On September 29, 2020, the Governor signed Assembly Bill 1963 which amends Section 11165.7 of the Penal Code, relating to mandated reporters of child abuse.

The existing law, the Child Abuse, and Neglect Reporting Act, requires a mandated reporter, as defined, to report whenever they, in their professional capacity or within the scope of their employment, have knowledge of or observed a child whom the mandated reporter knows or reasonably suspects has been the victim of child abuse or neglect.  Failure by a mandated reporter to report an incident of known or reasonably suspected child abuse or neglect is a misdemeanor punishable by up to six months of confinement in a county jail, by a fine of $1,000, or both.  Under existing law, employers are strongly encouraged to provide their employees who are mandated reporters with training in these duties, including training in the identification and reporting of child abuse and neglect.

This bill adds a human resource employee of a business with five or more employees that employ minors to the list of individuals who are mandated reporters.  The bill also adds, for the purposes of reporting sexual abuse, an adult whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace of a business with five or more employees to the list of individuals who are mandated reporters.  The bill requires those employers to provide their employees who are mandated reporters with training on identification and reporting of child abuse and neglect.  By imposing the reporting requirements on a new class of persons, for whom failure to report specified conduct is a crime, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state.  Statutory provisions establish procedures for making that reimbursement.  This bill provides that no reimbursement is required by this act for a specified reason.

What does this bill mean for California employers?

Any California employer with five or more employees that employ minors will have to provide training on identification and reporting of child abuse and neglect to the following two new classes of mandated reporters – (1) all human resources employees and (2) all adults whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace.

Also, although this new law imposes a state-mandated local program on local agencies and school districts by requiring training on identification and reporting of child abuse and neglect, California employers who are subject to this new law will not be able to seek reimbursement for the costs of such training.

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 28, 2020, Governor Newsom signed Assembly Bill 1731 (“AB 1731”), which creates an alternative process for employers to submit and be approved for work-sharing plan programs. Previously some employees would be eligible for unemployment benefits if they were working less than their usual weekly hours and their employer was participating in a work-sharing plan that met specified requirements and was approved by the Director of Employment Development. Employers were required to submit to the director a signed, written work-sharing plan application form that met specific requirements.

AB 1731 mandates that the Director of Employment Development must accept an application to participate in, or renew participation in, the work-sharing program that is submitted electronically and would require the Employment Development Department (“EDD”) to create a portal on its website for the receipt of applications for work share. Moreover, for work-sharing plan applications submitted by eligible employers between September 15, 2020, and September 1, 2023, the bill requires that, upon approval by the director, they are deemed approved for one year, except as specified. The bill also requires the EDD to make online claim forms available to the approved employer for each participating employee within five business days following approval of the application if an employer submitted its work-sharing plan application online. Upon completion of the documents in the claim packet, the department would establish an unemployment insurance claim pursuant to applicable requirements.

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 28, 2020, Governor Newsom signed Senate Bill 1384, which (1) expands the California Labor Commissioner’s representation to arbitrations for claimants who cannot afford counsel, (2) requires employers to serve petitions to compel arbitration on the Labor Commissioner, and (3) allows the Labor Commissioner to represent claimants in proceedings to determine whether arbitration agreements are enforceable.

SB 1384 modifies Labor Code section 98.4, which previously provided only that the Labor Commissioner could represent indigent claimants in de novo proceedings (appeals of Labor Commissioner wage claim awards).  SB 1384 keeps Section 98.4’s original language but adds two new subparts, which provide at (b) and (c), respectively:

  • Where a claimant cannot have their wage claim adjudicated by the Labor Commissioner under Sections 98 and 98.1 due to a court order compelling arbitration, at the claimant’s request, the Labor Commissioner must represent the claimant in the arbitral proceeding if (1) the claimant is financially unable to afford counsel, and (2) the Labor Commissioner determines, upon conclusion of an informal investigation, that the claim has merit; and
  • Petitions to compel arbitration of Section 98, 98.1, or 98.2 claims must be served on the Labor Commissioner and, upon request, the Labor Commissioner may represent claimants in proceedings to determine the enforceability of the arbitration agreement (regardless of whether arbitrability is determined by a judge or an arbitrator).

