2021 Employment Law Update
2021 Employment Law Update
Authors: Employment Law Team
This year has been a challenging one for many California employers. They have become an important line of defense in protecting the health and safety of their employees. Many businesses struggle to survive in a very uncertain future while trying to maintain a livelihood for those employees. Added to that priority are many new (and sometimes conflicting) federal, state, and local laws that continue to change the rules regarding how best to govern, manage, compensate, and protect employees, many ironically unrelated to the pandemic. Now, a new federal administration has brought recent changes, and undoubtedly more are yet to come.
Solomon Ward remains committed to assisting employers’ compliance with all existing and new legal requirements.
This summary highlights some of the more significant new laws. This is not an exhaustive list. We encourage you to ask specific questions about laws that may apply to your company. Our team is prepared to help.
A Refresher on 2020 Laws & Regulations Related to the COVID-19 Pandemic:
Families First Coronavirus Response Act (“FFCRA”) & California’s COVID-19 supplemental paid sick leave (“CSPSL”)
Both the FFCRA, which includes the Emergency Paid Sick Leave Act (“EPSLA”), and the CSPSL expired on December 31, 2020. With their expiration, it is no longer mandatory for an employer to grant the EPSLA or CSPSL paid leave to an employee who meets the eligibility requirements of those laws. However, the Consolidated Appropriations Act, 2021, (the new federal stimulus) extended employer tax credits if the employer voluntarily provides EPSLA to employees until March 31, 2021. Employers may voluntarily provide/offer EPSLA leave but need not do so. Employers should check with their tax professional(s) to assess any tax issues and/or potential credits.
Cal/OSHA’s Emergency COVID-19 Regulation for The Workplace
Another major consideration is Cal/OSHA’s Emergency COVID-19 Regulation. (To view our article on that regulation please click here: https://swsslaw.com/2020/12/07/4204/) It requires most California employers to establish, implement, and maintain a COVID-19 Prevention Program (“CPP”). The CPP may be integrated into the employer’s existing Illness and Injury Prevention Program (“IIPP”), or it may be a separate document. Additionally employers are also now required to make testing available to employees and notify public health departments of COVID-19 outbreaks in the workplace.
Perhaps the most significant part of this regulation, for most employers, is a new form of COVID-19 related paid leave. Under certain circumstances, an employee must be excluded from the workplace if the employee was exposed to the coronavirus. If an employee is excluded from the workplace under the regulation, then the employer must “continue and maintain” the excluded employee’s earnings, seniority, and benefits during the employee’s exclusion provided the employee is otherwise able and available to work. There are certain exceptions and many rules to this new regulation. Employers should consult with their legal counsel.
Local and Industry Specific COVID-19 Regulations
There are also numerous local and industry-specific regulations related to COVID-19. Here are links to resources employers may find useful:
- COVID19.CA.GOV: https://covid19.ca.gov/industry-guidance/
- California Department of Industrial Relations – Cal/OSHA and Statewide Industry Guidance on COVID-19: https://www.dir.ca.gov/dosh/coronavirus/Guidance-by-Industry.html
- San Diego County Safe Reopening Guidelines: https://www.sandiegocounty.gov/content/sdc/hhsa/programs/phs/community_epidemiology/dc/2019-nCoV/reopening.html
- Los Angeles County Road to Recovery: http://publichealth.lacounty.gov/media/coronavirus/guidances.htm
- San Francisco.Gov Reopening Guidance: https://sf.gov/topics/reopening
New 2021 COVID-19 Related Laws:
New COVID- Reporting Requirements – AB 685
This law enhances the existing enforcement of COVID19 infection prevention requirements and requires employers to notify certain employees and local health agencies of potential COVID-19 exposure. The changes include:
- Within one business day of an employer being on notice of a potential COVID exposure, employers must notify all employees at a worksite of potential exposures, COVID-19-related benefits and protections, and the disinfection and safety measures to be taken at the worksite in response to the potential exposure.
- Employers must notify local public health agencies of all workplace outbreaks, which are defined as three or more laboratory-confirmed cases of COVID-19 within a two-week period among employees who live in different households.
- For two years beginning January 1, 2021, Cal/OSHA can issue an Order Prohibiting Use (OPU) to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19.
