Here is the second half of our two-part article on new employment law legislation affecting California employers.
California Family Rights Act
With certain exceptions, the existing Moore-Brown-Roberti California Family Rights Act tracks the federal Family and Medical Leave Act of 1993. SB 1383 creates more, and significant, differences between the two laws. California employers must follow the more generous provisions of state law.
SB 1383’s most significant change is to require employers of 5 or more employees to provide up to 12 weeks of job-protected leave for covered reasons. Reasons for leave include the employee’s own illness, illnesses of covered relatives, and certain leaves related to military service.
The Pregnancy Disability Leave law remains applicable to employers of 5 or more workers. The total amount of leave available to an employee requiring pregnancy disability leave may exceed four months under the Pregnancy Disability Leave law, plus the 12 weeks afforded by the CFRA. The law renders unnecessary California’s “New Parent Leave Act,” which took effect on January 1, 2018.
SB 1383 also modifies the law applicable to the larger employers covered by both the Family and Medical Leave Act and the California Family Rights Act. First, to be eligible for leave, workers no longer must work at a site where more than 50 employees are employed within a 75-mile radius. SB 1383 also expands the “covered relatives” for whose illnesses employees may take leave. As a result, employers covered by both federal and state law may find that up to 12 weeks of FMLA leave remains available to employees who take CFRA leave for reasons not covered by FMLA, such as to care for grandparents.
AB 1867 creates a pilot mediation program for small employers faced with potential violations of the law. However, California employers, large and small, must change policies, notices, forms, and procedures by the January 1, 2021, effective date. Employers that “subcontract” leave administration must ensure vendors properly handle leaves under SB 1383.
Existing Labor Code section 233 is known as the “Kin Care” law. Briefly, employers who grant employees paid sick leave must allow workers to use part of the entitlement for covered relations’ illnesses. AB 2017 makes clear that only the employee can decide whether given time off is counted against the Kin Care entitlement. Paid sick leave laws separately require employers to permit workers to use time off for covered relations’ illnesses.
Crime Victim Leave Expansion
Existing Labor Code sections 230 and 230.1 provide time off to employees who serve as jurors and witnesses. These laws also prohibit discrimination or retaliation against workers who seek restraining orders and other judicial relief against perpetrators of certain crimes. Under existing section 230, all employers must grant reasonable accommodations for workers who were victims of domestic violence, stalking and sexual assault. Section 230.1, applicable only to employers of 25 or more persons, grants workers unspecified time off to seek medical care, counseling and other relief.
AB 2992 expands the type of crimes for which workers may seek judicial relief, time off, and reasonable accommodation. An employee who is a victim of virtually any crime that causes physical injury, mental injury and a threat of physical injury, or death to an immediate family member, will be entitled to the protections of sections 230 and 230.1.
AB 2992 makes other changes as well. To avoid liability, employers must adjust policies and procedures to ensure they do not deny employees leave to which they are entitled under AB 2992.
Consumer Privacy Act Initiative
The public approved Proposition 24 in the November 3 election. Proposition 24 strengthens the existing California Consumer Privacy Act, which took effect last year. This law regulates how certain large businesses collect, store, and share information about consumers. Covered data include information typically gathered and kept about applicants and employees.
Proposition 24 does not apply to employment-related records until January 1, 2023. However, covered businesses must review how Proposition 24 revises the Consumer Privacy Act and address the non-employment provisions now.
Other New Laws
Several additional new laws affect only certain industries; others will not require policy changes but will affect rights and liabilities. Among the most significant new provisions are the following:
Employers participating in the Employment Development Department’s “Work Sharing” program will find some modifications intended to make participation easier, courtesy of AB 1731.
The statute of limitations for filing certain claims before the Labor Commissioner increases from six months to one year under AB 1947. That law also added an attorney’s fees provision to the state whistleblower law, Labor Code section 1102.5. SB 1384 permits the Labor Commissioner to appoint an attorney to represent financially indigent workers in wage claims sent to arbitration.
Certain incarcerated individuals who worked on “hand crews” fighting California wildfires won not only their freedom from prison, but also reversal of their convictions and expungement of their crimes. AB 2147 excludes only very serious crimes; most will be covered by this law.
Publicly traded companies with California headquarters must ensure their boards of directors comply with AB 979, imposing phased-in quotas on board composition.
AB 1512 grants the security guard industry some temporary relief from stringent rest period requirements. And, AB 2479 affords some temporary relief to certain petroleum industry facilities.
Finally, San Francisco’s “Overpaid Executive Gross Receipts Tax” will enhance the City and County’s existing gross receipts or payroll tax when its “highest paid managerial employee’s” pay is more than 100 times the average pay rate of workers in San Francisco. This voter-passed initiative takes effect in 2022.