(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. 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. 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. Employers with 20-49 employees now have to post information on the available baby-bonding benefits, and employers with 50 or more employees have to update their previous postings. 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. In most cases, an employer payroll tax account number is issued within a few minutes. Attorney Advertising Notice: Prior results do not guarantee a similar outcome. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. Have UK Insolvency Practitioners Lost the Protection of Release Clauses. However, the core of AB 5 remains unchanged. Violation of Section 1102.5 is currently a misdemeanor and may lead to actual damages (Labor Code §1105) and/or a civil penalty of $10,000 for each violation (Labor Code § 1102.5(f)). 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. In a Busy Year of Health Care Antitrust Enforcement, DOJ’s First... California Expands the California Family Rights Act (CFRA). The ballot initiative defined app-based drivers as workers who (a) provide delivery services on an on-demand basis through a business’s online-enabled application or platform or (b) use a personal vehicle to provide prearranged transportation services for compensation via a business’s online-enabled application or platform. Second, AB 2143 expands upon this “no-rehire” exception such that no re-hire provisions are allowed when the former employee engaged in “any criminal conduct,” (i.e., no longer limited to sexual harassment or sexual assault). Effective January 1, 2021, employers with as few as five employees will have to comply with the California Family Rights Act (CFRA). By seven days after the law's effective date, the California Labor Commissioner must make available a model notice to provide to workers. Unless otherwise noted, attorneys are not certified by the Texas Board of Legal Specialization, nor can NLR attest to the accuracy of any notation of Legal Specialization or other Professional Credentials. Second, AB 2143 expands upon this “no-rehire” exception such that no re-hire provisions are allowed when the former employee engaged in “any criminal conduct,” (i.e., no longer limited to sexual harassment or sexual assault). The executive order applied to dates of injury from March 19, 2020, through July 5, 2020. Determine which employees, including subcontracted employees, were at the worksite at the same time as the individual during his or her “infectious period,” which the California State Department has determined includes “at minimum, the 48 hours before the individual developed symptoms.” The “worksite” is limited to the same building or location where the individual was physically present. Labor & Employment Law Section Executive Committee 2014-2015; Cases Pending Before the California Supreme Court; Masthead; Nlra Case Notes; The Interactive Process Dance: What Happens When the Music Stops? Shortly thereafter, on Election Day 2020, California voters further amended AB 5 by passing Proposition 22 which defines app-based drivers – for companies such as Uber, Lyft, and Door Dash – as independent contractors. In addition, employers are prohibited from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from such disclosures or participation. 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. Build a Morning News Brief: Easy, No Clutter, Free! A brief discussion of businesses and occupations that were initially exempted from AB 5 is available here. 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. 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. AB 5 (Section 2750.3 of the Labor Code) was signed into law on September 18, 2019, by Governor Gavin Newsom. While AB 2257 addressed the grievances that many industries and freelance workers had with AB 5, it declined to offer exemptions to other industries, such as app-based transportation companies. Under existing law, individuals have six months to make complaints to the DLSE. California voters were definitive in their support of Proposition 22, with nearly 10 million voters approving the Proposition. Second, it creates a presumption of compensability for employees (a) whose employers have five or more employees; (b) who test positive within 14 days of a workday occurring at a worksite that is not their home (unless a caregiver); and (c) who test positive during an “outbreak” at their workplace. The following update provides a brief overview of select legislation that will immediately affect California employers. 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. The only exception is where an employer has made a “good faith determination” that the former employee engaged in sexual harassment or sexual assault. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). 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. 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. Finally, this bill amends Labor Code Section 1205, which currently states that local jurisdictions are not precluded from enforcing their own local labor laws that are more stringent than state law. Such complaints can lead to an investigative hearing and remedial action (e.g., rehiring or reinstatement, reimbursement of lost wages, penalties). The new laws are related to COVID-19, leaves of absences, discrimination, and independent contractors. Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter. refusing to participate in an activity that would result in a violation of state or federal statute, or violation of or noncompliance with a local, state, or federal rule, or regulation. 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. In last year’s alert, we noted that AB 51, codified as Labor Code section 432.6, would prohibit employers from requiring employees to enter into arbitration agreements covering claims under the Fair Employment and Housing Act (FEHA) and the Labor Code as a condition of employment. AB 685 (Chapter 84, Statutes of 2020) is a California law signed by Governor Gavin Newsom on September 17, 2020. The new law prohibits employers from requiring any applicant for employment or any employee … 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. So because the CFRA has a mandatory written policy requirement for employers doing business in California, all covered employers should implement an updated CFRA/FMLA or new CFRA policy and any associated notification letters and designation forms. 