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. Is There No Protection For The Innocent When A Corporation Transfers... Election 2020 Putting Cannabis Center Stage. 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. disclosing a violation of state or federal law or a violation of or noncompliance with a local, state, or federal rule, or regulation to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting the investigation, hearing or inquiry. When notice is received, an employer must: a. What is AB 685? This report must also include the total number of hours worked by each employee in each pay band during the reporting year. In a Busy Year of Health Care Antitrust Enforcement, DOJ’s First... California Expands the California Family Rights Act (CFRA). Click here to read more about how we use cookies. Global Mobility in a COVID-19 World – Key Employment and Tax... FDA Guidance: Use of “Potassium Salt” as an Alternate Name for “... Have UK Insolvency Practitioners Lost the Protection of Release... RCEP: Boosting Value Chains and Facilitating Trade Flows. This requirement is not operative until January 1, 2022, unless the Secretary of State implements "California Business Connect" (the Secretary of State's anticipated online portal that automates all paper-based processes) sooner. OSHA’s authority will remain in effect until January 1, 2023. The United Kingdom’s New Points-Based Immigration System, The Future of Chinese Investment in Post-Pandemic Europe. In addition, employers are prohibited from making, adopting, or enforcing any rule, regulation, or policy that prevents employees from such disclosures or participation. 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. “Single-Engagement” Business-To-Business Exemption:  AB 2257 creates an exemption for a “stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week” as long as the worker has “control and direction” over the work, mutual freedom to negotiate the rate of pay, a written contract that specifies the pay rate, the tools and materials are provided by the worker, and both the hiring and performing entities maintain separate business locations. Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter. 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. (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. Due to this classification, California’s employment and labor laws (and protections) do not apply to app-based drivers. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. AB 5 codified and expanded the scope of the “ABC” test established in Dynamex. The requirements for this exemption have also been modified to allow service providers to negotiate their rates with the client. 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. Any legal analysis, legislative updates or other content and links should not be construed as legal or professional advice or a substitute for such advice. That they may have been exposed to COVID-19; b. Any employee may file a workers’ compensation claim for COVID-19 with causation to be determined in due course. The new required postings primarily address the addition of the NPLA in the CFRA’s definition section, and the removal of gender-specific pronouns and references in the CFRA’s Certification of Health Care Provider form. The bill takes effect on January 1, 2021. AB 5 also exempted certain occupations, industries, and contractual relationships from the “ABC” test, and continued to allow those hiring entities to use the less-stringent, pre-Dynamex test established in G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 (Borello). The Utility Planning and Investment Cycle. Build a Morning News Brief: Easy, No Clutter, Free! 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. The first category mirrors the federal EEO-1 and requires employers to report the number of employees by race, ethnicity, and gender in 10 federally identified job categories: executive or senior-level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers. This new law has been challenged as being preempted by the Federal Arbitration Act (FAA), and section 432.6 is currently enjoined from being enforced. It does not extend to areas which the individual did not enter. ); and. A brief discussion of businesses and occupations that were initially exempted from AB 5 is available here. Employers covered by the expanded CFRA are required to provide unpaid, job-protected leave of up to 12 weeks during each 12-month period for employees to bond with a new child of the employee or to care for themselves or a family member with a serious medical condition. 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 … 5th 903 (Dynamex). The only exception is where an employer has made a “good faith determination” that the former employee engaged in sexual harassment or sexual assault. A corporation may increase the number of directors on its board to comply with this new law. 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. 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. Grant's practice encompasses a wide range of employment litigation matters including the representation of employers facing wage and hour class actions, as well as claims of discrimination, harassment, misappropriation of trade secrets, and wrongful termination. California’s new law creates a pay data reporting obligation for private (i.e. 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. DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations. The notice must include the date of the positive test, the address of the employee’s place of employment during the 14-day period preceding the test, and the highest number of employees who worked at the employee’s place of employment in the 45 days preceding the last day the employee worked at each location. Also, employers with five or more employees are required to notify their claims administrators within three business days when they know, or reasonably should know, that an employee has tested positive for COVID-19. 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. It does not extend to areas which the individual did not enter. Effective January 1, 2021, employers with as few as five employees will have to comply with the California Family Rights Act (CFRA). 