31 December 2020
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As 2020 comes to a close, many employers have questions about a number of new laws which are about to come into effect. In the article below, JMBM’s Labor and Employment Group have summarized recent changes to labor regulations and provided a snapshot of what to expect in the new year.
Labor & Employment New Year Round-Up
What to Expect in 2021
Several new pieces of California legislation have either recently gone into effect or will take effect on January 1, 2021, impacting nearly all employers and how they handle COVID-19 related issues, leaves of absence, workers’ classification, discrimination disputes, arbitration agreements, union relations, and other miscellaneous issues.
The start of a new presidential administration also brings potential changes to labor regulations; find out what we’ll be watching for, below.
Our round-up will help you determine which key issues may impact you in 2021; contact us to be sure you’re ready for all these upcoming changes. Click the ‘read more’ link for each topic to see a comprehensive summary.
New COVID-19 Reporting Obligations
AB 685 adds to California’s growing list of COVID-19 health and safety related laws, imposing additional reporting obligations on employers and expanding Cal/OSHA’s authority to issue shutdown orders for workplaces that pose a risk of an “imminent hazard” relating to COVID-19.
What this means for employers: Employers should update their written COVID protocols for employees, and prepare template notices that include the information required under the new law.
COVID-19 Workers’ Compensation Presumption
SB 1159 creates a disputable workers’ compensation presumption that illness or death related to COVID-19 is an occupational injury and therefore eligible for benefits.
What this means for employers: The presumption is disputable, meaning that employers have an opportunity to refute the presumption by providing evidence to indicate that an employee did not contract COVID-19 at the workplace. Employers should ensure that they implement adequate measures to reduce potential transmission of COVID-19 in the workplace and that these measures are well documented.
Temporary Cal/OSHA “COVID-19 Prevention Rule”
California’s Office of Administrative Law approved Cal/OSHA’s emergency COVID-19 Prevention Rule, which will remain in effect through at least October 2, 2021. One of the key provisions of the new rule requires California employers to establish and implement a written prevention program tailored toward preventing the spread of COVID-19 in the workplace.
What this means for employers: This rule is expansive and imposes a number of significant burdens on employers. Employers should consult with counsel upon reviewing each of the Rule’s mandates to ensure compliance.
Significant Expansion of Family Leave Requirements to Almost All CA Employers
SB 1383 requires all employers with 5 or more employees to provide eligible employees with up to 12 weeks of job-protected leave under certain circumstances, and expands the list of covered family members for whom employees may use leave to care for to include siblings, grandparents, and grandchildren.
What this means for employer: Navigating the interaction between various leaves promises to become even more complicated with the passage of the new bill. California employers should consult with labor counsel in assessing their obligations under the new law and its interplay with other leave laws, to ensure that they are complying with the mandates of each.
Independent Contractors: AB 2257 Significantly Changes AB 5 on Classification of Workers
California’s statute governing the classification of independent contractors underwent fundamental changes when AB 2257 became law. The new exemptions and revisions apply to exemptions for business-to-business relationships, referral agencies, professional services, performance artists, and other classifications.
What this means for employers: AB 2257 provides additional carve-outs of the rigid ABC test used to determine if employees are independent contractors, but does not necessarily provide safe harbors for businesses seeking to use independent contractors instead of employees for specified roles and aspects of their business. Companies are encouraged to contact qualified labor and employment counsel when bringing on new workers as either independent contractors or employees.
Employee Will Have Sole Discretion to Designate Paid Sick Leave Time
AB 2017 specifies that sick leave being used to care for an employee or employee’s covered family member, or obtain relief if the employee is a victim of domestic violence, sexual assault, or stalking, is at the employee’s “sole discretion.”
What this means for employers: This will primarily impact employers with sick leave policies that provide annual use caps exceeding the minimum requirements of the state and/or any local ordinance. Employers with such policies may consider implementing tracking procedures to differentiate between sick leave use that an employee designates as protected under the bill.
California Has Expanded Protections for Employees Who Are Victims of a Crime or Abuse
AB 2992 which amends and expands the protections given to employees who take time off to serve on a jury, appear in court pursuant to a subpoena or court order, or to seek medical attention if they are the victim of a crime.
What this means for employers: Employers may wish to revise applicable policies and circulate them no later than January 1, 2021. Employers should also consider educating supervisors, managers, and human resources personnel regarding these changes.
New PPE Requirements for Hospitals
Beginning April 1, 2021, California hospitals will be required to maintain a stockpile of new, unexpired, and unused personal protective equipment and ensure that employees use the PPE that is supplied to them. Hospitals must stockpile the seven types of personal protective equipment in an amount equal to three months of normal consumption.
