On September 30, 2020, Governor Newsom signed Assembly Bill 3075 (“AB 3075”) which expands the information corporations must include in the corporation’s statement of information filed with the California Secretary of State. Specifically, AB 3075, requires a corporation to include whether any officer or any director or in the case of a limited liability company, a member or manager, has an outstanding final judgment issued by the Division of Labor Standards Enforcement (“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.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 30, 2020, Governor Newsom signed Assembly Bill 2479, which extends until January 1, 2026, the exemption from the rest period requirements for specified employees who hold a safety-sensitive position at a petroleum facility and are required to respond to emergencies.  Before the passage of this legislation, the exemption was scheduled to remain in effect until January 1, 2021.

The exemption provides that the requirement that employees be relieved of all duties during rest periods will not apply to an employee in a safety-sensitive position at a petroleum facility to the extent that the employee is required to carry and monitor a communication device and respond to emergencies, or is required to remain on the employer’s premises to monitor the premises and respond to emergencies.

The exemption is not without caveats.  Specifically, when a non-exempt employee covered by this section is required to interrupt the employee’s rest period to address an emergency, the employer should authorize another rest period reasonably promptly after the circumstances that lead to the interruption.  If this is not possible, the employer must pay the employee one hour of pay at that employee’s regular rate of pay for the missed rest period. Employers should also know that they are required to furnish an itemized statement of the total hours or total premium owed to an employee for this missed rest period.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 30, 2020, the Governor signed Assembly Bill 323 (“AB 323”), which is intended to support local journalism.

Part of the new law focuses on California’s official advertising, requiring the Department of General Services publish by July 1 each year information relating to payments of placement marketing and outreach advertising material by each state agency.

The latter part of the bill expands exemptions of the application of Assembly Bill 5 (“AB 5”) to newspaper carriers.  Specifically, AB 323 expands the exemption applicable to newspaper carriers by removing the condition that a newspaper carrier works under contract either with a newspaper publisher or newspaper distributor.

AB 5, passed last year and codified and expanded the California Supreme Court case Dynamex Operations West v. Superior Court, creates a presumption that a worker is an employee unless specific requirements are met to allow the individual to act as an independent contractor. AB 323’s exemption from AB 5 for newspaper carriers expires in 2022.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 30, 2020, Governor Newsom signed Assembly Bill 1512 (“AB 1512”), which for the first time allows employers to require their unionized security officers to take on-duty rest breaks.  Historically, employees could agree to take on-duty meal breaks (with certain prerequisites), but the law was silent as to on-duty rest breaks.  In enacting AB 1512, the legislature recognized that security officers must be able to respond to emergency situations without delay, must carry and monitor a communication device at all times, and must remain on the premises and on-call during paid rest breaks.

This law provides much-needed clarity to the applicable meal and rest break standards for security officers in California.  Effective immediately, registered security officers covered by a valid collective bargaining agreement may be required to (1) stay on the premises during rest breaks, (2) remain on-call during rest breaks, and (3) carry and monitor a communication device during their 10-minute rest breaks.

In order for this rule to apply, the collective bargaining agreement must expressly provide for:

  • the employees’ wages,
  • hours of work,
  • working conditions,
  • rest periods,
  • final and binding arbitration of disputes concerning the rest period provisions,
  • premium wage rates for all overtime hours worked,
  • and a regular hourly rate of pay of not less than $1 more than the state minimum wage rate.

If the security officer’s on-duty rest break is interrupted (i.e. if the officer is called upon to return to performing their active duties), the officer may restart the 10-minute rest break as soon as practicable.  A rest break is not “interrupted” just because the officer must remain on the premises, must remain on call and alert, and must monitor a radio or other communication device.  A rest break premium penalty is only owed if the security officer is unable to take an uninterrupted 10-mintue break for every four hours worked or every major fraction thereof.  To the extent this law conflicts with the California Supreme Court’s decision in Augustus v. ABM Security Services, Inc. (2016) 2 Cal.5th 257, the Augustus case is abrogated.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 30, 2020, Governor Newsom signed Assembly Bill 1947, which extends the period to file a discrimination or retaliation complaint to one year with the California Division of Labor Standards Enforcement (“DLSE”) or better known as the Labor Commissioner. Before the passage of this legislation, employees alleging they had been discharged or otherwise discriminated against in violation of any law enforced by the California Labor Commissioner were required to file a complaint with the Division of Labor Standards Enforcement within 6 months after the occurrence of the violation. The Labor Commissioner was required to commence an action to enforce labor standards within 3 years of their accrual.

