New Laws and Requirements for California Employers Effective January 2021
December 09, 2020
New California employment and labor-related legislation signed into law in 2020 by Governor Gavin Newsom will become effective January 1, 2021. Employers should review new laws and requirements and prepare to update practices and policies related to minimum wages and agricultural overtime, expanded family leave requirements, pay data reporting, and wage claim arbitration.
In addition, significant new California requirements for employers related to COVID-19 have been issued this year in the form of Executive Orders by Governor Newsom, legislation signed in September (some bills took effect on signing, and some will take effect 1/1/2021), and emergency temporary regulations and standards developed and approved by Cal/OSHA that took effect November 30, 2020. COVID-19 employer requirements have been the subject of recent articles posted on winebusiness.com, updates and legal advisories from law firms, and documents and advisories from state agencies. Links for more detailed COVID-19 related requirements can be found near the end of this article.
The California Association of Winegrape Growers (CAWG) presented a webinar December 3 to provide information on new laws and requirements for employers in 2021. Presenting the update were attorneys Collin Cook and Brandon Kahoush, counsels with the San Francisco office of Fisher Phillips, a nationwide law firm specializing in representing management in labor and employment issues. CAWG director of government relations Michael Miiller, who works to mitigate the impacts of labor-related legislation on employers, also participated in the webinar. A second webinar presented December 4 by CAWG in conjunction with The Wine Institute with Fisher Phillips attorneys specifically addressed new COVID-19-related employer requirements.
Minimum Wage Increase, Ag Overtime Requirements
As a reminder, effective January 1, 2021, employers will be required to comply with phase-in requirements of previously enacted legislation for minimum wage increases to $13/hour for employers with 25 or fewer employees, and $14/hour for employers with 26 or more employees. In addition, 2021 phase-in requirements for agricultural employee overtime for employers with 26 or more employees will now require overtime payment (1.5 times the regular rate) when an employee works more than 8.5 hours per day, or works more than 45 hours per week.
Expanded Family Leave
SB 1383 (Jackson) expands the California Family Rights Act (CFRA) to smaller employers with five or more employees (it previously applied to employers with 50 or more employees) and expands the family members an employee can request leave to care for. This law makes it unlawful for an employer to refuse to grant a request by an employee to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee, or to care for themselves or a child (including an adult dependent child), parent, grandparent, grandchild, sibling, spouse or domestic partner. Requires an employer who employs both parents of a child to grant leave to each employee. Employee is defined as an individual with at least 1,250 hours of service with the employer during the previous 12-month period.
Annual Pay Data Reporting
SB 973 (Jackson) requires that a private employer with 100 or more employees and is required to file an annual Employer Information Report under federal law to also submit a pay data report to the California Department of Fair Employment and Housing (DFEH) that contains specified wage information, on or before March 31, 2021, and annually on or before March 31 each year thereafter. These reporting requirements are intended to address detection of pay discrimination. The Obama Administration proposed a revision to the Employer Information Report (EEO-1) to include the reporting of pay data by gender, race and ethnicity beginning in 2018. However, the Trump Administration halted the implementation of this new rule. Reports must include information about gender, race and ethnicity; job categories; the number of employees within certain pay ranges; the number of hours worked; reports for each employer establishment and a consolidated report; and the use of the EEO-1 as a basis for the state report.
This new law also authorizes the DFEH to receive, investigate, mediate and prosecute complaints alleging practices unlawful under discriminatory wage rate provisions and enforce those provisions. Previously, only the Division of Labor Standards Enforcement (DLSE) could enforce the California Equal Pay Act, but now both agencies will have authority and coordinate enforcement activities.
SB 1384 (Monning) provides added rights to employees in arbitration proceedings involving wage claims with the DLSE. This new law extends the authority of the Labor Commissioner to also represent a claimant who is financially unable to represent themselves in a hearing where a court order has compelled arbitration to determine the claim and the Commissioner has determined the claim has merit. A petition to compel arbitration of a claim that is pending shall be served on the Labor Commissioner. Upon request of a claimant/employee, the Labor Commissioner can represent the employee in proceedings to determine the enforceability of the arbitration agreement (whether in court or in the arbitration).
Specific language for enacted legislation above can be found at the California Legislative Information website at https://leginfo.legislature.ca.gov
Employers are advised to seek additional information for complying with these new laws from the appropriate state labor and employment agencies and from knowledgeable legal counsel.
COVID-19 Laws, Regulations and Information Sources
AB 685 (Reyes), effective January 1, 2021, requires employer COVID-19 notifications to employees, and employees of subcontractors, regarding workplace “exposure” to COVID, and requires notifications to local public health agencies regarding workplace “outbreaks.” Some requirements overlap with the current COVID Emergency Workplace Standard, but employers are advised to also consult this new law’s requirements that are in effect until January 1, 2023.
The Cal/OSHA COVID-19 Guidance and Resources web page includes links to FAQs for the Emergency Workplace Standard, a Model COVID-19 Prevention Program, posters, and educational and training materials: https://www.dir.ca.gov/dosh/coronavirus
Text of the Cal/OSHA Emergency Workplace Standard:
The Fisher Phillips law firm (www.fisherphilliips.com) is offering CAWG and Wine Institute members discounted prices on templates and documents for required notices to employees, a written COVID-19 Workplace Prevention Plan, and training programs. In addition, the firm posted the following legal alert, “The Top 9 Things Employers Should Know About Cal/OSHA’s New Emergency COVID-19 Standard,” at the following link:
Fisher Phillips attorney Collin Cook said that some local governments and jurisdictions have also created COVID-related ordinances involving employment, and he advises employers to look as all levels of government for guidance on handling COVID prevention and issues in the workplace.