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. 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. 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 ballot initiative defined app-based drivers as workers who (a) provide delivery services on an on-demand basis through a business’s online-enabled application or platform or (b) use a personal vehicle to provide prearranged transportation services for compensation via a business’s online-enabled application or platform. Under certain state laws the following statements may be required on this website and we have included them in order to be in full compliance with these rules. However, SB 1159 creates a new presumption of compensability for two classes of employees. 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. 3. AB 2257 expressly repeals Labor Code Section 2750.3 (AB 5) and codifies sections 2775-85 of the Labor Code. non-government entity) California employers with 100 or more employees that are required to file an annual, federal Employer Information Report (EEO-1). 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. 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. 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. Maintaining accurate employer information with the California Department of Child Support Services benefits employers by ensuring notices are sent to the proper location and preventing issuance of duplicate notices. 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. 5th 903 (Dynamex). Under existing law, individuals have six months to make complaints to the DLSE. 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. On September 19, 2020, Governor Gavin Newsom signed into law a sweeping amendment to California's Family Rights Act (CFRA). Starting January 1, 2021, AB 1947 extends this time period for filing a complaint to one year. 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. AB 1947 changes this by adding Section 1102.5(j), which authorizes courts “to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.” This change will likely lead to more whistleblower claims, as more often than not, attorneys’ fees provisions are a driver of litigation. 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 California legislature passed SB 1159 which created two rebuttable presumptions: 1) employees who reported to the workplace between March … (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. An “outbreak” exists if one of the following occurs within a period of 14 days at a specific place of employment: Four employees test positive (if the employer has 100 or fewer employees); Four percent of the number of employees who reported to the worksite test positive (if the employer has 100 or more employees); or. 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. Any employee may file a workers’ compensation claim for COVID-19 with causation to be determined in due course. He also counsels companies on various compliance issues involving free speech in the workplace, the preparation of employee handbooks, sexual harassment training, executive employment agreements, and adhering to ADA regulations for company websites and mobile... Dwight L. Armstrong is a partner in the firm's Orange County office. This information is intended to help the claims administrator determine whether there is an “outbreak” at the worksite such that the presumption may be applicable. For California employers, 2020 carries a whole set of new legal obligations. The DFEH intends to issue standard forms for employers to submit their pay data reports and will implement an employer submission portal on the DFEH website. However, SB 1159 creates a new presumption of compensability for two classes of employees. For employers with 25 or fewer employees, the new minimum wage is $11.00 per hour. 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. Federal Court Orders Creation of Two Massive Data Privacy... Georgia PSC Pole Attachment Ruling to Promote Broadband. California’s worker classification laws are rapidly developing and businesses operating in California must understand and adapt to these developments, in order to fit their workers into this ever-changing classification scheme. Effective January 1, 2021, all employers except for health facilities must take the steps outlined below within one business day of receipt of notice that its workforce was exposed to an individual who either tested positive for COVID-19, was diagnosed with COVID-19 by a licensed healthcare provider, was ordered by a public health official to isolate due to COVID-19, or was determined by the county public health department to have died due to COVID-19. There are several other significant changes to the CFRA that employers need to consider in 2021. An employer must retain a record of the written notice for at least three years. Provide written notice to the exclusive representative (if any) of all employees within item 1, that contains the same information that would be required for an incident report within a Cal/OSHA Form 300 Injury and Illness Log (unless inapplicable or unknown), even if the organization is not required to maintain such a log. First, it creates a presumption of compensability for certain first responders and healthcare workers (listed in Labor Code § 3212.87) who test positive for COVID-19 within 14 days of a workday occurring at a worksite that is not their home. 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. Effective January 1, 2021, not only will CFRA apply to employers having as few as five employees, but it will also extend leave rights to employees who care for grandparents, grandchildren, siblings, adult children, and other family members with serious medical … However, there are no other carve-outs. 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. Stephanie has experience in antitrust, commercial contracts, franchise law, labor and employment, and... You are responsible for reading, understanding and agreeing to the National Law Review's (NLR’s) and the National Law Forum LLC's  Terms of Use and Privacy Policy before using the National Law Review website. An “outbreak” exists if one of the following occurs within a period of 14 days at a specific place of employment: 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. 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