Lots of employment law developments from the California Legislature in 2021! New laws cover everything from significant expansions of Cal/OSHA’s enforcement powers, new definitions impacted leave under the CFRA, new PAGA exemptions, myriad changes to the Dynamex statutory scheme, and much more.
AB 1506 and AB 1561 make myriad changes to the statutory scheme enacted following the California Supreme Court’s decision in Dynamex Operations West v. Superior Court (2018) 4 Cal.5th 903. Some key developments include: (1) extending the inoperative date of the exemption from the ABC test for licensed manicurists to January 1, 2025, (2) expanding the exemption from the ABC test to include a person who provides claims adjusting or third-party administration, (3) revising the exemption applicable to the relationship between a data aggregator and an individual providing feedback to the data aggregator, and (4) extending the inoperative date of the exemption from the ABC test for newspaper distributors.
AB 1003 adds new Penal Code section 487m that makes the intentional theft of wages punishable as grand theft. And SB 62 seeks to put an end to the long history of wage theft in the garment manufacturing industry by outlawing the practice of employers’ paying employees by the piece or unit and by establishing “upstream liability” by defining a “brand guarantor” as a person contracting for the performance of garment manufacturing, regardless of whether the person with whom they contract performs the actual manufacturing operations or hires a contractor or subcontractor to do that work.
AB 1033 adds “parent-in-law” as a category of persons for whom an employee may take leave to care for under the California Family Rights Act (CFRA) (Gov. Code, § 12945.2). In addition, AB 1033 makes changes to the small employer family leave mediation program that was instituted last year to help resolve disputes involving family leave for employers with between 5 and 19 employees.
Settlement agreements cannot prevent an employee from disclosing factual information regarding, among other things, acts of workplace harassment or discrimination based on sex. (See Civ. Code, § 1001, subd. (a)(3).) SB 331 expands the scope of that prohibition to include any acts of workplace harassment or discrimination, not just those based on sex.
SB 606 represents a large expansion of Cal/OSHA’s enforcement powers. Among other developments, when the California Division of Occupational Safety and Health (Cal/OSHA) finds that an employer has violated a safety and health standard, rule, order, or regulation, and that employer has multiple worksites, a rebuttable presumption will be raised that the violation is enterprise-wide if the employer has a written policy that violates these provisions or Cal/OSHA has evidence of a pattern and practice of the same violation involving more than one worksite.
SB 646 excepts from PAGA certain janitorial employees represented by a labor organization (which itself must meet specified criteria, including providing for a binding grievance and arbitration procedure). It does so by adding to the Labor Code section 2699.8.
Other developments include AB 12 (requiring state agencies, as soon as possible, but no later than Jan. 1, 2023, to stop sending outgoing U.S. mail to any individuals containing their social security number, unless the number is truncated to its last four digits (except in specified circumstances), AB 572 (the Labor Commissioner, as an alternative to a judgment lien, can create a lien on real property to secure amounts due under any citation, findings, or decision that has become final and may be entered as a judgment), and AB 286 (food delivery transparency, including tips).
AB 701 was drafted to curtail alleged practices of Amazon, but will affect many warehouses across California. The new law applies to employers with 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more “warehouse distribution centers” in the state of California. Among other requirements, employers must provide each employee with a written description of each quota that applies to the employee and the “quantified number of tasks to be performed or materials to be produced or handled, within the defined timer period, and any potential adverse employment action that could result from failure to meet the quota.”