in AB 5. These exemptions are not a “get out of jail free card” for employers. Instead, the exemptions will simply bring the select few workers back to the Borello test, which had been used before the adoption of the ABC test.  The Borello test is a series of questions based around the question of does the hiring entity have the right to “control the manner and means” of completing that service?

The following workers are brought back to the Borello test with the passing of AB 2257:

  1. Certain workers in the music industry;
  2. Musicians performing for single live performances;
  3. Individual performance artists presenting original, creative work;
  4. Insurance industry workers who provide underwriting, inspections, and other services; and
  5. Consulting service providers.

The bill also removes a provision from AB 5 that automatically turns freelance writers and photographers into employees if they contract for more than 35 submissions in a year to a single employer, provided that:

  1. The writer or photographer provide services under a contract that specifies the intellectual property rights, the rate of pay for which the services would be provided and that the contractor does not replace an employee;
  2. The services would not be primarily performed at the employer’s location; and
  3. The worker is not restricted from working for other employers.

As it stands after the signing of this bill, any workers not included in AB 2257 will still need to adhere to the AB 5 provisions.

The full legislation can be read here.

An article summarizing the legislation can be found here. (Note: The article was written before the legislation passed, but the content of the legislation did not change between the time of writing the article and the passing.)

What do employers need to do?  
Employers utilizing workers in the listed industries should seek legal counsel to see how these exemptions may impact their worker’s classifications.

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Worker Recall and Retention Ordinances Passes in San Diego

What happened?
On September 8, 2020, the City of San Diego passed two ordinances that are effective immediately. The two ordinances are the “City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance” (Recall Ordinance) and the “City of San Diego COVID-19 Worker Retention Ordinance” (Retention Ordinance).

What are the details?  
The two ordinances are meant to target three types of businesses and employer who have been especially impacted by the pandemic.

  1. Commercial Property Employer: Defined by the recall ordinance as owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee of a non-residential property located within the geographical boundaries of the City of San Diego that employs 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a commercial property business or employer are covered by the recall Ordinance.
  2. Event Center Employer: Defined by the recall ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: Defined by the recall ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

Covered employers under the Recall Ordinance will need to offer positions of jobs available on or after September 8, 2020 to qualified employees who were laid off on or after March 4, 2020. Laid off employees will be eligible, in order of priority, according to the following:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

Companies that experience a change in control/ownership must still provide 90 days’ notice to previous employees. At the end of the end of the 90 days the employer must perform a written performance evaluation for each eligible employee retained pursuant of the Retention Ordinance.

The Recall Ordinance can be found here

The Retention Ordinance can be found here.

What do employers need to do?  
San Diego employers should be aware of these provisions as they are effective immediately. These only apply to the three listed types of business so businesses that fall within these three types especially should be aware of the new requirements placed upon them.

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California Family Rights Act Expands Dramatically

What happened?
On September 17, 2020, Governor Newsom signed Senate Bill (SB) 1383, greatly expanding the coverage of the California Family Rights Act (CFRA).

What are the details?  
SB 1383 has greatly expanded the coverage provided to employees by the CFRA. Effective January 1, 2021, this bill will repeal the previous provisions of the CFRA and the New Parent Leave Act (NPLA) and combine them into one larger leave system.

The current CFRA only applies to employers with 50 or more employees within 75 miles of the worksite. The new CFRA will apply to employers with as few as five employees and removes the distance provision. Most notably the new CFRA will expand what “family members” the employee may take leave to take care of. Previously, the CFRA would only cover employees to take care of their minor child (unless the child is an adult and a dependent child), their spouse, and their parents. Now, the new CFRA will allow the employee to take leave to take care of their siblings, grandparents, grandchildren, and domestic partners.

The leave will also impact employers who have employees that are having a child together. In addition, the new CFRA will not include a provision in the old one that allowed employers to deny re-instatement for salaried employees who were paid among the highest 10% of the employees and where the refusal is necessary to prevent substantial and grievous economic injury.

Finally, the old CFRA would only require employers to provide the 12 weeks of leave total in connection to the birth of the child. So, the father and mother would need to decide how they wanted to split the time, or if either will use the leave entirely. Now, the 12 weeks will be given to both parents.

SB 1383 can be found here.

What do employers need to do?  
Employers should immediately start updating their leaves policy in order to prepare for the January 1, 2021 effective date.

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California Passes Two Related COVID-19 Acts

What happened?
On September 17, 2020, Governor Newsom signed into law AB 685 and SB 1159. Both of these acts create new responsibilities for employers when dealing with COVID-19.

What are the details?  
SB 1159 and AB 685 have created new responsibilities for employers as COVID-19 continues. AB 685 creates new reporting obligations for employers when they are notified of employees testing COVID-19 positive. SB 1159 creates a presumption that if an employee is working (at the workplace) and tests positive for COVID-19, they contracted the virus at work.