Going forward, employers will need to be sure to serve petitions to compel arbitration of Section 98, 98.1, and 98.2 wage claims on the Labor Commissioner and can expect to see an increase in challenges to the arbitration of such claims, as well as increased legal representation in the arbitration of such claims.

The subpart (b) provision regarding the Labor Commissioner’s informal investigation to determine the claim’s merits is a new provision for which there is presently no specific precedent or guidance.  Jackson Lewis will track how this investigation provision is applied and 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 28, 2020, Governor Newsom signed Assembly Bill 2017, which revises Labor Code § 233 (also known as the “Kin Care” law) to provide that an employee has the right to designate sick leave as for kin care; or for the employee’s own health condition or for obtaining relief if the employee is a victim of domestic violence, sexual assault, or stalking. As such, employers should revise sick leave policies to ensure that employees are aware of their right to designate.

By way of background, employers are currently required to permit employees to take up to half of their accrued sick leave to care for a family member (also known as “kin care”). “Family member” for purposes of kin care is defined by Labor Code §§ 233 and 245.5(c) to include an employee’s child, parent or guardian, spouse or registered domestic partner, grandchild, grandparent, and sibling.

To avoid an employer’s erroneous designation of the use of sick days as kin care (and the depletion of kin care) when the sick days were actually taken for personal sick leave, Assembly Bill 2017 provides employees with the right to designate what type of sick days they are taking.

Assembly Bill 2017 does not alter Labor Code § 233 insofar as employers remain prohibited from taking discriminatory action against an employee for requesting or using sick leave.

Any employee aggrieved by a violation of these provisions is entitled to reinstatement and actual damages or one day’s pay, whichever is greater, and to appropriate equitable relief.

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, please contact a Jackson Lewis attorney to discuss.

On September 28, 2020, Governor Newsom signed Assembly Bill 2043 (“AB 2043”) which tasks the Division of Occupational Safety and Health within the Department of Industrial Relations (“Cal/OSHA”) with conducting a statewide outreach campaign to apprise Agricultural employees of best practices for coronavirus (“COVID-19”) infection prevention and their right to receive COVID-19-related employment benefits, including access to paid sick leave and workers’ compensation.

Anticipated Guidance for Agricultural Employees

Under the emergency bill, Cal/OSHA will disseminate information, in both English and Spanish, on COVID-19 infection prevention available on the agency’s website and in current Guidance Documents, including:

  • Cal/OSHA Interim Guidelines on Protecting Workers from COVID-19,
  • Cal/OSHA Safety and Health Guidance: COVID-19 Infection Prevention for Agricultural Employers and Employees,
  • COVID-19 Industry Guidance: Food Packing and Processing, issued by the division, the State Department of Public Health, and the Department of Food and Agriculture, and
  • COVID-19 Industry Guidance: Agriculture and Livestock, issued by the division, the State Department of Public Health, and the Department of Food and Agriculture.

The bill also requires Cal/OSHA to initiate a statewide campaign to agricultural workers on best practices related to COVID-19 infection prevention and safety measures, including where to report workplace safety complaints.

As part of the campaign, Cal/OSHA, in partnership with community organizations and employee representatives, will make public service announcements on local Spanish radio stations and distribute workplace signs for employers to post in both English and Spanish.

Access to Statistical Data for Cal/OSHA Investigations

Finally, this legislation requires Cal/OSHA to compile and report information on Cal/OSHA investigations related to COVID-19 infection prevention in agricultural settings, including statistical information and investigation details such as the subject matter, findings, and results, on the agency’s website. The specific information required in the report includes the number of investigations in each county and, for each investigation a descriptive summary, discussion on how the investigation was conducted, and investigation result.

Impact on Agricultural Employers

Agricultural employers are encouraged to comply with all Cal/OSHA-issued COVID-19-related guidance, keep themselves informed of the statistical data related to COVID-19 on Cal/OSHA’s website, and ensure their and their employee’s understanding of the COVID-19 Guidance Documents.

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 28, 2020, the Governor signed, Assembly Bill 3369 (“AB 3369”), which changes obligations of harassment prevention training for minors working in the entertainment industry and their guardians. This bill compliments recently signed Assembly Bill 3175. Before the issuance of an entertainment work permit to a minor, existing law requires the parent or legal guardian of the minor and the age-eligible minors to receive and complete training in sexual harassment prevention, retaliation, and reporting resources.