The extension of the statute of limitations from 6 months to one year is applicable to claims for discrimination or retaliation against an employee regarding any law enforced by the DLSE. Employers should also be aware that there are different statute of limitations for employees to bring other types of claims at the DLSE. For example, an employee has three years to bring a claim for unpaid wages.

There may be an increase in employee claims for violations of Labor Code 1102.5. The statute also now authorizes reasonable attorney’s fees to a plaintiff who brings a successful action for violation of Labor Code 1102.5. Labor Code 1102.5 prohibits an employer from making or enforcing any rule, regulation, or policy that prevents employees from disclosing information that the employee reasonably believes is a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

Governor Newsom signed Assembly Bill 2399 on September 30, 2020, which extended the definitions for Paid Family Leave under Sections 3302 and 3307 of the Unemployment Insurance Code to include additional coverage for active military members and their families.  The existing state Paid Family Leave program provided wage replacement benefits to workers who take time off to care for a seriously ill family member or bond with a minor child within one year of birth or placement.  Effective January 1, 2021,  Paid Family Leave will expand to now include a third category of covered 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.

Existing law under other classifications required certain documentation of a qualifying exigency, including a copy of new active duty orders or other documentation, and this law will provide that new documentation requirement would now apply to a need for Paid Family Leave because of a qualifying exigency.

The new law revises definitions for the purpose of the qualifying exigency provisions, including “care recipient,” “care provider,” and “family care leave” and adds a definition of “military member.”

Jackson Lewis will keep tracking state legislation relevant to employers.  If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

In a continued effort to reduce gender and racial pay gaps, on September 30, 2020, California Governor Gavin Newsom signed into law Senate Bill 973, which creates massive pay reporting requirements for employers.  In 2021, certain California employers will be required to submit annual information on its employees’ pay data by gender, race, and ethnicity to the state’s Department of Fair Employment and Housing (DFEH).  A similar bill was introduced last year (following the EEOC’s court battle), but it failed to clear the necessary hurdles before the end of the legislative session. This year, however, it crossed the finish line.

Specifically, the new law requires employers, (a) with 100 or more employees; and (b) that must file an annual Employer Information Report (EEO-1) under federal law, to submit an annual report to the DFEH that includes the number of employees (and the hours they worked):

  1. By race, ethnicity, and sex;
  2. In each of the Job Categories in the federal EEO-1 Report; and
  3. Whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey.

Employers with multiple establishments must submit a report for each establishment and a consolidated report that includes all employees.  The first report is due to March 31, 2021.

The journey to this new California requirement began in January 2016, when the EEOC announced a revision to the EEO-1 Report to include disclosure of aggregate employee pay data by gender, race, and ethnicity.  The EEOC required employers to begin using the new EEO-1 Report (including pay data) in 2018.  But, in 2017, the Trump Administration postponed this pay data collection indefinitely.  Pay equity advocates challenged this decision, and the Court ordered EEOC to reinstate the collection for the 2017 and 2018 filing years (filed jointly in 2019).  EEOC is currently studying the quality and utility of the pay data it collected.  In the meantime, the EEOC concluded that the burden on employers “far outweigh[s]” the pay data’s “unproven utility” and discontinued all pay data collection efforts.

With this new law, it appears the Golden State balances these interests differently.  According to the legislature, California believes continued data collection will permit the state to “more efficiently identify wage patterns and allow for targeted enforcement of equal pay or discrimination laws.”  Time will tell.

But until then, California employers have a new annual reporting obligation that mirrors the former EEO‑1 pay data report.  Just about everything else, however, is less clear:  What will the form look like?  How many employees must an employer have in California to be covered?  And if an employer is covered, must it report on workforces outside of California as well? 

While there are some uncertainties, there is hope that the state will release additional guidance to assist employers with compliance.

We encourage employers who are interested in taking steps to ensure their pay systems are equitable to contact Jackson Lewis’s Pay Equity Resource Group.

On September 30, 2020, Governor Newsom signed Assembly Bill (“AB”) 979, which requires publicly held corporations headquartered in California to diversify their boards of directors with directors from “underrepresented communities” by December 31, 2021. This bill is similar to Senate Bill 826, signed into law in 2018, which required publicly held corporations headquartered in California to include women on their boards.