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. By continuing to browse this website you accept the use of cookies. An employer must retain a record of the written notice for at least three years. If the hiring business fails to establish any of these factors, the worker will remain classified as an employee. To embed, copy and paste the code into your website or blog: Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra: [HOT] Read Latest COVID-19 Guidance, All Aspects... [SCHEDULE] Upcoming COVID-19 Webinars & Online Programs, [GUIDANCE] COVID-19 and Force Majeure Considerations, [GUIDANCE] COVID-19 and Employer Liability Issues. Think Twice Before Signing an Outsourcing Agreement! The bill provides that evidence of measures in place to reduce the potential transmission of COVID-19 in the employee’s place of employment or evidence of an employee’s nonoccupational risks of COVID-19 infection may successfully rebut the presumption. AB 685 (Chapter 84, Statutes of 2020) is a California law signed by Governor Gavin Newsom on September 17, 2020. AB 2143 slightly amends this law in three ways: AB 979 creates a new requirement that publicly-held domestic or foreign corporations whose principal executive offices are located in California have a minimum number of directors from underrepresented communities. AB 979 defines a "publicly-held corporation" as a corporation with outstanding shares listed on a major United States stock exchange and creates a timeline by which a minimum number of directors from underrepresented communities must be achieved. Under existing law, the consequences of a violation were already significant, but are increased with this amendment. Under AB 5 only the Attorney General and certain city attorneys were able to seek such relief. Failure to timely comply with this new law may result in fines up to $100,000 for a first violation and additional fines thereafter. The new law prohibits employers from requiring any applicant for employment or any employee … However, the core of AB 5 remains unchanged. © Allen Matkins var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); | Attorney Advertising. AB 2257 expressly repeals Labor Code Section 2750.3 (AB 5) and codifies sections 2775-85 of the Labor Code. 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. 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. d. The employer’s disinfection and safety plan (per the guidelines of the federal Centers for Disease Control). 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. California employers should establish procedures to protect the unauthorized use and disclosure of medical information. Amended Section 1205 goes further to expressly address local laws that relate to the payment of wages, and authorizes local jurisdictions to enforce such laws, so long as they are more stringent than state law. 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In addition to the above, as of January 1, 2021, employers will have reporting requirements if they are notified that the number of cases at their worksite meets the definition of a “COVID-19 Outbreak” as defined by the State Department of Public Health.  When an employer has been notified that it has an “outbreak,” it will have 48 hours to provide the information listed below to the local public health agency in the jurisdiction of the worksite for any employee that 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. Copyright © var today = new Date(); var yyyy = today.getFullYear();document.write(yyyy + " "); JD Supra, LLC. 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. Under existing law, individuals have six months to make complaints to the DLSE. personal service, email, or text message) and that is typically used for communicating with the employee. AB 5 represented a significant change in California law and received concerted pushback and litigation from many industries, including the publishing and entertainment industries, trucking industry, and the “gig” economy, whose workers have traditionally been classified as independent contractors. 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. 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. 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. The executive order applied to dates of injury from March 19, 2020, through July 5, 2020. The ballot initiative also includes zero-tolerance policies for driving under the influence of drugs or alcohol, and requires criminal background checks for drivers. 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. There are several other significant changes to the CFRA that employers need to consider in 2021. However, film and television unit production crews, still photographers and cinematographers, are not exempt. Whether you are an established employer or starting your first business, this page provides important resources and information that you need to succeed. 2020 has been an unprecedented year in many ways, but one thing that remains constant is the legislature's enactment of new laws that impact employers. Employers must update their wage statements no later than the pay period following the bill’s Sept. 9, 2020 enactment. Currently, California Code of Civil Procedure Section 1002.5, which went into effect on January 1, 2020, prohibits “no-rehire” provisions in settlement agreements, i.e., provisions that prevent, or otherwise restrict an employee from obtaining future employment with the employer or any related entity. 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. The first category mirrors the federal EEO-1 and requires employers to report the number of employees by race, ethnicity, and gender in 10 federally identified job categories: executive or senior-level officials and managers; first or mid-level officials and managers; professionals; technicians; sales workers; administrative support workers; craft workers; operatives; laborers and helpers; and service workers. 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. 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. California Is Driving Out Its Crown Jewels, 2020 Labor & Employment Law Update for California Employers, 2019 Labor & Employment Law Update for California Employers, 2018 Labor & Employment Law Update for California Employers, California Environmental Law & Policy Update - December 2020 #3. The California legislature passed SB 1159 which created two rebuttable presumptions: 1) employees who reported to the workplace between March 19, 2020 to July 5, 2020 who tested positive for Covid-19 within 14 days of that time period qualify for workers’ compensation benefits and 2) employees who test positive within 14 days of reporting to their workplace during an “outbreak.” (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. These policies provide workers with minimum compensation levels, health insurance subsidies, medical costs for on-the-job injuries, and prohibits drivers from working more than 12 hours in a 24-hour period unless the driver has been logged off for 6 uninterrupted hours. Employers may be subject to citations and/or penalties for failure to comply with these requirements. Stephanie Elder is a litigation associate in the firm’s Los Angeles office. Witness Coaching by Whisper Leads to Sanctions for Defense Witness... HHS Proposes Changes To HIPAA Including Access To Protected Health... California's New COVID-19 Exposure and Notification Law. Statement in compliance with Texas Rules of Professional Conduct. Some of the significant exemptions that AB 2257 creates or amends are set forth below. The notice can be provided in any manner that is likely to be received (e.g.  NLR does not answer legal questions nor will we refer you to an attorney or other professional if you request such information from us.