AB 685

AB 685 will be effective on January 1, 2021 and requires employers to report new cases of COVID-19 in the workplace. Employers will now be required to give a notice when they are made aware of a COVID-19 infection in the workplace. The notice should be distributed to all employees in the workplace, people who represent the employees (unions and attorneys), and it is recommended that the notice be given to third parties who were in proximity to the infection. The notice will include information about the COVID-19–related benefits that employee or employees may receive. These benefits may include worker’s compensation, COVID-related leave, and paid sick leave. Additionally, the notice should include the company’s anti-discrimination, anti-harassment, and anti-retaliation policies.

Employers will be required to report any COVID-19 outbreaks happening in the workplace to their local public health agency. Outbreaks are defined by the state health department. Employers will be required to have this report sent to the local health department within 48 hours of learning of the outbreak. Employers will also need to report any COVID-19–related fatalities.

Finally, AB 685 will fast track the Cal/OSHA major violations process. Normally employers would be given a 15-day notice by Cal/OSHA to allow the employer to build a defense for themselves. AB 685 will be removing this 15-day notice period. Employers will no longer have a period of time to gather evidence; instead, they will be expected to not have any violations. In instances where there is a violation, it is recommended to employers that they closely inspect the citations they receive, and exercise extreme caution when providing documents to Cal/OSHA.

The classification of an COVID-19 outbreak is available on the State Health Department’s website here.

An article going in more depth on the changes coming from AB 685 can be found here.

SB 1159

An executive order, N-62-20, signed by Governor Newsom back in May 2020 had already created the idea of a rebuttable presumption for the purposes of workers’ compensation. The executive order had expired back in July 2020 without being renewed. SB 1159 acts as a spiritual successor as it re-instates the rebuttable presumption for many employers as well as building more reporting requirements for employers. Beforehand, employers had 30 days to rebut any claim that the employee contracted COVID-19 from the workplace. Fortunately, this had been extended instead to 45 days, if the date of injury is on or after July 6, 2020. Employers must keep in mind that only evidence discovered subsequent to the claim may be used to rebut the claim. The 45 days, however, is not provided in cases for “essential employees.” They instead have the 30 days’ rebuttal period. Some examples of essential employees are fire fighters, police officers, an employee who provides direct patient care, and custodial employees in contact with COVID-19 patients.

The presumption created by SB 1159 applies to all employees who:

  1.  Test positive during an outbreak (defined below) at the employee’s specific place of employment, and
  2. Whose employer has five or more employees. The only injury for which the presumption applies is illness or death resulting from COVID-19.

However, the following conditions must exist for the presumption to apply:

  • The employee tests positive for COVID-19 within 14 days after a day that the employee performed labor or services at the employee’s place of employment at the employer’s direction.
  • The day on which the employee performed labor or services at the employee’s place of employment at the employer’s direction was on or after July 6, 2020. This must be the last date the employee performed labor or services at the employee’s place of employment at the employer’s direction before the positive test.
  • The employee’s positive test occurred during a period of an outbreak at the employee’s specific place of employment.

There are separate reporting requirements for positive tests between July 6, 2020 and up to the date that SB 1159 takes effect. If an employer is aware of an employee who has tested positive during this period, the employer must report the information in the first three bullet points above, via e-mail or fax, to its claims administrator within 30 business days of the date this legislation took effect. However, instead of the last bullet point, the employer must report the highest number of employees who reported to work at each of the employee’s specific places of employment on any work date between July 6, 2020 and the date SB 1159 takes effect. The claims administrator will use the above information to determine whether an outbreak has occurred.

Unlike AB 685, SB 1159 does not defer to the State Health Department’s guidelines on determining an outbreak. Instead, it uses a 14-day window where if any of the following conditions are met, an outbreak is considered to have happened:

  • If the employer has 100 employees or fewer at a specific place of employment, four employees test positive for COVID-19.
  • If the employer has more than 100 employees at a specific place of employment, 4% of the number of employees who reported to the specific place of employment test positive for COVID-19.
  • A specific place of employment is ordered to close by a local public health department, the State Department of Public Health, the Division of Occupational Safety and Health, or a school superintendent due to a risk of infection with COVID-19.

The presumption that the employee contracted COVID-19 from their workplace is only applicable to employees whose workplaces have had outbreaks. If none of the above situations have occurred, the presumption does not exist. Additionally, the employee must test positive during the outbreak.

SB 1159 will expire on January 1, 2023.

Articles summarizing SB 1159 can be found here and here.

The test of SB 1159 can be found here.

What do employers need to do?  
Employers should look to update their reporting procedures in in preparation of AB 685’s effective date. Legal counsel might be necessary for employers if a COVID-19 outbreak occurs in the workplace.

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Cal/OSHA Starts New Campaign Helping Agricultural Workers During Pandemic

What happened?
On September 28, 2020, Governor Newsom signed AB 2043 creating new responsibilities for Cal/OSHA.

What are the details?  
AB 2043 is an emergency bill which tasks the Division of Occupational Safety and Health within the Department of Industrial Relations (Cal/OSHA) with conducting a statewide outreach campaign to inform agricultural employees of their right to receive COVID-19–related employment benefits, including access to paid sick leave and workers’ compensation.

