Businesses are constantly challenged by the ever-evolving landscape of labor and employment law, with new legislation and judicial developments occurring almost daily fueling a seemingly never-ending stream of litigation. For companies operating in multiple states, complying with this patchwork of federal, state, and local laws and developments can be daunting. Knowing these issues are a top concern for management and in-house counsel, Morrison Foerster keeps pace with this rapidly evolving landscape. MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

Social

Search

Editors

turnbull_andrew_blog_150x150.png

turnbull_andrew_common_640x280.jpg

turnbull_andrew_heroretina_2700x1160.jpg

turnbull_andrew_mobileretina_750x1040.jpg

turnbull_andrew_social_600x600.jpg

Co-Chair, Global Employment and Labor Practice

Partner

Andrew Turnbull represents companies on a broad range of labor and employment litigation and counseling matters. He has successfully defended clients in complex employment litigation before federal and state courts and administrative agencies. A primary focus of his practice involves helping companies navigate the unique employment issues that arise when doing business with the federal government, including advising on all aspects of OFCCP compliance, creating and implementing affirmative action plans, defending OFCCP audits and onsite investigations, conducting mock pay equity audits, drafting and developing business ethics policies and programs, and complying with the Service Contract Act, E-Verify, and the Drug Free Workplace Act.

Andrew Turnbull

favicon.ico

favicon-16x16.png

favicon-32x32.png

apple-touch-icon.png

MoFo Favicons

MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues, covering key judicial, litigation, and legislative developments, their implications for employers, and strategies to ensure compliance and avoid lawsuits. To learn more about our capabilities, please visit the <a href="https://www.mofo.com/capabilities/employment-labor" target="_blank">Employment + Labor</a> practice page and read about our <a href="https://www.mofo.com/people?practices=Employment%20%2B%20Labor" target="_blank">Team</a>.

Welcome to the MoFo ELC Blog

elcblog-header-image.jpg

Welcome to the MoFo ELC Blog

elcblog-header-image

MoFo ELC equips our clients with the most up-to-date and relevant information on employment and labor law issues covering key judicial, litigation and legislati

Announcements

Blog - Terms of Use

Blog - Cookies

Blog - Privacy Policy

Blog - Blog Disclaimer

Blog - Attorney Advertising

morrison-foerster-blog-logo.png

Provides insights and reports on the most current class actions lawsuits and product liability issues that affect consumer-facing companies.

Class Dismissed Blog

Class Dismissed

In-depth analysis of developments and trends impacting government contracting.

Government Contract Insights Blog

Government Contract Insights

Looks behind the headlines to explore the trends, identify the opportunities, analyze the issues, and provide guidance for science and technology-based companies.

MoFo Tech Blog

News and thought leadership from lawyers whoa re adding value to the legal profession and the communities we call home.

 MoFo+ Blog

MoFo+

Read our Employment Law Commentary blog for the latest insights in employment and labor law, covering issues from ADA compliance to trade secrets protection.

Employment Law Commentary

MoFo ELC | Latest Employment Law Developments and Commentary

  Linkedin

MoFo LinkedIN

ELC Blog - RSS

Stay Connected

By submitting your data to subscribe to this blog, you approved Morrison & Foerster LLP to email you future information about MoFo news and events. You may opt-out at any time by sending a request to <a href="mailto:mofonews@mofo.com" target="_self">mofonews@mofo.com</a>. To learn more about how Morrison & Foerster LLP uses and protects your personal data, please view our <a href="https://www.mofo.com/about/privacy-policy.html" target="_self">Privacy Policy</a> at <a href="https://www.mofo.com/">www.mofo.com</a>.

Never miss a post from MoFo ELC. Enter your email below to stay up-to-date.

Subscribe

Practical Answers to Employment Law Issues

Morrison Foerster - Footer

With the New Year rapidly approaching, employers should prepare for the flurry of new California employment legislation. The recent legislation presents new com

Blogs -  Home Button

Home

Blog - Topics

Americans with Disabilities Act (ADA)

Topics

Blog - Editors

Blog - About

About

Blog - Subscribe

Another Round of New California Employment Laws

Another Round of New California Employment Laws | Employment Law Commentary

Another Round of New California Employment Laws | MoFo ELC | Latest Employment Law Developments and Commentary

