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2020 California Labor Law Update Labor Laws that Impact Employers

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Gov. Gavin Newsom signed several bills at the end of the legislative calendar that directly impact California employers. Here’s a reference list:  

 

AB 5: New Rules for Independent Contractors

This new law would transform a large proportion of independent contract workers (1099) into employees (W-2) — such as delivery and transportation drivers—based on new criteria for classification. The new criteria contractors are directed by employers on what to do and how many hours to work; are in the same line of business as the company; and are not independently established—then these contractors will be reclassified as employees. The law also states some workers as exempt from the law, including insurance brokers, doctors, dentists, lawyers, architects, engineers, accountants, and real estate agents. 

 

AB 9: Extends the Deadline to File Workplace Complaints

Extends the time (from one year to three years) in which employees are allowed to file complaints with the Department of Fair Employment and Housing for discrimination or harassment based on race, sex, age, disability, medical conditions, sexual orientation, and other protected characteristics. Claims which have already expired under current law are not restored under AB 9.

 

AB 51: Bans Most Mandatory Arbitration Agreements

Designed to ban forced arbitration agreements among California workers. These agreements often require employees to waive the right to take legal action against their employers for sexual harassment, discrimination, and wage theft, instead resolving complaints through private arbitration. Under the new law, employers are prohibited from revoking a job offer or otherwise retaliating against an employee who decides against signing an arbitration agreement. Even with the governor’s signature, however, AB 51 is likely to face years of litigation and may be significantly tempered.

 

AB 403 Division of Labor Standards Enforcement for Complaints

Extends the statute of limitations for complaints alleging workplace retaliation from six months to two years, and would authorize attorney fees to any employee who successfully sues for retaliation based on whistleblowing.

 

AB 547 Janitorial Workers: Sexual Violence and Harassment Prevention Training

Empowers janitorial workers to serve as peer educators to provide direct training on sexual harassment prevention in the workplace to other janitors at worksites throughout the industry. This isolated and increasingly female workforce is exposed to extreme abuses on the job, including widespread sexual harassment and assault. In many cases, these workers are immigrant women of color who do not always speak English fluently—which impedes their ability to communicate abuse. These peer trainers, which are also called “promotoras” and “compadres,” will receive extensive training on labor law and evidence-based harassment prevention, and will be fluent in the language spoken by the workers they train.

 

AB 673 Penalties for Failure to Pay Wages

Authorizes an employee to pursue a private right of action to recover penalties for the late payment of wages through the Private Attorneys General Act, and would remove the authority for the Labor Commissioner to recover civil penalties in an independent civil action. The bill would prohibit the employee from also recovering statutory penalties for the same violation.

 

AB 749: Ends No-Rehire Provisions in Employee Settlements

A common stipulation in settlements between employers and employees is “no rehire” provisions, which bar the person from ever again applying for work with the company anywhere in the country. Employers can reject the worker outright if they apply for a position or fire them if they happen to be accidentally hired by the company. Starting in 2020, those provisions cannot be included in any settlement agreement that pertains to an employment dispute.

 

AB 1518 Collegiate Athlete Compensation

Allows student-athletes to contract with agents and receive compensation without losing their student-athlete status—provided the contract complies with requirements of the student’s educational institution and bylaws of the NCAA. The Fair Pay to Play Act, SB 206, which passed both houses unanimously and awaits the Governor’s approval or veto and is set to begin January 1, 2023, would, among other things, allow student-athletes to more easily earn compensation from endorsements.

 

AB 1748 – California Family Rights Act: Flight Crews

The federal Family Medical Leave Act (FMLA) provides similar job-protected leave for employees to bond with a child. On December 21, 2009, President Obama signed the Airline Flight Crew Technical Corrections Act, which amended the FMLA to create special hours of service eligibility for airline flight attendants and other cabin crew.

Amends the 1,250 hours of the service eligibility requirement for leave under the California Family Rights Act (CFRA) for flight deck and cabin crew employees to 504 hours of service, provided other conditions are met.

 

AB 1768– Prevailing Wage: Public Works

Existing law requires prevailing wages to be paid to all workers on most public works projects. In general, “public works” is defined to include construction, alteration, demolition, and installation or repair work done under contract and “paid for in whole or in part out of public funds.” These laws aim to provide a wage for these projects that is commonly paid to similar construction workers in a particular region.