This bill exempts an employer from these California Fair Employment and Housing Act sexual harassment training requirements for an employee who has, within the last 2 years, received the required training from an employer or who was issued a valid work permit by the Labor Commissioner that required the employee to receive the required training within the last 2 years.

The minor employee would then be required to receive the training every 2 years after that.

This requirement goes into effect immediately.

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 28, 2020, Governor Newsom signed Assembly Bill 2992, which imposes further limitations on employers from discharging, discriminating, or retaliating against an employee who is a victim of crime or abuse. Before the passage of this legislation, under Labor Code section 230, employers were prohibited from discharging an employee for taking time off to serve on a jury or appear in court pursuant to a subpoena or court order. Labor Code section 230.1 required employers of 25 or more employees to allow an employee who was a victim of domestic violence, sexual assault, and/or stalking to take time off to seek medical attention or related services.

AB 2992 expands the protections under Labor Code 230 and 230.1 to a victim of a crime, or public offenses as outlined in Section 13951 of the Government Code, which caused a physical or mental injury, or a threat of physical injury, regardless of whether any person is arrested for, prosecuted for, or convicted of, committing the crime.

The bill also revises the categories of time off work under these circumstances, to include taking time off to work to seek medical attention for injuries caused by crime or abuse, to obtain services from prescribed entities as a result of crime or abuse, to obtain psychological counseling or mental health services related to an experience of crime or abuse, or to participate in safety planning and take other actions to increase safety from future crimes or abuse.

Under the amended legislation, an employee shall give advance notice unless it is not feasible. If an unscheduled absence is taken, the employee within a reasonable time must provide one of the following as certification for the absence:

  1. A police report,
  2. A court order protecting or separating the employee from the perpetrator
  3. Documentation from a licensed medical professional or similar,
  4. Any other form of documentation that reasonably verifies the crime or abuse occurred.

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 25, 2020, Governor Gavin Newsom signed Assembly Bill 3175, which amends Labor Code section 1700.52 regarding sexual harassment prevention training requirements of age-eligible minors prior to the issuance of entertainment work permits.  Previously, Section 1700.52 required a minor and the parent or legal guardian to complete the sexual harassment prevention training in a language they understood.  Section 1700.52 provided that the training shall be provided by a third-party vendor, on-site, electronically, via Internet Web site, “or other means.”

Now, effective immediately, Section 1700.52 requires that a parent or legal guardian accompany the minor during the sexual harassment prevention training, which shall be provided by the Department of Fair Employment and Housing (“DFEH”) on its internet website.  The training must be conducted in the language understood by the minor and their parent or legal guardian, “whenever reasonably possible.”  Finally, the parent or legal guardian must certify to the Labor Commissioner that the training has been completed.

Assembly Bill 3175 was intended to address confusion surrounding the adoption of new sexual harassment prevention training requirements and their impact on existing regulation of the entertainment industry.

If you have questions about the effects of this legislation, please contact a Jackson Lewis attorney to discuss.

The Sacramento County Board of Supervisors has passed the Sacramento County Worker Protection, Health and Safety Act of 2020, which is effective October 1, 2020.

The ordinance, which applies only to businesses located in the unincorporated areas of Sacramento County, requires employers to implement specified social distancing, mitigation, and cleaning protocols and practices in the workplace. The required protocols include: maintaining and implementing specified cleaning and disinfection protocols; establishing protocols for action if a worksite is exposed to a person with a probable or confirmed case of COVID-19; providing employees with regular access to handwashing, hand sanitizer, and disinfectant supplies; providing face-coverings for employees; and establishing physical distancing protocols for the workplace, including the use of face coverings.

