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State Labor Laws

Labor Law Attorneys

We continue to monitor state statutory changes along with Appellate Court, 9th Circuit and Supreme Court decisions impacting workers in California and Nevada.  Here’s a sampling of what has happened recently.


2021 CALIFORNIA LABOR LAWS


COVID-19 Related Laws

SAB 685: Notice of Exposure to COVID-19 to be Required within 1 Business Day

Effective January 1, 2021 through January 1, 2023, all public and private employers – other than healthcare facilities – will be required to provide written notice of a possible COVID-19 exposure to all employees, their Union, and employers of subcontracted employees on the premises during the exposure within one (1) business day. The notice must also provide COVID-19-related benefits and options along with disinfection and safety plans that will be implemented and completed per CDC guidelines. Records of the notification must be kept for at least three (3) years.

Other than at healthcare facilities, employers must also place a hazard notice at the entry of the premises where an exposure occurred and prohibit entry to the immediate area until it is made safe. Exceptions apply if the prohibition were to “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.”

This bill also codifies required noticing to the public health department within 48 hours and provides for a civil penalty for employers who violate any of the noticing requirements. To read the full bill, click here.

SB 1159: Expansion of Presumption of Workers’ Compensation Liability for COVID-19 Claims

On September 17, 2020, Governor Newsom codified his Executive Order N-62-20 into law which created a presumption that employees who tested positive for COVID-19 contracted the virus at work and would therefore be eligible for workers’ compensation. SB 1159 adds Sections 3212.86, 3212.87, and 3212.88 to the Labor Code. Effective July 6, 2020 until January 1, 2023, employees who work outside of their household may be entitled to workers compensation if a COVID-19 outbreak occurs at their jobsite.  This bill covers: 1) first responders and healthcare workers, or 2) any employee whose employer has 5 or more workers and experienced an outbreak and their worksite. For the later, an outbreak is considered 4 employees testing positive at one location within 14 days or 4% of employees who report to a specific worksite if there are over 100 employees at the worksite. The presumption is disputable under this law, but the employer must submit evidence to dispute a work-related injury within a limited time period. If the presumption applies, the employee is to receive full hospital, surgical, medical treatment, disability benefits, and death benefits, as applicable. To read the full bill, click here.

AB 1867 Expired: California’s COVID-19 Supplemental Paid Sick Leave

On September 9, 2020, Governor Newsom signed AB 1867 into law which required large employers to provide supplemental paid sick leave for COVID-19 related reasons in the same manner the Families First Coronavirus Response Act (“FFCRA”) applied to employers with under 500 employees. This bill was to remain in effect until December 21, 2020, or until FFCRA expired.

Unfortunately the FFCRA coverage expired on December 31, 2020 with congress failing to extend it. The DOL has provided guidance on its Frequently Asked Questions page regarding what is still in effect. The DOL advised that employers are no longer required to provide FFCRA leave “but may voluntarily decide to do so.” The government funding bill extended the refundable payroll tax credit until March 31, 2021, for employers that continue to voluntarily offer paid sick and family leave to their employees. We will update this article if Congress or California provides supplemental paid COVID-19 relief once again. To read the full bill, click here.

AB 2017: Sick Leave and Kin Care

AB 2017 amends Labor Code § 233 to give employees the “sole discretion” to use half of their annual accrual of sick leave to care for a family member. To read the full bill, click here.

AB 2537: General Acute Care Hospital Workers, PPE Requirements

AB 2537 requires General Acute Care Hospitals to provide personal protective equipment (“PPE”) to workers who provide direct patient care services or whose services directly support such care.  Beginning April 1, 2021, employers in hospital settings, including contractors, will be required to maintain a three-month stockpile of new, un-expired and unused PPE. These employers must also be prepared to report their highest seven-day consumption of PPE in the 2019 calendar year to Cal/OSHA or the Department of Industrial Relations. To read the full bill, click here.

Minimum Wage Increases

On January 1, 2021, the minimum wage for the State of California increased to $14 an hour for employers with 26 or more employees and to $13 an hour for employers with 25 or fewer employees. As you know, the State minimum wage is a floor.  Many local municipalities and counties have established higher minimums.  In the City and County of Los Angeles (unincorporated areas) the minimum wage is currently $15 an hour for employees with 26 or more employees and $14.25 an hour for employers with 25 or fewer employees. The minimum wage will increase to $15.00 an hour for employers with 25 or fewer employees on July 1, 2021. To read the wage order, click here.