 

AB 1804 Reporting Occupational Injuries and Illnesses

Requires employers to report serious workplace injuries, illnesses, or death immediately by telephone or through an online platform to be developed by the Division of Occupational Safety and Health. Until the online platform is available, employers are permitted to make these reports by telephone or email. Noncompliance carries a $5,000 civil penalty.

 

SB 41 Civil Action Damages: Gender, Race Ethnicity

Narrows the consequences of observed differences in pay for groups defined by gender or ethnicity. This bill, applicable to personal injury and wrongful death cases, will forbid any reduction in damages resulting from an estimation, measure, or calculation for past, present, or future damages for lost or impaired earning capacity based on a person’s race, ethnicity, or gender.

 

SB 83 Paid Family Leave Expansion & Task Force

Beginning July 1, 2020, the California Paid Family Leave benefit is extended to eight weeks, from the previous six, paralleling an increase in San Francisco’s Paid Parental Leave benefit. The bill requires the Governor’s Office to convene a task force to develop a proposal by November 2019 to extend the duration of paid family leave benefits to six months by 2021-22, allowing for parents to care for and bond with their newborn or newly adopted child. The November 2019 proposal will also address job protections for workers and the goal to provide a 90 percent wage replacement rate for low-wage workers who utilize the Paid Family Leave program to bond with a child. Approved by Governor Newsom on June 27, 2019, the bill became effective immediately.

 

SB 142 Expands Lactation Accommodation Requirements

Mandates an employer to provide a lactation room, or another location that fulfills the purpose, with access to a sink and refrigerator. A replacement lactation location must be safe, clean, and free of hazardous materials, contain a surface to place materials, contain a place to sit, and have access to electricity or resources necessary to operate a breast pump.

 

SB 188 Hairstyle Discrimination

Expands the FEHA’s definition of race to also include traits historically associated with race, such as hair texture and “protective hairstyle” (e.g., braids, locks, and twists). The bill aims to chip away at “Eurocentric” professional norms by addressing “workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks.” The Legislature has concluded that these policies “have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

 

SB 229 Labor Commissioner Citations

Expands the appeal and enforcement mechanisms available when the Labor Commissioner cites an employer for violating the Labor Code’s anti-retaliation provisions. The bill would establish procedures and deadlines the LC, court, and employers must follow when adjudicating or contesting a citation.

 

SB 271 Employment of Motion Picture Production Workers

Allows temporary or transitory employment performed outside of California to count towards unemployment benefits—as long as the individual is a California resident, is hired and dispatched from the state, and intends to return to the state to seek reemployment following the outside-California work.

 

SB 530 Sexual Harassment Training: Construction and Temporary Employees

Extends the deadline to January 1, 2021for seasonal, temporary, or other employees hired to work for less than six months to begin receiving mandatory sexual harassment training, and incorporates special training provisions for construction industry employers who employ workers pursuant to a multiemployer collective bargaining agreement.

 

SB 671 Payment of Wages for Print Shoot Employees

Known as the “Photo Shoot Pay Easement Act,” authorizes payment of wages to “print shoot employees”—defined as individuals hired for a limited duration to render services relating to or supporting a still-image shoot for use in print, digital, or internet media—on the next regular payday after the employment ends.. This no longer subjects the employer to liability for failure to pay final wages on the last day of employment. In another break for employers, the final wages can be mailed to the employee or made available to the employee at a location specified by the employer, in the county where the employee was hired or performed labor. The payment is also deemed to have been made on the date of mailing, or being made available to the employee at the specified location. The bill thus creates an exception mirroring the one existing for motion picture employees.

 

SB 688 Failure to Pay Wages: Penalties

Expands SSB 229 Labor Commissioner citation authority to include citations for failures to pay contract wages when the Labor Commissioner determines an employer had paid an employee below minimum wage.

 

SB 707 Raises penalties for Failing to Pay Arbitration Claims

Alongside AB 51, this law is an additional restraint for companies with arbitration agreements. Under SB 707, employers that fail to pay arbitration fees or costs in employment or consumer disputes within 30 days of fees being due are considered in default and breach of the agreement. This could lead to additional penalties or require the case be resolved in court.

SB 778: Extends timeline for small businesses to conduct anti-harassment training
Modifies law SB 1343, which requires employers with five or more employees provide supervisory employees with two hours of anti-harassment training. The law also requires non-supervisory employees to receive one hour of anti-harassment training every two years at covered employers. While those provisions remain in place, SB 778 sets the deadline for initial training one year later to Jan. 1, 2021.

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