The ordinance also creates a supplemental paid sick leave requirement. The sick leave requirement applies only to those employers located within the unincorporated areas of the County that have 500 or more employees nationally. The ordinance requires that employers provide full-time employees working in the unincorporated areas of the County with 80 hours of paid sick leave; part-time employees receive paid time off equal to their average number of hours worked over a two-week period. Employees may use sick leave for the following reasons:

  • The employee is subject to quarantine or isolation under a federal, state, or local order, or is caring for a family member who is quarantined or isolated, due to COVID-19;
  • The employee is advised by a health care provider to self-quarantine due to COVID-19 or is caring for a family member who is so advised;
  • The employee chooses to take off work because the employee is over the age of 65 or is vulnerable due to a compromised immune system;
  • The employee is off work because the employer’s work location temporarily ceased operations due to a public health order or other public health official’s recommendation;
  • The employee is experiencing symptoms of COVID-19 and is seeking a medical diagnosis; or,
  • The employee is caring for a minor child because the child’s school or daycare is closed due to COVID-19.

The ordinance contains other requirements, which employers should ensure they are following.

The ordinance will remain in effect until December 31, 2020.

Jackson Lewis continues to track federal, state, and local ordinances pertaining to COVID-19. If you have questions about this or other ordinances pertaining to your employees, contact a Jackson Lewis attorney to discuss.

The City of San Diego enacted emergency ordinances requiring fair employment practices in response to job and economic insecurity due to the COVID-19 pandemic and stay-at-home directives.  The City of San Diego COVID-19 Building Service and Hotel Worker Recall Ordinance (“Recall Ordinance”) and the City of San Diego COVID-19 Worker Retention Ordinance (“Retention Ordinance”) went into effect immediately upon their passage on September 8, 2020. The Ordinances apply to three categories of businesses and employers that the City found have been especially impacted by the COVID-19 pandemic:

  1. Commercial Property Employer: defined by ordinance as an owner-operator, manager, or lessee, including contractor, subcontractor, or sublessee, of a non-residential property located within the geographical boundaries of the City of San Diego that employers 25 or more janitorial, maintenance, or security service employees. Only the janitorial, maintenance, and security service employees who perform work for a Commercial Property business or employer are covered by the Ordinance.
  2. Event Center Employer: defined by ordinance as an owner, operator, or manager or a privately-owned structure of more than 50,000 square feet or 5,000 seats that is used for the purpose of public performances, sporting events, business meetings, or similar events, and includes concert halls, stadiums, sports arenas, racetracks, coliseums, and convention centers. The term “event center” also includes any contracted, leased, or sublet premises connected to or operated in conjunction with the “event center’s” purpose, including food preparation facilities, ushering services, ticket taking services, concessions, retail stores, restaurants, bars, and structured parking facilities, but excludes governmental entities.
  3. Hotel Employer: defined by ordinance as an owner, operator, or manager of a residential building located within the geographical boundaries of the City of San Diego with at least 200 guest rooms that provide temporary lodging in the form of overnight accommodations to transient patrons, and may provide additional services, such as conferences and meeting rooms, restaurants, bars, or recreation facilities available to guests or the general public. A “hotel employer” also includes the owner, operator, manager, or lessee of any contracted, leased, or sublet premises connected to or operated in conjunction with the building’s purpose, or providing services to the building.

The Recall Ordinance requires a covered employer to offer positions that become available on or after September 8, 2020, to qualified employees who were laid off on or after March 4, 2020. A laid-off employee is deemed qualified and must be offered a position – in the order of priority below – if the employee:

  1. Held the same or similar position at the same location when the employee was laid off; or
  2. Is or can be qualified for the position with the same training that would be provided to a new worker hired into the position.

If more than one laid-off employee is entitled to preference for a position, the employer must offer the position to the laid-off employee with the greatest length of service for the employer.

Under the Retention Ordinance, when a covered business experiences a Change in Control as defined by the Ordinance, covered employees are given preference in hiring by the successor business employer for a period of 6 months and must be retained for no less than 90 days, provided the successor employer continues operating for 90 days unless there is cause for termination (which the Ordinance does not define). Once the 90 days have elapsed, the successor employer must perform a written performance evaluation for each eligible employee retained pursuant to the Retention Ordinance.

The Ordinances will remain in effect for six months. However, they could be repealed by January 1, 2021, depending on whether Gov. Gavin Newsom signs pending Assembly Bill 3216 into law, which would provide similar worker protections statewide.

Jackson Lewis’ Coronavirus Task Force will continue to monitor these ordinances and other emergency regulations pertaining to COVID-19. If you have questions or need assistance, please contact the authors or your favorite Jackson Lewis attorney.