by Teresa R. Tracy
Once again, California is on the leading edge of new laws designed to protect workers. Unless otherwise indicated, the following laws became effective January 1, 2020.
AB 5, which adds new Labor Code section 2750.3, amends Labor Code section 3351 amends Unemployment Insurance Code sections 606.5 and 621, codifies an earlier California Supreme Court decision, and greatly limits the ability to classify a worker as an independent contractor. It applies not only to the state’s Wage Orders, but also to claims under the Labor Code that are not covered by the Wage Orders (e.g., expense reimbursement, paid sick leave, and waiting time penalties). In addition, it applies to the California Unemployment Insurance Code (e.g., state disability insurance, unemployment insurance) and, effective July 1, 2020, to workers’ compensation as well. There are a few occupations and professions identified in the law that will continue to be subject to the older Borello test, but the vast majority of workers will now be subject to the more stringent test set out in the new law.
Wage and Hour-Related Laws
AB 749, which adds Code of Civil Procedure section 1002.5, et seq., prohibits “no rehire” provisions in employment settlement agreements entered into on and after January 1, 2020, except where the employer has made a good faith determination that the employee engaged in sexual harassment or assault. The “no rehire” prohibition extends to not only the employer but also its parents, subsidiaries, affiliates, divisions, and contractors. Any such provisions will be void as a matter of law and a violation of public policy. The prohibition applies to all “aggrieved persons,” which is defined as employees who have filed a claim against the employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint procedure. Note: “No rehire” provisions can still be included in severance or settlement agreements that are entered into in response to demand letters or unfiled claims. Furthermore, the new law only applies to an agreement with the employee; it does not prohibit an employer from deciding, based on the conduct of a particular employee, that it will not rehire that employee at any time in the future.
Workplace and School Gun Violence Restraining Orders
AB 61, which makes changes to Penal Code sections 18150, 18170, and 18190, is effective September 1, 2020. It authorizes an employer, co-worker who has substantial and regular interactions with the person and approval of their employer, or an employee or teacher of a secondary or post-secondary school, with the approval of the school administrator, to file a petition for an ex parte, one year, or renewed gun violence restraining order. The restraining order can prohibit the subject of the petition from having in their custody or control, owning, purchasing, possessing, or receiving, or attempting to purchase or receive, a firearm or ammunition when it is shown that there is a substantial likelihood that the subject of the petition poses a significant danger of self-harm or harm to another in the near future by having in their custody or control a firearm, and that the order is necessary to prevent personal injury to the subject of the petition or another person.
Compliance with CCPA Delayed
The California Consumer Privacy Act (CCPA) was passed in 2018 and is meant to give “consumers” certain knowledge about what data companies are collecting about them, and then request that the data be deleted, in addition to other rights. “Consumers” was defined so broadly that it encompasses job applicants and employees. AB 25, which amends Civil Code sections 1798.130 and 1798.145, excludes employees and prospective employees from the definition of “consumer” until January 1, 2021. It also exempts any individuals “acting as a job applicant to, an employee of, owner of, director of, officer of, medical staff member of, or contractor of that business.” Therefore, employers have an additional year to comply with the requirements of the CCPA with respect to applicants’ and employees’ information.
Occupational Injuries and Illnesses
There are also several industry-specific laws:
Employers should also be mindful that an increasing number of local ordinances provide for higher minimum wages and additional benefits than state law.
This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.