- During the same timeframe, Cal/OSHA can issue citations for serious violations related to COVID-19 without giving employers a 15-day notice before issuance.
New COVID Workers’ Compensation Coverage – SB 1159
This law provides two new rebuttable presumptions that an employee’s illness related to coronavirus is an occupational injury and therefore eligible for workers’ compensation benefits if specified criteria are met.
The presumption is available to an employee who suffered an illness or death from COVID from July 6, 2020 – January 1, 2023. It applies if the employee tested positive during an outbreak at the employee’s specific place of employment and whose employer has five or more employees. But this presumption may be disputed with evidence regarding the Employer’s COVID-19 precautions, and how the employee may have been exposed to risks unrelated to their work. An employer who “knows or reasonably should know that an employee has tested positive for COVID-19” is now required to report certain information to its claims administrator within 3 business days.
New 2021 Laws Unrelated to the COVID-19 Pandemic:
Expansion of CFRA Leave – SB 1383
Perhaps the biggest change to California’s employment laws this year is the expansion of the California Family Rights Act (“CFRA”). Effective January 1, 2021, the CFRA has been expanded to cover employers with five or more employees (rather than employers with 50 or more employees). Now the mandatory leave of absence rights larger employers were already providing for medical and family related reasons apply to smaller employers.
The definition of “family member” under the CFRA has also been enlarged to include children (of any age), siblings, grandparents, grandchildren, and domestic partners. Employees are now permitted to take CFRA leave for a “qualifying exigency” related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the U.S. Armed Forces.
In addition, an employer may now be required to provide 12 weeks to both parents if they work for the same employer. Employers also may no longer refuse reinstatement of a salaried employee among the highest-paid 10% of the employer’s employees.
All employers with five or more employees should update their CFRA policies.
The Test for Independent Contractor Status for Certain Types of Workers Has Changed – AB 2257
AB 2257 revises and/or expands exemptions from the ABC test for certain industries and workers. (Our prior article on the “ABC” test for independent contractors can be found here: https://swsslaw.com/2019/10/11/employment-law-update-fall-2019/) They now include business-to-business contracting relationships; referral agencies; recording artists; musicians; performance artists; freelance writers and photographers, photojournalists, photo editors, videographers, and other content contributors; fine artists; specialized performers who teach “master classes;” registered professional foresters; landscape architects; certain field services for the insurance and financial services industries; appraisers and home inspectors; manufactured housing sales; single-engagement events; international and cultural exchange services; and competition judges.
The new statute sets out very specific criteria for each exception. Employers that utilize independent contractors should closely review AB 2257 to assess whether their workers qualify for independent contractor status.
Diversity of Board Membership – AB 979
Two years ago, we reported on California’s new law requiring publicly-held corporations with principal executive offices in California to have at least one female on their board of directors by the end of 2019. AB 979 now expands the diversification requirements to require those corporations to have at least one board member from an underrepresented community by the end of 2021. The minority representation must increase to two members by the end of 2022 for boards with five to eight members, and three members for boards with nine or more members. AB 979 applies to all publicly-held corporations with principal executive offices in California, regardless of their size.
Expanded Protections for Domestic Violence, Sexual Assault, and Crime Victims – AB 2992
AB 2992 amends California Labor Code Sections 230 and 230.1, which provide employment protections and certain rights to time off of work for employees who are victims of domestic violence, sexual assault, and/or stalking. AB 2992 expands those protections to cover employees who are victims of “crime” or “abuse,” whether or not an individual is arrested, prosecuted, or convicted of committing the crime. Employers should revise applicable policies if they have not done so already.
No Rehire Provision in Settlement Agreements – AB 2143
Existing California law prohibited agreements in which an employee who settles a claim with an employer agrees that he/she will never work for the same employer or its related/affiliated entities. The new law clarifies that the prohibition only applies if the employee filed the claim in good faith.
Also, the existing prohibition did not apply if the employer has made a good faith determination that the individual engaged in sexual harassment or assault. The new law requires that determination of sexual assault or harassment had to be documented by the employer before the individual filed the claim. The bill also expands this exception to include determinations that the aggrieved person engaged in any criminal conduct.