Lloyd Aubry

Andrew R. Turnbull

With the New Year rapidly approaching, employers should prepare for the flurry of new California employment legislation. The recent legislation presents new compliance challenges and requirements for California employers, including obligations related to the ongoing pandemic, reinforcing or expanding leave protections, wage and hour compliance risks, and much more. We discuss some of the most notable developments below. Employers should review their policies and procedures in light of these developments.<h4>COVID-19</h4>AB 685 imposes new COVID-19-related notification and reporting obligations and authorizes Cal/OSHA to shut down operations that place workers at risk of exposure.Effective January 1, 2021, AB 685 requires employers that receive a “notice of potential exposure” (which may come from a variety of sources, as discussed below) to COVID-19 to take the following actions within one business day of the notice:<ol><li> Provide written notice to all employees, and the employers of subcontracted employees, who were at the same worksite as a “qualifying individual” within the “infectious period” that they may have been potentially exposed to COVID-19. If the employees are unionized, written notice must also be provided to the exclusive representative of the employees. The “infectious period” is currently at or around 10 days, depending on whether the individual actually develops symptoms. The State Department of Public Health will be responsible for determining the length of the “infectious period.”<a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234379514-v7-ELC_re__California_Legislation.docx#_ftn1">[1]</a></li><li>Provide all employees who may have been exposed (and their exclusive representative, if any,) with information regarding COVID-19-related benefits to which the employees may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, COVID-19-related leave, company sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions, as well as anti-retaliation and anti-discrimination protections.</li><li> Notify all employees, and the employers of subcontracted employees (and their exclusive representative, if any) of the disinfection and safety plan that the employer plans to implement and complete, which must be consistent with the guidelines of the federal Centers for Disease Control.</li></ol>A “qualifying individual” includes someone who has a positive test for COVID-19, is diagnosed with COVID-19 by a licensed health care provider, is ordered to isolate for COVID-19 by a public health official, or dies due to COVID-19, as determined by a public health department. The “notice of potential exposure” may come from a variety of sources, including a public health official or licensed medical practitioner, a qualifying individual’s representative or emergency contact, the employer’s own testing protocol, or a subcontracted employer.AB 685 also requires employers with a COVID-19 “outbreak” within its premises to notify, within 48 hours, the local public health agency of the names, number, occupation, and worksite of the employees who meet the definition of a “qualifying individual” under AB 685. The term “outbreak” is to be defined by the State Department of Public Health, which currently defines “outbreak” as “at least three COVID-19 cases among workers at the same worksite within a 14-day period.”AB 685 also provides that employers should not disclose employees’ “medical information unless otherwise required by law” or “retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.”From January 1, 2021, until January 1, 2023, AB 685 authorizes Cal/OSHA to shut down an entire worksite or a specific worksite area that exposes employees to an imminent hazard related to COVID-19. An imminent hazard is defined as any condition or practice that poses a hazard to employees, which could reasonably be expected to cause death or physical harm immediately or before the imminence of such hazard can be eliminated through Cal/OSHA’s enforcement process. Any shutdown order must not “materially interrupt the performance of critical governmental functions essential to ensuring public health and safety functions or the delivery of electrical power or water.” From January 1, 2021, until January 1, 2023, Cal/OSHA can also issue citations to employers for serious violations related to COVID-19 without providing 15-day advance notice. AB 1867 provides supplemental COVID-19 paid sick leave to employees.Effective September 19, 2020, AB 1867 provides supplemental paid sick leave until the later of December 31, 2020, or the expiration of any federal extension of the Emergency Paid Sick Leave Act. AB 1867 applies to private employers with more than 500 or more employees and certain employers who employ health care providers or emergency responders or operate a food facility. It requires these employers to provide supplemental COVID-19 paid sick leave to employees who are unable to work due to: (1) COVID-19-related federal, state, or local quarantine or isolation orders; (2) self-quarantine or isolation order by health care provider due to COVID-19-related concerns; or (3) their employer barring them from the worksite due to health concerns related to COVID-19.AB 1867 provides 80 hours of supplemental COVID-19 paid sick leave to an employee whom the employer considers “full time” or has worked or was scheduled to work, on average, at least 40 hours per week in the two weeks preceding the date the employee took COVID-19 supplemental paid sick leave. If the employee is not “full-time,” the employee’s supplemental paid sick leave is based on his or her normal schedule over the prior two weeks. The employer is not required to pay more than $511 per day or more than $5,110 in the aggregate to an employee for COVID-19 supplemental paid sick leave.SB 1159 makes injury from COVID-19 presumptively compensable under workers’ compensation law.For an employee who tested positive or was diagnosed with COVID-19 within 14 days after a day that the employee worked at a worksite at the employer’s direction, SB 1159 provides a rebuttal presumption that the employee’s COVID-19-related illness is an occupational injury that is eligible for workers’ compensation benefits. SB 1159 is effective through January 1, 2023.