Hill, Farrer & Burrill LLP

Employment Updates

California Legislation Expands Definition of COVID-19 Workers’ Compensation Presumption

On September 17, 2020, Governor Newsom signed Senate Bill 1159 effective immediately, which creates a new framework for COVID-19-related workers’ compensation claims. This Bill creates a rebuttable presumption that certain employees who test positive for COVID-19 contracted the virus at work for workers’ compensation purposes and therefore are eligible for benefits, unless the employer can prove otherwise.

The law also requires employers to provide notice to their workers’ compensation carrier of employees who test positive for COVID-19.

Time Frame of Presumption

A “disputable presumption” exists for an employee who suffers illness or death resulting from COVID-19 from July 6, 2020 through January 1, 2023. More>>

California Legislation Makes COVID-19 Outbreaks Reportable to CAL-OSHA

On September 17, 2020, Governor Gavin Newsom signed AB 685 into law which places certain reporting obligations on the employer relating to COVID-19. It also expands the power of the California Occupational Safety and Health Administration (Cal/OSHA) to enforce and take action to protect employees. AB 685 goes into effect on January 1, 2021.

Notice Requirements to Employees

The new law requires employers to take all of the following actions within 24 hours after the employer has “notice of the potential exposure” to COVID-19, which is defined below: 

  • Provide written notice to all employees, and employers of subcontracted employees who were at the worksite within the infectious period who may have been exposed to COVID-19. 
More>>

California Legislation Expands Employee Coverage Under State Family and Medical Leave Law

On September 17, 2020, Governor Newsom signed Senate Bill 1383 (“SB 1383”), which significantly expands CFRA family and medical leave rights for employees. It goes into effect on January 1, 2021.

CFRA Leave Now Applies to Employers with Five or More Employees

SB 1383 expands the California Family Rights Act (“CFRA”) and the New Parent Leave Act (“NPLA”) to now apply to private smaller employers not covered before. It requires employers with at least five employees to provide an eligible employee with up to 12 workweeks of unpaid job-protected leave during any 12-month period for certain covered reasons. Previously the CFRA applied only to private employers with 50 or more employees within 75 miles of the worksite (and public employers of any size). More>>

California Legislation Regarding Supplemental Paid Sick Leave Relating to COVID-19

On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which requires employers to provide supplemental paid sick leave to the following individuals for reasons relating to COVID-19: (1) food sector employees employed by employers with 500 or more employees in the United States[1]; (2) certain health care providers or emergency responders that employers chose to exempt from the requirements of the federal Families First Coronavirus Response Act (“FFCRA”) pursuant to the FFCRA; and (3) employees employed by private businesses employing 500 or more employees.[2]

This law expires on December 31, 2020, or upon the expiration of any federal extension of the Emergency Paid Sick Leave Act established by the FFCRA, whichever is later. More>>

California’s New Privacy Law Imposes Notice Requirements for Employers

The California Consumer Privacy Act (the “CCPA”) imposes new obligations upon certain businesses regarding their collection, use, storage, and disclosure of consumers’ personal information.  Beginning on January 1, 2021 the definition of “consumers” will include employees and applicants, dramatically expanding privacy rights when it comes to data collection. This will place new requirements on employers to provide privacy notices and to comply with the CCPA or else face substantial penalties.

 

What is the CCPA?

 

The CCPA of 2018 provides robust protections to consumers. The CCPA went into effect on January 1, 2020, and enforcement commenced July 1, 2020. The CCPA also applies to employees and applicants. More>>

Federal Legislation in Response to Coronavirus/COVID-19

On March 18, 2020, the Senate and House passed, and the President signed into law, one of several pieces of federal legislation in response to the Coronavirus/COVID-19 outbreak.  The “Families First Coronavirus Response Act” requires employers with less than 500 employees to provide 12 weeks of paid leave for the reasons and at the rates discussed below.  It also provides corresponding tax credits to employers.

Emergency Paid Sick Leave Act

Under the Emergency Paid Sick Leave Act, the employer must provide 80 hours of paid sick leave to full-time employees (or a pro-rated amount for part-time employees) at the rates below for any of the following reasons related to COVID-19: (1) the employee is subject to a federal, state, or local quarantine or isolation order; (2) the employee has been advised by a health care provider to self-quarantine; (3) the employee is experiencing symptoms and seeking a medical diagnosis; (4) the employee is caring for an individual  who is quarantined due to exposure or symptoms; (5) the employee is caring for a child whose school has been closed or childcare provider is unavailable; or (6) the employee is experiencing any other substantially similar condition.  More>>

Federal Court Enjoins AB 51, California Law Barring Mandatory Employment Arbitration

On January 31, 2020, Judge Kimberly Mueller of the United States District Court in the Eastern District granted a preliminary injunction, which enjoins the state of California from enforcing AB 51.  Previously, on December 30, 2019, Judge Mueller granted a temporary restraining order enjoining the enforcement of AB 51 pending the Court’s ruling on the preliminary injunction.

AB 51 is a California anti-arbitration law signed by Governor Newsom on October 10, 2019 that was scheduled to go into effect on January 1, 2020.  The law prohibits employers from requiring that job applicants or workers sign arbitration agreements as a condition of their employment or continued employment.  More>>

Federal Court Temporarily Blocks AB 51, California Law Barring Mandatory Employment Arbitration

On December 30, 2019, Judge Kimberly Mueller of the United States District Court in the Eastern District granted a temporary restraining order, which enjoins California from enforcing AB 51.  AB 51 is a California anti-arbitration law signed by Governor Newsom on October 10, 2019 that was scheduled to go into effect on January 1, 2020.  The law prohibits employers from requiring that job applicants or workers sign arbitration agreements as a condition of their employment or continued employment.  AB 51 specifically states that it is not “intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act.” More>>

New California Employment Bills Approved by the Governor

October 13, 2019 was the deadline for Governor Newsom to decide whether to approve or veto several employment bills that were passed by the California Legislature in 2019.  The laws signed by Governor Newsom are summarized below and will become effective January 1, 2020 unless otherwise noted.

AB 5 (Independent Contractor v. Employee)

AB 5 codifies Dynamex, a 2018 California Supreme Court decision, and makes workers employees unless the hiring entity demonstrates each of the following factors under the so-called “ABC” test: (A) the person is free from the control and direction of the hiring entity in connection with the performance of the work; (B) the person performs work that is outside the usual course of the hiring entity’s business; and (C) the person is customarily engaged in an independently established trade, occupation, or business. More>>

Reminder Regarding Minimum Wage Increases Effective July 1, 2019

This is a reminder to all employers conducting business in the City of Los Angeles and in the unincorporated areas of the County of Los Angeles, that effective July 1, 2019, minimum wage will increase to $14.25 per hour for employers with at least 26 employees, and to $13.25 per hour for employers with fewer than 26 employees.

Employers conducting business in other cities and counties should review the applicable minimum wage laws in those cities and counties. Effective July 1, 2019, the minimum wage in other cities, including Malibu, Pasadena, Santa Monica, San Jose, Santa Clara, and San Francisco, will also increase. More>>