Wage Claims/Arbitration – SB 1384
Labor Code Section 98.4 will now allow the Labor Commissioner to represent a plaintiff in an appeal of the Labor Commissioner’s ruling or an employer’s petition to compel arbitration of a pending Labor Commissioner claim, and/or in any arbitration hearing ordered for resolution of the wage claim.
The Labor Commissioner’s representation of the plaintiff will depend on the plaintiff’s financial inability to afford representation and the Labor Commissioner’s determination of the merits of the claim.
Attorneys’ Fees for Whistleblower Retaliation & Extended Period to File a DLSE Claim – AB 1947
Labor Code section 98.7 is amended to allow an employee one year, instead of six months, to file a claim with the Labor Commissioner if an employee believes that he/she has been discharged or otherwise discriminated against in violation of any law under the jurisdiction of the Labor Commissioner. Labor Code section 1102.5 was also amended to allow an employee who prevails on a claim for certain types of retaliation to recover attorneys’ fees.
On-Call Rest Breaks/Security Industry – AB 1512
This new law is limited to the security services industry. It amends California’s rest break law to allow certain unionized security guards to remain on-site and on-call and to monitor their communication devices during their rest breaks.
Kin Care Leave – AB 2017
Section 122 of the Labor Code permits employees to use at least half of their annual accrual of employer-provided sick leave for “kin care” (family) reasons. AB 2017 does not change the definition of “kin care” but provides that it is up to the employee’s “sole discretion” to designate leave used for this purpose.
Amendments to Paid Family Leave Law – AB 2399
AB 2399 expands wage replacement benefits under the Paid Family Leave program to employees taking time off for participation in a qualifying exigency related to the active duty or call to active duty of the individual’s spouse, domestic partner, child, or parent in the Armed Forces of the United States.
Pay Data Reporting – SB 973
Similar to businesses doing business with the federal government, now all private employers with 100 or more employees must submit a pay data report to California’s Department of Fair Employment and Housing (DFEH) by March 31, 2021, and annually thereafter. The report must include information on the number of employees, by race, ethnicity, and gender, who are employed in certain job categories. The report also must provide pay band data used by the United States Bureau of Labor Statistics for these workers. The report is to assist the DFEH in identifying discriminatory pay practices.
Minimum Wage Increases and Its Effect on Exemptions
Each year, local and California minimum wage(s) are adjusted. This is a chart of the current minimum wage in California and several major cities:
- California: $13.00 / hour (25 or fewer employees) or $14.00 / hour (26 employees or more) Effective January 1, 2021
- City of Los Angeles: $15.00 / hour (26 or more employees) $14.25 / hour (smaller employers) Effective July 1, 2020
- City of San Diego: $14.00 / hour – Effective January 1, 2021
- San Francisco: $16.07 / hour – Effective July 1, 2020
- South San Francisco: $15.24/ hour – Effective January 1, 2021
Because of these increases, starting on January 1, 2021, the annual salary requirement for exempt employees will be $58,240 for employers with 26 or more employees; and $54,080 for employers with 25 employees or fewer.
We also note that President Biden’s administration proposes to increase the minimum hourly wage for federal contractors to no less than $15.00/hour, on the national level.
Two Significant Cases in 2020/2021 that will Affect Multi-State Employers:
Oman v. Delta Air Lines, Inc. and Ward v. United Airlines, Inc.,
In these two parallel cases, the California Supreme Court addressed thorny questions about when California employment law must be applied to employees who occasionally work in California.
These decisions established that an employee is entitled to an itemized wage statement (Cal. Labor Code § 226) and being paid at least twice each month (Cal. Labor Code § 204) if either the majority of the employee’s work during the pay period was in California, or even if it were not, the employee is based in California for work-related purposes.
If any employees occasionally work in California even if not based here, or who are based here but due to their work elsewhere are not treated as a California employee, consult legal counsel to ensure compliance with California labor laws.
We stand ready to assist with advice and practical solutions. If the need arises, we look forward to assisting you with questions regarding your employment practices.
***The information provided in this article is for informational purposes only and not to provide legal advice. Contact your attorney to obtain advice regarding any particular issue or problem. ***