AB 1512: Mandatory On-Duty Rest Breaks for Unionized Security Officers

Effective September 28, 2020, Section 226.7 of the Labor Code is amended to allow employers to require their unionized private security officer employees to remain on the premises during rest periods, remain on call, and carry and monitor a communication device. Employers may mandate this rule if the following conditions are met: (1) The employee must be covered by a valid Collective Bargaining Agreement (“CBA”); (2) The CBA must provide for the wages, hours of work and working conditions of the employee, including final and binding arbitration of disputes concerning its rest period provisions; and (3) The employer and employee must both be registered under California’s Private Security Services Act.

If the employee’s 10-minute rest period is interrupted, the employer must allow the security officer to “restart a rest period anew as soon as practicable.” If the security officer is not able to take an uninterrupted rest period of at least 10 minutes for every four hours worked “or major fraction thereof,” then the security officer must be paid an additional hour of normal hourly base pay. To read the full bill, click here.

AB 1947: Attorneys’ Fees Authorized for Prevailing Whistleblowers

AB 1947 amends Labor Code § 1102.5 in two ways: (1) It extends the period of time employees have to file a Division of Labor Standards Enforcement (“DLSE”) complaint from 6 months to one year; and (2) authorizes a court to award reasonable attorney’s fees to a plaintiff who prevails in a “whistleblower” action under Labor Code § 1102.5. To read the full bill, click here.

AB 2143: “No Rehire” Provisions in Settlement Agreements

Late last year, AB 749 was passed which prohibits “no rehire” provisions in settlement agreements.  Exceptions applied in cases where the employee engaged in assault, sexual harassment, or other legitimate, non-discriminatory reasons. AB 2143 was passed to clarify that the current “no rehire” exception requires the employer to make a documented and good-faith determination that the individual engaged in sexual harassment or sexual assault prior to the victim filing the Complaint.   The “no rehire” exception was also expanded to include criminal conduct, subject to the same documentation requirements as sexual harassment. To read the full bill, click here.

AB 2147: Criminal Convictions Expunged for California Conservation Camp Participants

After several threatening fire seasons, AB 2147 was signed into law on September 11, 2020 and took effect on January 1, 2021.  This law creates Penal Code Section 1203.4b, which allows individuals with criminal convictions who have completed a California Conservation Camp program and are released from custody to file a petition for relief in court to have their conviction expunged. Once an order for relief is obtained, the individual will not be required to disclose the expunged conviction on an application except if applying for a teaching credential, employment as a peace officer, holding public office, or to work with the State Lottery Commission. Those convicted of violent crimes such as murder, rape, kidnapping, arson, or a sex offense are not eligible for relief. An expungement order will not allow a former inmate who would otherwise be prohibited from holding public office or to possess a weapon to do so. To read the full bill, click here.

AB 2399: Amendments to Paid Family Leave Law 

Effective January 1, 2021, California’s Paid Family Leave Program has been expanded to provide paid leave to employees with a qualifying exigency related to covered active military duty of the employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States. This amends Unemployment Insurance Code §§ 3302 and 3307. To read the full bill, click here.

SB 1383: Expansion of CFRA Protections

SB 1383 expands the California Family Rights Act (“CFRA”) and requires employers with 5 or more employees to provide 12 weeks of unpaid protected leave to care for a newborn, adopted child, sick family member, or for active military duty. Family members are now expanded to include siblings, in-laws, grandparents and grandchildren. The highest earner exemption was also eliminated meaning this leave must be provided to the top 10% of wage earners also. To read the full bill, click here.

AB 2479: Exemption from Rest Period Requirements

AB 2479 continues existing law that was set to expire on January 1, 2021, which provides an exemption from the rest period requirements for safety-sensitive workers at a petroleum facility. The employee must be required to monitor the premises and respond to emergencies. If the employee is unable to take an uninterrupted rest break, then they are to be compensated an extra hour of pay. This law has been extended until January 1, 2026. To read the full bill, click here.

AB 2765: Prevailing wage laws applies to Charter Schools

Effective January 1, 2021, the definition of “Publics Works” has been expanded to include charter schools if the construction, alteration, demolition, installation or repair performed under a private contract on a charter school was paid by bonds issued on or after January 1, 2019.  As many of you know, California law requires Public Works workers to be paid no less than the prevailing wage rate, and this law clarifies that charter schools paid by bonds are considered Public Works. To read the full bill, click here.

AB 2992: Expansion of Protections to Victims of Crime or Abuse

AB 2992 amends Labor Code Sections 230 and 230.1, to expand protections for victims of crimes or abuse.  Specifically, the bill prohibits employers from discharging, discriminating or retaliating against an employee who is a victim of crime or abuse, or whose family member is a victim, for taking time off from work to obtain or attempt to obtain relief. A crime is described broadly in this bill to include anything that would constitute a misdemeanor or felony in California. Victim as been defined as (A) a victim of stalking, domestic violence, or sexual assault, (B) A victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury, or (C) A person whose immediate family member is deceased as the direct result of a crime. This bill also expands protections to any person against whom any crime has been committed for Section 230(b) only which prevents employers from discharging, discriminating or retaliating against an employee who has to appear in court regarding a crime. To read the full bill, click here.