<h4>Protected Leave</h4>SB 1383 significantly expands California Family Rights Act rights for employees of small businesses.The California Family Rights Act (“CFRA”) authorizes eligible employees to take up to 12 weeks of unpaid, job-protected family and medical leave in a 12-month period. Currently, the CFRA applies to private employers with 50 or more employees within 75 miles of the employer’s worksite. Effective January 1, 2021, SB 1383 expands the CFRA to employers with five or more employees and eliminates the 75 mile requirement.SB 1383 also expands the types of leave that can be used under CFRA. CFRA currently allows employees to take leave to care for a “family member” who has a serious health condition. “Family member” is currently defined as a minor child, a spouse, or a parent. SB 1383 expands the definition to include adult children, siblings, grandparents, grandchildren, and domestic partners. SB 1383 additionally eliminates the CFRA restriction that allows an employer employing both parents of a child to limit CFRA leave to a total of 12 weeks for both parents due to bonding with a newborn child, adopting a child, or foster care placement. Moreover, SB 1383 eliminates the “key employee” exemption, allowing an employer to deny reinstatement to an employee who takes CFRA leave if the employee is among the highest paid 10% of the employer’s employees and the denial is necessary to prevent “substantial and grievous economic injury” to the employer.<ul><li>AB 2017 amends section 233 of the California Labor Code by providing employees with the “sole discretion” to designate the type of paid sick leave used. Currently, employers must permit an employee to use half of the employee’s sick leave entitlement to attend to the illness of a family member. Effective January 1, 2021, AB 2017 will prevent employers from incorrectly designating an employee’s sick leave as kin care and unintentionally depleting the number of hours an employee has to take leave when caring for a family member.</li></ul><ul><li>AB 2992 expands protections under sections 230 and 230.1 of the California Labor Code. Currently, those laws require employers to provide protected leave for employees who are victims of domestic violence, sexual assault, or stalking. Starting January 1, 2021, AB 2992 will expand the protected leave to employees who are victims “of a crime that caused physical injury or that caused mental injury and a threat of physical injury.”</li></ul><h4>Independent Contractors</h4>AB 2257 and AB 323 exempt more California workers from the ABC test under AB 5. As we <a href="https://elc.mofo.com/topics/California-Issues-A-New-Round-Of-Employment-Laws.html">reported</a>, AB 5 codified the expansive ABC test under the California Supreme Court’s Dynamex decision for purposes of determining whether a worker was misclassified as an independent contractor. AB 5 exempted numerous occupations from the ABC test.After challenges from various industries and professions, the California legislature passed AB 2257 and AB 323 to expand the number of exemptions under AB 5. For example, AB 2257 creates a new “single-engagement” business-to-business exemption from the ABC test for a “stand-alone non-recurring event in a single location, or a series of events in the same location no more than once a week” (e.g., an indie music band performing at a non-recurring event). Additional requirements must still be met for this exemption to apply, including that neither party is subject to the control and direction of the other, each party has the ability to negotiate its own rates, each party maintains its own business location, and each party provides its own tools, vehicles, and equipment to perform services under the parties’ contract.AB 2257 also creates new entertainment industry exemptions from the ABC test, including: (1) recording artists; (2) songwriters, lyricists, composers, and proofers; (3) managers of recording artists; (4) record producers and directors; (5) musical engineers and mixers engaged in the creation of sound recordings; (6) musicians engaged in the creation of sound records; (7) vocalists; (8) photographers working on recording photo shoots, album covers, and other items for press and publicity purposes; (9) independent radio promoters; and (10) any other individual “engaged to render any creative, production, marketing, or independent music publicist services related primarily to the creation, marketing, promotion, or distribution of sound recordings or musical compositions.” Musicians and vocalists who are not royalty-based participants in the work created during any specific engagement will be considered employees. Additional exemptions include, but are not limited to, licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators. Referral agencies for a non-exhaustive list of occupations such as caddies, photographers, and interpreters were also exempted from AB 5.AB 323, dubbed the “Save Local Journalism Act,” provides for a one-year extension until January 1, 2022, of the exemption of newspaper distributors and publishers from the ABC test.In addition, California voters recently approved an additional exemption to AB 5, Proposition 22, a California ballot that provides for classification of drivers who offer their services through app-based platforms as independent contractors.  Adoption of Proposition 22 shows that it is indeed possible, albeit expensive, for industry and professional groups to make their case for AB 5 exemption directly to voters.