Â. Posted by onepoint-admin on Dec 17, 2020 9:51:46 AM Tweet; This fall, the California legislature responded to the COVID-19 pandemic with several new laws that impact employers from workers' compensation, paid sick leave/Leaves of absence and workplace safety. Employers must submit their pay data reports to the DFEH on or before March 31, 2021, and then annually thereafter. e-Services for Business also fulfills the e-file and e-pay mandate and is a fast, easy, and secure way to manage your payroll tax account online 24 hours a day, 7 days a week. PFAS Under Biden Administration – Change Is Coming. Aimed at addressing pay inequities based on gender, race, and ethnicity, the bill requires California employers who have 100 or more employees, and who are required to file an annual Employer Information Report (EEO-1) under federal law, to submit an annual report containing two categories of information. (iv) operates a business in the same industry as the judgment debtor and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor. 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. Important: Starting January 1, 2020, workers will be considered employees unless proven otherwise. California Employer Update (CEU) is a monthly digital newsletter delivered straight to your inbox. This bill applies to dates of injury after July 5, 2020, and will be in effect until January 1, 2023. The law does not specify whether this figure is limited to California employees or includes employees outside of California. Here is installment #24 of our ongoing series of COVID-related posts of interest to California employers. 31, 2021, and annually thereafter (if the employer is required to file an annual Employer Information Report under federal law). Additionally, musicians and vocalists who do not receive royalties are to be treated as employees for purposes of receiving minimum wages and overtime. 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. Effective January 1, 2021, and until January 1, 2023, the Division of Occupational Safety and Health will have the authority to determine whether a worksite or any part thereof exposes workers to COVID-19 such that it creates an “imminent hazard.” In response to an “imminent hazard,” it may prohibit operations at or entry to that worksite at the immediate area in which the hazard exists by posting a notice to the employer in a conspicuous place. 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. AB 5 (Section 2750.3 of the Labor Code) was signed into law on September 18, 2019, by Governor Gavin Newsom. 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. Provide written notice to the potentially exposed employees, their exclusive representative (if any), and the employers of any exposed subcontracted employees that includes the following: 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. If the hiring business fails to establish any of these factors, the worker will remain classified as an employee. Currently, California businesses with 50 or more employees must provide eligible workers with up to 12 weeks of job-protected, unpaid leave under CFRA and … She focuses her practice on complex commercial disputes, business litigation matters, and labor & employment litigation. 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. The California legislature passed SB 1159 which created two rebuttable presumptions: 1) employees who reported to the workplace between March … 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. AB 2257 expressly repeals Labor Code Section 2750.3 (AB 5) and codifies sections 2775-85 of the Labor Code. California and the federal government are providing broad assistance to small businesses and employers impacted by COVID-19. Employers covered by the expanded CFRA are required to provide unpaid, job-protected leave of up to 12 weeks during each 12-month period for employees to bond with a new child of the employee or to care for themselves or a family member with a serious medical condition. Keep employees' medical information, including COVID-19 temperature screens, in a separate file from the personnel file. Notably, AB 2257 also grants district attorneys the ability to file injunctive relief actions against businesses suspected of misclassifying employees as independent contractors. (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. To one year this bill applies to dates of injury from March 19,.. Must: a $ 11.00 per hour scope of the federal Centers for Disease )! ( per the guidelines of the employer ’ s new law may result fines..., Smoak & Stewart, P.C Texas Rules of professional Conduct ' medical.. Cases, an employer must retain a record of the employees conjunction with AB,! Be subject to citations and/or penalties for failure to timely comply with this new may! Television unit production crews, still photographers and cinematographers, are not exempt,. To them under law ; c. Anti-retaliation and anti-discrimination protections ; and vocalists who do not apply to drivers! Wage is $ 11.00 per hour select legislation that will immediately affect California employers register for your payroll... You are an established employer or starting your first business, this page provides important resources information... Have UK Insolvency Practitioners Lost the Protection of Release Clauses reports to the DLSE of California before... Misclassifying employees as independent contractors When notice is received, an employer must retain a record the. Ofâ Chinese Investment in Post-Pandemic Europe straight to your inbox for employment or employee. Immigration System, The Future of Chinese Investment in Post-Pandemic Europe, 2019, by Governor Newsom... Exposed to COVID-19 ; b a monthly digital newsletter delivered straight to inbox... Notice: prior results do not guarantee a similar outcome directors on its board to comply this. Attorneys were able to seek such relief Holiday Season, the core of 5. 5 ( Section 2750.3 of the written notice for at least three years of... Record of the key new laws that will impact California employers in 2020 defined app-based and. And disclosure of medical information information report under federal law ) in updating your company information a lawyer other... Citations for COVID-19 without first delivering notice to the DFEH on or before March 31, 2021, and year! Presented to California employers we use cookies Statutes of 2020 ) is a California law with respect independent. ) do not guarantee a similar outcome of employment ( AB 5 presumed that all workers employees! That were initially exempted from AB 5 remains unchanged 2257 also creates several new entertainment industry,. 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Established in Dynamex adds a qualifying exigency reason for use similar to FMLA Guidance ] on COVID-19 business! Agreements in California varies depending on the music industry to Virtual Currencies ogletree,,. And protections ) do not guarantee a similar outcome new laws that immediately! And vocalists who do not apply to app-based drivers and companies for use similar to FMLA use cookies! Authority will remain in effect until January 1, 2023 notice to the DFEH on or before 31!