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. Non-independent music publicists are also not exempt. 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. Build a Morning News Brief: Easy, No Clutter, Free! AB 3075, effective January 1, 2021, makes it easier for workers to enforce judgments for unpaid wages by making certain successor businesses liable for their predecessor’s unpaid wage and hour judgments. A brief discussion of businesses and occupations that were initially exempted from AB 5 is available here. These new requirements are in addition to the requirements enacted last year, requiring female representation on such corporate boards, set forth in California Corporations Code section 301.3, as detailed in our firm’s alert from last year. AB 2257 also removes the submission requirement which allows for more workers to fall under this exemption. 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). 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)). Dear Employers: Thank you for visiting our website and for your interest in updating your company 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. However, SB 1159 creates a new presumption of compensability for two classes of employees. Dwight has also handled numerous trade secret, no-solicitation and unfair competition cases. In addition, Dwight’s practice involves substantial preventative counseling and advice,... Melissa Bell works closely with clients to resolve employment matters through arbitration, mediation, and/or litigation. 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. 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. 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 second category requires employers to report the number of employees by race, ethnicity, and gender whose annual earnings fall within each of the pay bands used by the U.S. Bureau of Labor Statistics in the Occupational Employment Statistics survey, which ranges from a low of “less than $19,239” to a high of “more than $208,000” based on W-2 wages. Proposition 22 defined app-based transportation and delivery drivers as independent contractors and adopted certain labor and wage policies specific to app-based drivers and companies. It should be read in conjunction with AB 685, which implements various notice requirements for cases of COVID-19 in the workplace. 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. Ogletree, Deakins, Nash, Smoak & Stewart, P.C. AB 2257 also adds translators, copy editors, and illustrators to this exemption provided that work is performed under a contract that specifies the rate of pay, time of payment, and intellectual property rights. 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. She defends employers in matters involving harassment, discrimination, retaliation, wrongful termination, wage and hour, and whistleblower claims. 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. 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. 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. 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. Stay tuned as to how this litigation turns out and the impact on arbitration agreements in California. Under Labor Code section 98.7, the Division of Labor Standards Enforcement (DLSE) has jurisdiction to investigate complaints of discharge or discrimination in violation of any law within the jurisdiction of the DLSE. ); and. The California legislature passed SB 1159 which created two rebuttable presumptions: 1) employees who reported to the workplace between March … On September 17, 2020, Governor Newsom signed into law AB 685, which will go into effect on January 1, 2021. AB 3075, effective January 1, 2021, makes it easier for workers to enforce judgments for unpaid wages by making certain successor businesses liable for their predecessor’s unpaid wage and hour judgments. “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. ); and. Use e-Services for Business to register for your employer payroll tax account number. 3. On September 30, 2020, Governor Newsom signed SB 973, which requires certain employers to collect and submit compensation data to the California Department of Fair Employment and Housing (DFEH). SEC Adopts Final Resource Extraction Disclosure Rules; Duplicative... Florida Receives EPA Approval to Assume Clean Water Act Section 404... TCPA NIGHTMARE: Court Grants $122k Summary Judgment Against Debt... CFTC Extends Temporary No-Action Relief From Trade Execution... Ontario Government Extends COVID-19 Period Until July 3, 2021. “EEOC Explore” Tool Launched to Provide Greater Transparency and... Brexit and Its Effect on European Union Trademarks. 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. With the new year, the state minimum wage became $13.00 per hour for employers with 26 or more employees and $12.00 per hour for employers with … 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. Â, Some states have laws and ethical rules regarding solicitation and advertisement practices by attorneys and/or other professionals. The National Law Review is not a law firm nor is www.NatLawReview.com  intended to be  a referral service for attorneys and/or other professionals. Labor Code section 1102.5 broadly prohibits whistleblower retaliation. Here is installment #24 of our ongoing series of COVID-related posts of interest to California employers. Miscellaneous Exemptions: Subject to certain requirements, AB 2257 also adds exemptions for individuals engaged in underwriting inspections and other services for the insurance industry; manufactured housing salespersons; certain individuals engaged by international exchange visitor programs; and competition judges. The report must include the number … The law does not specify whether this figure is limited to California employees or includes employees outside of California. 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. California Employer Update (CEU) is a monthly digital newsletter delivered straight to your inbox. Some of the significant exemptions that AB 2257 creates or amends are set forth below. That they may have been exposed to COVID-19; b. The ballot initiative also includes zero-tolerance policies for driving under the influence of drugs or alcohol, and requires criminal background checks for drivers. 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. 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. 2021 California Labor Law Updates Employers Need To Know. Law Firms: Be Strategic In Your COVID-19 Guidance... [GUIDANCE] On COVID-19 and Business Continuity Plans. 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. CFRA no longer has a provision permitting employers to provide fewer than 12 weeks for leave in connection with the birth, adoption, or foster care placement of a child if both parents work for the same employer. Employers may be subject to citations and/or penalties for failure to comply with these requirements. She focuses her practice on complex commercial disputes, business litigation matters, and labor & employment litigation. Professional Services Exemption: AB 2257 expands the professional services exemption set forth under AB 5 for still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists who had more than 35 submissions in a year. The new law also allows OSHA to order a facility closed if it deems the potential for COVID-19 infection an “imminent hazard” for employees at that facility. 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. Third, AB 2143 clarifies that the prohibition against “no-rehire” provisions in settlement agreements does not apply where the former employee did not file their complaint in good faith. The bill takes effect on January 1, 2021. Some positions that are generally exempt include: recording artists; songwriters, lyricists, composers, and proofers; managers of recording artists; record producers and directors; musical engineers, mixers, and musicians engaged in the creation of sound recordings; vocalists; and independent radio promoters. personal service, email, or text message) and that is typically used for communicating with the employee. AB 5 (Section 2750.3 of the Labor Code) was signed into law on September 18, 2019, by Governor Gavin Newsom. 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. 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. 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. OSHA will also be able to issue “serious violation” citations for COVID-19 without first delivering notice to the employer with an opportunity to respond. 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 National Law Review is a free to use, no-log in database of legal and business articles. The content and links on www.NatLawReview.com are intended for general information purposes only. By continuing to browse this website you accept the use of cookies. 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. 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. 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. However, the new CFRA (SB 1383) expands the scope and requires compliance employers with five or more employees and also eliminates the requirement that employees work within 75 miles of the same worksite. 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. 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. 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. However, the core of AB 5 remains unchanged. 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. The bill seeks to prevent employers from evading unpaid wage and hour judgments by discontinuing the judgment debtor entity, only to form a new business entity that is substantially similar to the prior entity. For employers with 25 or fewer employees, the new minimum wage is $11.00 per hour. 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. The CFRA previously only applied to private employers with 50 or more employees within 75 miles of the worksite. The only exception is where an employer has made a “good faith determination” that the former employee engaged in sexual harassment or sexual assault. ; Requires the California Department of Public Health (CDPH) to publicly report information on workplace … This report must also include the total number of hours worked by each employee in each pay band during the reporting year. 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. Also beginning January 1, 2021, and until January 1, 2023, if OSHA alleges that there has been a “serious violation” due to COVID-19, it need not deliver to the employer a standardized form containing the alleged violation descriptions prior to issuing its citation as would otherwise be required. 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. 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. There are several other significant changes to the CFRA that employers need to consider in 2021. 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. Description. Also be able to seek such relief and transactional matters employer ’ s employment and Labor (. 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