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New California Employment Laws and Updates in 2020

10.12.20

Sand timerIn response to new workplace scenarios arising from the global Coronavirus pandemic, California Governor Gavin Newsom recently signed into law several bills to protect employees and the public. Below are short summaries of these new laws.

Please reach out to BPM’s HR and People Services team for additional information about how these new laws may affect your business.

COVID-19 Related Updates

SB 1159 (effective immediately, expires January 1, 2023)
Establishes a rebuttable workers’ compensation presumption for workers that contract COVID-19 under certain conditions and requires employers to report COVID-19 cases to their workers’ compensation carriers.

AB 1867 (effective immediately, expires December 31, 2020)
Expands supplemental paid sick leave for COVID-19 related reasons. Affects employers not already covered by the Federal Families First Coronavirus Response Act (FFCRA).

AB 685 (effective January 1, 2021)
Establishes stringent COVID-19 recording and reporting requirements when employers receive notice of a potential COVID-19 exposure at the workplace. Among other things, employers will be required to provide a number of notices to different groups of employees within one business day after receiving notice of a potential COVID-19 exposure. Employers must also notify their local public health department if an “outbreak” occurs at the worksite.

AB 2043 (effective immediately, expires at the end of the state of emergency)
Requires Cal/OSHA to provide agricultural employers and employees information on the best practices to prevent COVID-19 infections, in both English and Spanish.

AB 2537 (effective immediately)
Requires public and private employers of workers in a hospital to supply certain employees with PPE, maintain a three-month stockpile of PPE and provide inventory information to Cal/OSHA upon request.

Leave of Absence Related Laws

SB 1383 Expanded California Family Rights Act (CFRA) (effective January 1, 2021)
This bill expands coverage to include all employers with five or more employees, which is much fewer than the previous 50 or more employer requirement. In addition, SB 1383 expands the definition of “family members” beyond what is covered under the Federal Family and Medical Leave Act (FMLA), which will impact larger employers who will have to administer CFRA and FMLA separately in some cases. For example, an employee can take 12 weeks of leave to care for a sibling under the CFRA and then another separate 12 weeks to cover an illness under the FMLA for a total of 24 weeks of protected leave. Employers large and small will need to become familiar with the law’s details and be prepared to revise or implement compliant policies and practices by 2021.

AB 2992 (effective January 1, 2021)
Expands the prohibition on discrimination and retaliation against employees who are victims of crime or abuse, when they take time off for judicial proceedings, to seek medical attention or related relief for domestic judicial proceedings, or to seek medical attention or related relief for domestic violence, sexual assault, stalking or other crimes that causes physical or mental injury.

AB 2017 (effective January 1, 2021)
Currently, an employee can use up to half of their accrued sick leave to care for a family member, also known as “kin care.” AB 2017 revises the law to clarify the employee has the right to designate sick leave as kin care, or not, to avoid a designation error and unintentional draw down of kin care time when sick days were actually taken for personal sick leave.

Wage and Hour

AB 1947 (effective January 1, 2021)
This bill extends the time an individual can file a complaint of discrimination or retaliation with the California Division of Labor Standards Enforcement (DLSE), also known as the California Labor Commissioner. Under current law, workers alleging they were discriminated or retaliated against in violation of any Labor Commissioner-enforced laws have six months to file a complaint with the Labor Commissioner, but beginning January 1, 2021, AB 1947 extends that time to one year.

Pay Data

SB 973 (effective immediately)
This bill requires a private employer – one that has 100 or more employees and is required to file an annual Employer Information Report (EEO-1) under federal law – to submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains information about employees’ race, ethnicity and gender in various job categories on or before March 31, 2021.

California Consumer Privacy Act (CCPA)

AB 1281 (effective January 1, 2021)
The CCPA provides California consumers rights over how and whether the personal data they provide to businesses is collected, retained and sold. Because its definitions are broad, it includes the employee data collected by employers for employment purposes. Last year, AB 25 largely exempted employee data from the CCPA for one year, and now AB 1281 extends the exemption for one more year (until the end of 2021). Employers must still comply with the CCPA’s requirement to provide notice before, or at the time of, collecting personal information from an applicant or employee that describes every category of information that will be collected and the purposes for which it will be used. CCPA regulations describing how employers can give a compliant notice are now in effect.

Hiring

Fair Chance Act (effective October 1, 2020)
Summarizing, the FEHA makes it unlawful for covered California employers with at least five employees to:

  • Include on any application for employment any question that seeks the disclosure of an applicant’s conviction history;
  • Inquire into or consider the conviction history of an applicant before the applicant receives a conditional offer of employment; and
  • Consider, distribute or disseminate information about any of the following while conducting a criminal history background check in connection with any application for employment: (1) an arrest that did not result in a conviction, subject to the exceptions in Labor Code 432.7(a)(1) and (f); (2) referral to or participation in a pretrial or post-trial diversion program; (3) convictions that have been sealed, dismissed, expunged or statutorily eradicated pursuant to law. Once an offer has been made and the criminal history obtained, the FEHA further provides that the employer cannot deny an applicant a position soley or in part because of a conviction history until the employer performs an individualized assessment. This assessment must justify denying the applicant the position by linking relevant conviction history with specific job duties of the position sought. In particular, the assessment must consider:
    • The nature and gravity of the offense and conduct;
    • The time that has passed since the offense or conduct and completion of the sentence; and;
    • The nature of the job held or sought

Once the employer makes a preliminary decision that the applicant’s conviction history is disqualifying, the employer must notify the applicant of this preliminary decision in writing. However, the employer is not required to justify or explain to the applicant its reasoning for making the preliminary decision. But, the employer must:

  • Provide the written notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
  • Include a copy of the conviction history report, if any; and
  • Provide an explanation that the applicant has the right to respond to the notice within at least five business days, and that the response may include submission of evidence challenging the accuracy of the conviction record, or evidence of rehabilitation or mitigating circumstances or both.

The FEHA created a new Fair Chance Act FAQ document and is bringing renewed and substantial attention to how employers use criminal records in hiring and employment decisions.

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