The bill also requires Cal/OSHA to initiate a statewide campaign to educate agricultural workers on best practices related to COVID-19 infection prevention and safety measures, including where to report workplace safety complaints.

As part of the campaign, Cal/OSHA, in partnership with community organizations and employee representatives, will make public service announcements on local Spanish radio stations and distribute workplace signs for employers to post in both English and Spanish.

The full legislation can be read here.

An article summarizing AB 2043 can be found here.

What do employers need to do?  
Employers in the agriculture business should comply with all Cal/OSHA-issued COVID-19–related guidance, as well as provide the resources to ensure their employees are able to understand the guidance as well.

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New Requirements for Minors Working in Entertainment Within California

What happened?
AB 3369 has been signed by Governor Newsom, effective immediately.

What are the details?  
AB 3369 imposes new training requirements for minors working in the entertainment industry. The bill will require minors working with a permit issued by the Labor Commissioner’s office to obtain training on sexual harassment every two years, based on the issuance date of the permit. Employers will then be liable to ensure the previous training received by the minor was compliant upon hire and will then need to schedule the employee’s next training to keep the employee within their two-year window.

The full legislation can be read here.

An article summarizing the legislation can be found here.

What do employers need to do?  
Employers with minor employees in the entertainment industry should create new policies to ensure new minor employees receive the appropriate training or are scheduled to receive it within the compliant time frame.

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Expanded Protections for Employees Who Are Victims of a Crime or Abuse

What happened?
On September 28, 2020, Governor Newsom signed AB 2992, making it effective immediately.

What are the details?  
AB 2992 imposes further limitations on employers from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse. Before the passage of this legislation, under Labor Code section 230, employers were prohibited from discharging an employee for taking time off to serve on a jury or appear in court pursuant to a subpoena or court order. Labor Code section 230.1 required employers of 25 or more employees to allow an employee who was a victim of domestic violence, sexual assault, and/or stalking to take time off to seek medical attention or related services. AB 2992 expands the protections under Labor Code 230 and 230.1 to a victim of a crime, or public offenses as outlined in section 13951 of the Government Code, which caused a physical or mental injury, or a threat of physical injury, regardless of whether any person is arrested for, prosecuted for, or convicted of committing the crime.

The bill also revises the categories of time off work under these circumstances, to include taking time off work to seek medical attention for injuries caused by crime or abuse, to obtain services from prescribed entities as a result of crime or abuse, to obtain psychological counseling or mental health services related to an experience of crime or abuse, or to participate in safety planning and take other actions to increase safety from future crimes or abuse.

Under the amended legislation, an employee shall give advance notice unless it is not feasible. If an unscheduled absence is taken, the employee within a reasonable time must provide one of the following as certification for the absence:

  • A police report,
  • A court order protecting or separating the employee from the perpetrator,
  • Documentation from a licensed medical professional or similar, or
  • Any other form of documentation that reasonably verifies the crime or abuse occurred.

The full legislation can be read here.

An article summarizing the legislation can be found here.

What do employers need to do?  
Employers should update their leave policies to accommodate the increased protection being given to employees. Managers and administrative staff should be trained to recognize the required documents that employees may provide as certification for their absences and what situations employees may utilize their leave.

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AB 1867 Resources

What’s happening?
Vensure has already sent out a stand-alone communication regarding the widely impactful AB 1867. We’d like to provide additional resources below.

The communication Vensure had previously provided regarding AB 1867 can be found here.

Articles going over AB 1867 can be found here and here.

The Department of Industrial Relations (DIR) has provided an FAQ discussing supplemental paid sick leave provided by AB 1867, found here.

AB 1867 (for eligible employers – see communication and articles for more details) requires postings for each employer with eligible employees. The DIR has provided model notices for employers to use.

  • This notice can be used by employers that have 500 or more employees nationwide or public or private employers of healthcare providers and emergency responders that have fewer than 500 employees nationwide if the employer excluded those employees from coverage under the federal Families First Coronavirus Response Act (FFCRA).
  • This notice can be used by employers with 500 or more employees with food-sector workers. Note that the new law (Labor Code section 248) no longer requires that a food-sector worker be a critical infrastructure worker, and the food-sector notice has been revised to reflect that change in the law. This means that if the employer is not a critical infrastructure business but has food-sector workers, they are now required to post this food-sector notice.

What do employers need to do?
Clients with 500 or more employees nationwide, who have any employees performing work in California, will need to reach out to their Client Relations Representative and HR contact to arrange to have their employee(s) supplemental paid sick leave plan set up in the system. Clients who have less than 500 employees and employ healthcare workers or emergency responders performing work in California, who were previously excluded from the FFCRA emergency paid sick leave benefit, will need to also reach out to their Client Relations Representative and HR contact to have their plan set up for those select employees.

Upcoming Voting Notice Requirement

California state law requires employers post a notice about the employee’s rights to voting leave in a conspicuous place where workers will see it. This notice must be posted 10 days before the day of voting. The upcoming election will be held on November 2, 2020. Employers must have the required notice displayed by October 22, 2020.

The required posting can be found here.

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