<h4>EEO Reporting</h4>SB 973 requires California private employers with 100 or more employees to submit pay data for its workforce to the Department of Fair Employment and Housing (“DFEH”) on an annual basis. The first submission deadline is March 31, 2021. The pay data must include information about the number of employees by race, ethnicity, and sex in the following categories: (1) executive or senior level officials and managers; (2) first or mid-level officials and managers; (3) professionals; (4) technicians; (5) sales workers; (6) administrative support workers; (7) craft workers; (8) operatives; (9) laborers and helpers; and (10) service workers. Employers must also provide previous year W-2 earnings and hours worked for all employees in a searchable and sortable format.<h4>DLSE Complaints and Whistleblowers</h4>Starting January 1, 2021, AB 1947 expands the statute of limitations from six months to one year to bring a complaint with the Division of Labor Standards Enforcement (“DFEH”) for any employee who believes that he or she was discharged or otherwise discriminated against in violation of any law enforced by the Labor Commissioner. AB 1947 also amends Labor Code section 1102.5, which provides whistleblower protections, to allow a court to award reasonable attorney’s fees to a prevailing plaintiff.<h4>No-Rehire Clauses in Settlement Agreements</h4>We <a href="https://elc.mofo.com/topics/California-Issues-A-New-Round-Of-Employment-Laws.html">reported</a> last year that AB 749 prohibited no-rehire provisions in settlement agreements with employees who filed a claim against an employer in court, before an administrative agency, in an alternative dispute resolution forum, or through the employer’s internal complaint process. One notable exception to AB 749 was where the employer had made a good faith determination that the employee engaged in sexual harassment or assault or “if there is a legitimate non‑discriminatory or non-retaliatory reason for terminating the employment relationship or refusing to rehire the person.” AB 2143, effective January 1, 2021, expands the no-rehire clause prohibition exception to include good-faith determination that the employee engaged in criminal conduct. AB 2143 was also amended to require employees to make “good faith” complaints to qualify for the no-rehire clause protection.<h4>Corporate Board Composition</h4>AB 979 requires publicly held companies whose principal executive office is located in California to have a minimum of one director from an underrepresented community by the end of 2021. For companies with more than four but fewer than nine directors, AB 979 requires a minimum of two directors from underrepresented communities by the close of 2022. For companies with nine or more directors, AB 979 requires a minimum of three directors from underrepresented communities by the end of 2022. “Director from an underrepresented community” is defined as an “individual who self-identifies as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.” A company is subject to a fine of $100,000 for a first violation of AB 979 and $300,000 for a second or subsequent violation. Similar to SB 826, which contains similar provisions for companies to have a minimum number of female directors, AB 979 may be subject to various legal challenges.<h4>Wage and Hour Enforcement</h4>AB 3075 requires a company, when filing the company’s statement of information with the California Secretary of State, to include information about whether any officer, director, member, or manager of the company has an outstanding final judgment issued by the DFEH or a court of law, for which no appeal is pending, for the violation of any wage order or provision of the Labor Code.AB 3075 also lowers the bar for an employee to establish successor liability for “any wages, damages, and penalties owed to any of the judgment debtor’s former workforce.” Under AB 3075, successorship may be established if any of the following criteria are established: (1) company uses substantially the same facilities or substantially the same workforce to offer substantially the same services as the judgment debtor; (2) company has substantially the same owners or managers that control the labor relations as the judgment debtor; (3) company employs as a managing agent any person who directly controlled the wages, hours, or working conditions of the affected workforce of the judgment debtor; or (4) company operates a business in the same industry and the business has an owner, partner, officer, or director who is an immediate family member of any owner, partner, officer, or director of the judgment debtor. While legislative history suggests that AB 3075 was introduced to prevent businesses from closing their operations and starting new ones to avoid liability for payments to employees, AB 3075’s language appears to go beyond this narrow scenario and potentially apply, for example, to a third-party company engaged in an asset purchase. <a href="file:///C:/Users/btk1/AppData/Roaming/OpenText/DM/Temp/SAN_FRANCISCO-%234379514-v7-ELC_re__California_Legislation.docx#_ftnref1">[1]</a> See the State Department of Public Health’s website for the latest guidance on this topic: <a href="https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Guidance-on-AB-685-Definitions.aspx">https://www.cdph.ca.gov/Programs/CID/DCDC/Pages/COVID-19/Employer-Guidance-on-AB-685-Definitions.aspx</a>.

Family Medical Leave Act (FMLA)

Leaves of Absence

Wage and Hour

Coronavirus (COVID-19)

Paid Sick Leave

Legislation

More

Of Counsel

DOJ Creates Initiative to Pursue Aggressive False Claims Act Enforcement Against DEI Programs and Civil Rights Violations

Fourth Circuit Stays Injunction of Trump DEI Executive Orders

President Trump Rescinds Affirmative Action for Federal Contractors and Requires Enforcement Plan to End Unlawful DEI at Private Companies

FAR Council Withdraws “Pay Equity and Transparency” Proposed Rule

The “Preventative Duty”: New Law Places Active Duty on Employers in the UK to Prevent Sexual Harassment in the Workplace