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.”  Foreign and domestic publicly held corporations with principal executive offices in California must have at least one director from an underrepresented community on their boards by December 31, 2021.  By December 31, 2022, covered corporations with boards of nine or more directors must have a minimum of three directors from underrepresented communities on their boards, and covered corporations with boards of more than four but less than nine directors must have a minimum of two directors from underrepresented communities.  Corporations may increase the number of directors on their boards to comply with these requirements.

Starting no later than March 1, 2022, the California Secretary of State will publish annual reports on its website documenting compliance with these diversification requirements. Companies that fail to timely comply will be fined $100,000 for the first violation and $300,000 for subsequent violations.

Takeaways

Similar to SB 826, which required gender diversity on boards, AB 979 will likely be challenged on constitutional and other grounds.  Nonetheless, covered corporations and their boards of directors should begin planning for the December 31, 2021 compliance deadline.  Moreover, AB 979 provides covered corporations an opportunity to complement existing diversity and inclusion strategies if the changes are implemented with intentionality by selecting candidates that fit the organization’s business needs and help the organization achieve its diversity and inclusion goals.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

California law already prohibits employers from taking certain employment actions against an employee for refusing to work in some circumstances where there is a real or apparent safety hazard to the employee or other employees. On September 29, 2020, Governor Newsom signed Assembly Bill 2568, which extends that protection to include domestic work employees or employees that perform household services for an individual, such as cleaning, household maintenance, cooking, laundry, ironing, provide care for others, or run household errands.  Before the passage of this legislation, household domestic service workers were not viewed as having the same protections as other employees under California law because of how the concept of an employee was defined in California’s labor code.

This law impacts both individuals and businesses who employ domestic service workers in three important ways.  First, Labor Code section 6310 now explicitly prohibits employers from retaliating against domestic work employees who either (i) complain to a government agency responsible for ensuring employee health and safety (e.g., Division of Occupational Safety and Health (“Cal OSHA”)); (ii) initiate or participate in a proceeding relating to employee health and safety (e.g., participate in a Cal OSHA investigation or inspection or participate in a health and safety committee); (iii) report a work-related fatality, injury, or illness; or (iv) request access to occupational injury or illness reports and records.

Second, Labor Code section 6311 prohibits employers from laying off or terminating domestic work employees who refuse to work in violation of an occupational health and safety law that creates a “real and apparent” hazard to the employee or to fellow employees.  Labor Code section 6310 and 6311 exclude, however, employees who perform household domestic service that is publicly funded.

Third, Labor Code 6311.5 now prohibits employers from “willfully and knowingly” directing a domestic work employee to remain in or enter an area that poses a public health or safety concern.   An employer’s violation of this provision in the Labor Code constitutes a misdemeanor and is subject to criminal penalties under California’s Penal Code.

Following the passage of this legislation, businesses, such as staffing agencies, who employ nannies, childcare providers, caregivers, personal attendants, housekeepers, cooks, and other household workers can face significant liability for a violation of the Labor Code, including civil liability for damages from lost wages, and criminal penalties.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.

On September 29, 2020, Governor Newsom signed Assembly Bill 2537, which significantly expands upon employers’ existing baseline obligations for providing a safe and healthful work environment.  The new bill creates specific requirements regarding general acute care hospitals’ distribution and supply of personal protective equipment (PPE).  Its purpose is to protect healthcare workers from COVID-19.

Before the passage of this legislation, California broadly required that employers provide safe and healthful places of employment and to maintain effective injury prevention programs.  The new statute, applies to both public and private employers, operating general acute care hospitals as defined in California Health and Safety Code Section 1250(a).   Under the statute, general acute care hospitals are required to provide PPE to their employees who provide direct patient care or provide services directly supporting personal care.

The bill also requires those employers to maintain specific stockpiles of specified respirators, particulate filters or cartridges, surgical masks, isolation gowns, eye protection, and shoe coverings. Specifically, beginning April 1, 2021, those employers must maintain a 3-month supply of the specified equipment.  Further, the bill requires employers to establish and implement effective written procedures for periodically determining the quantity and types of equipment used in its normal consumption.

In addition, general acute care hospitals must be prepared to report their highest 7-day consecutive daily average consumption of PPE during the 2019 calendar year to the Department of Industrial Relations.  Employers violating the PPE supply requirement may incur a civil penalty of up to $25,000 for each violation.  However, hospitals may not incur the penalty if the failure to meet the requirements is due to issues beyond their control.

Jackson Lewis will continue tracking state legislation that is relevant to employers. If you have questions about the effects of this or other recent legislation contact a Jackson Lewis attorney to discuss.