Assembly Bill 5: This new law codifies the California Supreme Court's decision in Dynamex Operations West, Inc. v. Superior Court (2018) 4 Cal.5th 903 (“Dynamex”) regarding classification of independent contractors. In Dynamex, the Supreme Court set forth a 3-part “ABC” test to establish if a worker is an independent contractor. The new law adopts the “ABC” test, as well as the presumption created by Dynamex that a worker who performs services for an employer is an employee for purposes of wages and benefits under wage orders issued by the Industrial Wage Commission.
Specifically, the new law provides that “for purposes of the provisions of the Labor Code, the Unemployment Insurance Code, and the wage orders of the Industrial Wage Commission, a person providing labor or services for remuneration, shall be considered an employee rather than an independent contractor unless the hiring entity demonstrates that the person is free from the control and direction of the hiring entity in connection with the performance of the work, the person is performing work that is outside the usual course of the hiring entity's business, and the person is customarily engaged in an independently established trade, occupation, or business.”
The new law further provides that if a court finds that the “ABC” test cannot be applied, then the test established in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (“Borello”) must be used to determine if a worker is an employee or an independent contractor. Certain occupations are specifically exempt from the “ABC” test. Instead, the new law provides that the Borello test shall be applied to the following occupations: “licensed insurance agents, certain licensed health care professionals, registered securities broker-dealers or investment advisers, direct sales salespersons, real estate licensees, commercial fisherman, workers providing licensed barber or cosmetology services, and others performing work under a contract for professional services, with another business entity, or pursuant to a subcontract in the construction industry.”
Any statutory exceptions from employment status, as well as any extension of employer status or liability, continue to apply.
Finally, the new law also expands the definition of “employee” to that detailed above for purposes of unemployment insurance.
Assembly Bill 9: Currently, under the Fair Housing and Employment Act (“FEHA”), employees must file a complaint for discrimination or harassment with the Department of Fair Employment and Housing within one year from the date the unlawful practice occurred. The new law extends the time period to file a complaint alleging employment discrimination to three years.
Assembly Bill 25: This new law exempts, until January 1, 2021, job applicants and employees from the definition of “consumer” under the California Consumer Privacy Act (“CCPA”). Thus, employers have one additional year to comply with the requirements of the CCPA, which gives consumers the right to know about data collected about them by businesses and also the right to have certain data deleted.
Assembly Bill 51: This new law prohibits employers from requiring any applicant or employee, as a condition of employment, continued employment, or receipt of any employment benefit, from waiving any right, forum, or procedure for a violation of FEHA or statutes governing employment such as the California Labor Code. The new law further prohibits employers from “threatening, retaliating or discriminating against, or terminating” any applicant or employee who refuses to consent to the waiver of any right, forum, or procedure for a violation of statutes governing employment.
The legality of this new law is questionable as the Federal Arbitration Act (“FAA”) may preempt it. Legal challenges will likely ensue, which may delay the implementation of the law. This firm will monitor any updates.
Assembly Bill 673: This new law authorizes employees to recover statutory penalties from an employer for failure to pay wages. Previously, only the Labor Commissioner had the authority to recover civil penalties for unpaid wages. Now either the employee may recover statutory penalties under Section 98 of the California Labor Code, or the Labor Commissioner may recover civil penalties. The new law provides that employees may recover either statutory penalties or civil penalties under the Private Attorneys General Act (“PAGA”), but not both.
Assembly Bill 749: Under this new law, settlement agreements between an employer and an aggrieved employee may not contain a provision that “prohibits, prevents, or otherwise restricts” an aggrieved employee from working for an employer against which the aggrieved employee has filed a claim. The new law contains exceptions when the employer has made a good faith determination that the employee engaged in sexual harassment or sexual assault or a legitimate nondiscriminatory, nonretaliatory reason exists not to rehire the employee.
Assembly Bill 1223: This new law extends the amount of leave employers must provide to employees who participate in organ donation. Currently, employers must provide 30 days of paid leave within a one year period to an employee who participates in organ donation. Under the new law, employers must grant an additional 30 days of unpaid leave within a one year period to an employee who participates in organ donation.
Senate Bill 83: This new law expands benefits under the paid family leave program. Currently, employees who take time off work to care for a seriously ill family member or to bond with a minor child within one year of birth or placement are entitled to 6 weeks of wage replacement benefits. The new law extends wage replacement benefits to 8 weeks.
Senate Bill 142: This new law expands lactation accommodation requirements currently in effect. Under current law, employers must provide a lactation room, other than a bathroom, in close proximity to an employee's work area for an employee to express milk privately. The new law requires the lactation room to have certain features such as a place to sit and access to electricity or alternative devices needed to operate an electric or battery-powered breast pump. The new law further requires that employers provide access to a sink with running water and a refrigerator suitable for storing breast milk in close proximity to an employee's work area.
Senate Bill 188: This new law expands the definition of “race” under FEHA to include traits historically associated with race such as hair texture and hairstyles. The law provides that “protective hairstyles” include, but are not limited to, braids, locks, and twists. Consequently, any discriminatory employment practices or policies based on hair or protective hairstyles traditionally associated with race are now unlawful, unless a bona fide occupational qualification or applicable security regulations exist.
Senate Bill 688: This new law expands the Labor Commissioner's ability to issue citations to employers for unpaid wages. Current law allows the Labor Commissioner to issue a citation to an employer for failure to pay an employee minimum wage. The new law expands the Labor Commissioner's enforcement power to include the ability to issue citations to an employer for failure to pay wages set by contract even if in excess of minimum wage.
Senate Bill 707: This new law provides that if an employer, or whomever drafted the arbitration agreement, is required to pay fees or costs either to initiate arbitration or during the pendency of an arbitration proceeding and fails to do so, the employer or drafter “is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration.” If such occurs, an employee may either proceed with the claim in court or may compel arbitration. If the employee chooses to compel arbitration, the employer must pay reasonable attorneys' fees and costs associated with the arbitration. If the employee chooses to proceed with the claim in court, the new law provides that the statute of limitations is tolled with regard to any claims brought or that relate back to claims brought in arbitration. Finally, the new law requires a court to issue monetary sanctions to the employer or drafter who materially breaches an arbitration agreement. The court may, in its discretion, impose other sanctions as well.
Senate Bill 778: This new law extends the time within which employers must comply with the sexual harassment training requirements under Senate Bill 1343, which was passed in 2018. Current law requires employers with 5 or more employees to provide at least 2 hours of sexual harassment training to all supervisory employees and at least 1 hour of sexual harassment training to all nonsupervisory employees within 6 months of the employees' assumption of the position. The original deadline within which employers must comply with the sexual harassment training requirements was January 1, 2020. Senate Bill 778 extends the deadline to January 1, 2021 and requires that the training is provided every 2 years. The new law further provides that an employer who conducted the training in 2019 need not provide training again for another 2 years, instead of by the January 1, 2021 deadline.
Senate Bill 530: This new law is related to Senate Bill 778 and extends the deadline to conduct sexual harassment training from January 1, 2020 to January 1, 2021 for employers who hire seasonal, temporary, or other employees hired for less than 6 months. Employers must provide sexual harassment training within 30 days after the employee's date of hire or within 100 hours worked, which occurs first.
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