A lot it seems. Starting in 2020 a number of new laws became effective. From additional leave for organ transplant to no more independent contractors (maybe), California is leading the way to more costly and complex HR problem identification/solution scenarios. The following is a list of new laws that HR now has to be aware of when administrating policies in California.
AB 1223—Organ Donor Leave: Assembly Bill (AB) 1223 amends California Labor Code Section 1510 to require that employers grant an employee an additional leave of absence, not exceeding 30 business days in a one-year period, for the purpose of organ donation. This 30-day leave is in addition to the only required 30 days leave for organ donation for a total of 60 days. The 30-day additional leave is unpaid and employers do not have to pay for healthcare for employees during that additional unpaid leave. Employers need to update policies and leave forms given the new law.
AB 673—Penalties for Unpaid Wages: AB 673 amends Labor Code Section 210 to allow employees to recover penalties for equal pay violations (Labor Code Section 1197.5) and failure to timely pay wages (Labor Code Sections 201.3, 204, 204b, 204.1, 204.2, 204.11, 205, and 205.5) or to recover civil penalties under the Private Attorneys General Act (PAGA)—but not both for the same violation. Employers should audit payroll practices and review equal pay potential discrimination areas (conduct equal pay audits under attorney privilege) to determine if there is risk of liability.
AB 25—California Consumer Privacy Act of 2018 (CCPA): AB 25 amends Civil Code provisions of the CCPA to exempt, until January 1, 2021, employers from all provisions of the CCPA, except for the provisions regarding private civil actions (Civil Code Section 1798.150) and the obligation to inform the consumer as to the categories of personal information to be collected from job applicants and employees (Civil Code Section 1798.100(b)). Employers should work with legal counsel to update policies and identify programs that will reduce risk if employee data is stolen during the one-year moratorium.
AB 749—No-Rehire Provisions: AB 749 adds Section 1002.5 to the Code of Civil Procedure and prohibits provisions in settlement agreements that prohibit, prevent, or otherwise restrict a settling party from working for the employer or any parent company, subsidiary, division, affiliate, or contractor of the employer against which the settling party filed a lawsuit or a claim with an administrative agency, in an alternative dispute resolution forum, or through the employer's internal complaint process. The new law does not apply to separation agreements that are negotiated prior to filing any lawsuit, claim, or internal complaint. Employers need to review with legal counsel any separation agreements to ensure that it complies with this new law.
AB 5—Independent Contractors: AB 5 amends Labor Code Section 3351 and adds Section 2750.3 to codify the ABC test for determining independent contractor status. Workers are presumed to be employees under the new law. In order to maintain independent contractor status the hiring entity must prove: the worker is "free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact"; the worker "performs work that is outside the usual course of the hiring entity's business"; and the person "is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed." Currently there is a temporary restraining order prohibiting the law from impacting the trucking industry. Again, employers should work with legal counsel to ensure that any independent contractor agreements comply with the law.
AB 51—Arbitration Agreements: AB 51 adds Section 432.6 to the Labor Code, thereby prohibiting employers from requiring that new and existing employees agree to arbitrate any claim under the California Fair Employment and Housing Act (FEHA) or the Labor Code as a condition of employment. This law does not affect any agreement prior to 1/1/20 and it expressly exempts written arbitration agreements that are enforceable under the Federal Arbitration Act (FAA) regulating interstate commerce, settlement agreements, and negotiated severance agreements. Employers who use arbitration agreements should review their agreements with legal counsel to ensure compliance under this law.
California also passed a law (SB 188) that defines race discrimination to include hairstyle discrimination. SB 778 extended harassment training for all employers with five or more employees to 1/1/2021 (when the law passed in 2018 originally requiring training the date of completion was 1/1/2020). In addition, SB 142 requires all employers to provide close proximity access to a lactation room and a sink and refrigerator. Employers with less than 50 employees may apply for an exemption. Employers should work with legal counsel to ensure compliance with this law, as it has costly immediate impact to employers.
Additional ASE Resources
Webinar – What’s Different in California: For those ASE members with operations in California, ASE in conjunction with our sister association in California (California Employers Association) will host a webinar February 12, 2020 from 3:00 p.m.-4:00 p.m. EST on California law changes. Click here to register.
Source: Ogletree Deakins 1/3/19