SB 1384: Labor Commissioner’s Ability to Represent Claimants in Arbitration

SB 1384 amends Labor Code Section 98.4 to allow the Labor Commissioner to represent a claimant unable to afford their own counsel in an arbitration proceeding ordered by a Court. The law also requires that the Labor Commissioner be served with any petition to compel arbitration.  If the Labor Commissioner determines that the claim has merit after conducting an informal investigation, they are to represent the Claimant. While the Labor Commissioner’s role in the public sector is limited, Labor Code § 98.4 could still potentially apply to a public employee’s claim that lands in the Labor Commissioner’s jurisdiction. To read the full bill, click here.

AB 1731: Work Sharing

AB 1731 streamlines and simplifies California’s work share program to allow work sharing plans submitted until September 1, 2023 to be deemed approved for one year. These work sharing plans allow employees to avoid layoffs and maintain their health insurance benefits in exchange for reduced hours and access to unemployment insurance benefits to supplement lost income. While work sharing has been around since the 1970s, it has been underused and could help workers struggling with hours. To read the full bill, click here.


NEVADA LABOR LAWS

Workplace Safety

Beginning January 1, 2021, convention, trade show and exhibition workers will be required to complete additional workplace safety training. As many of you know, the intricate, theatrical displays that your members often build at the Las Vegas Convention Center — including cars on rotating tables, rigged lighting and airplane showcases — must often be completed in only a few days. Because of the inherent danger involved, supervisors will now be required to complete 30-hour health and safety courses and other workers will be required to complete 10-hour courses. The new law tightens loopholes and requires employees to complete approved, not alternate, courses. Employees can be terminated and employers can be fined if the courses aren’t completed within 15 days after they are hired. To read the full bill, click here.


STATE COURT DECISIONS


California Still Leads the Way in Rights for Truck Drivers

December 23, 2020

On November 19, 2020, a California Court of Appeals reversed an earlier trial court decision in People v. Cal Cartage Transportation Express, LLC finding that the Federal Aviation Administration Authorization Act of 1994 (“FAAAA”) does NOT preempt application of California’s ABC test to determine whether a federally licensed interstate motor carrier has correctly classified its truck drivers as independent contractors. The FAAAA preempts state laws “related to a price, route, or service of any motor carrier”. Because the ABC test does not prohibit the use of independent contractors as long as they are properly classified, the Court found the FAAAA did not preempt State law.

 ABC TEST

The ABC test was introduced through the Dynamex decision which was codified by AB 5. This test places the burden of proof on an employer to show that the individual has been engaged as an independent contractor by proving all three (3) tests.  The tests require that an individual is (A) free from the control of the hiring entity in connection with work performance; (B) performs work outside the hiring entity’s usual business; and (C) is engaged in an independent business of the same nature as the work performed.

This decision represents a win for California working people, especially truck drivers, whose employers have argued that the ABC test cannot be applied due to federal laws that prevent states from interfering with motor carrier operations.

Ever since the California Supreme Court issued its ground breaking decision in Dynamex, employers, especially in the trucking industry, have been hard at it to reverse rights granted to employees. In 2018, the California State Legislature found that nearly two-thirds of California’s port drayage drivers were wrongly classified as independent contractors by their employers, when in fact they should have been classified as employees under California’s ABC test.

Here are a few examples of the exemptions:

AB 2257 EXEMPTS MORE WORKERS

On September 4, 2020, Governor Gavin Newsom signed AB 2257 into law which strips application of the ABC test from many professions. There are now 109 categories of employees exempt from the ABC test including business-to-business relationships, referral agencies, “freelance” professional services, and certain performance artists, e.g., musicians.  The California trucking industry and the motion picture and television industries were not made exempt, despite intense lobbying efforts.

PROPOSITION 22

Adding further exemptions to the ABC test is Proposition 22, recently passed by California voters in November. Drivers and other workers for so-called gig economy companies in California such as Uber, Lyft, Postmates and Grubhub will now be considered independent contractors if employed on an on-demand basis or if they provide prearranged transportation in their own vehicle through an “app-based” online enabled platform. Some cosmetic concessions, only applicable to drivers who work over 15 hours a week are: a wage guarantee of 120% above minimum wage, a health care subsidy, compensation for vehicle expenses, occupational insurance, and some protection against sexual harassment and discrimination.

For those of you who represent temporary, casual or per diem workers, make sure they are being treated as employees and not as independent contractors.  Check with our firm if you perceive a problem in this area.

 





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