What this means for employers: Hospitals that do not already do so should start monitoring the incoming and outgoing personal protective equipment, as this will provide them with the information they will need to start complying with the law in April 2021.
New Diversity Requirements for Boards of Directors of California-Based Publicly Held Corporations
AB 979 requires publicly-held corporations headquartered in California to diversify their boards to include “director(s) from an underrepresented community.” The number of required directors from underrepresented communities depends on the size of the board, and increases over time.
What this means for employers: Covered corporations should start preparing for the 2021 deadline, including – if necessary – expanding their boards to comply with these requirements and/or making hiring decisions.
No Rehire Clauses in Settlement Agreements in Employment Disputes
AB 2143 permits the use of no-rehire provisions in the settlement agreements of employment-related disputes where the aggrieved party has engaged in sexual harassment, sexual assault, or any criminal conduct.
What this means for employers: An employer may only lawfully include the no-rehire provision when the employer has made and documented a good faith determination – before the aggrieved person filed the claim – that the aggrieved person engaged in certain types of criminal conduct.
Employers May Now Require Certain Security Officers to Remain on Premises and On Call During Rest Periods
AB 1512 determines that it is in the public interest that security officers are able to respond to emergency situations without delay, and requires that if officers are called to perform active duties before the end of a rest period, they can restart that rest period as soon as practical.
What this means for employers: Companies employing security officers should adjust how they track rest periods to accommodate the new requirements, and ensure that officers take all required breaks to avoid fines.
New Data Reporting Requirements for Employers
Beginning January 1, 2021, private employers with 100 or more employees who are required by federal law to file an annual Employer Information Report will also be required to report to the DFEH pay and hours-worked data by job category and by sex, race, and ethnicity.
What this means for employers: Because the pay data report due in 2021 will be based on pay data from this year, employers should begin preparing for compliance by ensuring that they can generate the required data for their first reports. Employers should work with counsel to review their pay practices and assess any pay disparities that may exist.
New Requirements for Corporations’ Statement of Information
AB 3075 requires a corporation to include in their statement of information filed with the California Secretary of State whether any officer or director of a company (or in the case of a limited liability company, a member or manager) has an outstanding final judgment issued by the DLSE or court of law for a violation of any wage order or labor code violation. AB 3075 also provides that a successor to any judgment debtor shall be liable for any wages, damages, and penalties owed to a judgment debtor’s workforce pursuant to a final judgment.
What this means for employers: Corporations and LLCs should ensure that this type of information is disclosed in their statements of information filed with the California Secretary of State in 2021.
Labor Code Complaints with the DLSE, Representation of Financially Disabled Persons, and Sexual Harassment Prevention Training for Minors in Entertainment
AB 1947, SB 1384 and AB 3175 will impact discrimination complaints, representation of indigent claimants, and requirements for minors working in entertainment.
What this means for employers: Employers should consult with appropriate counsel to determine if any of these new bills impact planning or compliance in 2021.
Anticipated Changes in Labor – Management Relations Laws Under a Biden Administration
As President-elect Joe Biden prepares to take office in January, employers across the nation are best advised to prepare for the likely changes coming under his administration. Biden himself made that very clear on the campaign trail when he pledged to “check the abuse of corporate power over labor” and to “hold corporate executives personally accountable for violations of labor laws.”
While significant changes through Congressional legislation over the next two years will depend on how the runoff elections in Georgia for the last two undecided U.S. senate seats turn out (both seats need to go to Democrats for Biden’s party to wrest control from the Republicans), there’s still much Biden can do through department and board appointments, as well as executive orders.
JMBM’s Labor and Employment attorneys counsel businesses and management on workplace issues, helping to establish policies that address problems and reduce job-related lawsuits. We act quickly to resolve claims and aggressively defend our clients in all federal and state courts, before the Department of Labor, the NLRB, and other federal, state and local agencies, as well as in private arbitration forums. We represent employers in collective bargaining negotiations and arbitration.
For more information or assistance . . .
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This is Jim Butler, author of www.HotelLawBlog.com and founding partner of JMBM and JMBM’s Global Hospitality Group®. We provide business and legal advice to hotel owners, developers, independent operators and investors. This advice covers critical hotel issues such as hotel purchase, sale, development, financing, franchise, management, ADA, and IP matters. We also have compelling experience in hotel litigation, union avoidance and union negotiations, and cybersecurity & data privacy.
JMBM’s Global Hospitality Group® has helped clients around the world with more than 4,300 hospitality properties worth more than $104.7 billion. Contact me at +1-310-201-3526 or jbutler@jmbm.com to discuss how we can help.