New California Employment Laws for 2021 – Part 2

New Employment Laws for 2021

By Randy A. Lopez

Expansion of California Family Rights Act

The expansion of the California Family Rights Act (“CFRA“) provides that employers with five (5) or more employees (down from 50 under previous CFRA, or 20 employees from New Parent Leave Act) must provide eligible employees up to 12 weeks of unpaid protected leave during a 12-moth period if needed due to the employee’s own serious health condition, to care for a family member with a serious condition, or to bond with a new child.  To be eligible, the employee must have worked for at least 12 months with the company and worked at least 1,250 hours during the previous 12-month period of employment.  The previous “work within 75 miles of a worksite” is eliminated.  Under the expansion “family member” now includes grandparent, grandchild, and sibling.

As a result of the differing definition of “family member”, an employee may be able to take 24 weeks of leave under CFRA and federal FMLA.  This also does not include leave due to pregnancy which provides for 4 months of leave under the California Pregnancy Disability Leave.

Additionally, the new law provides up to 12 weeks of unpaid protected leave due to a qualifying exigency related to covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the United States Armed Services.

Furthermore, parents who work for the same employer will be entitled to 12 weeks of unpaid leave each to bond with a new child, and the parents can request leave to bond with the child at the same time.

New Mediation Program for Small Employers

The program, which applies to companies with 5 to 19 employees, is a pilot program created due to concerns that small businesses/employers would face increased litigation risk due to non-compliance with (or even ignorance of) the new CFRA provisions.  If a small employer receives a “Right-To-Sue” letter from the California DFEH regarding a claim under the new CFRA, then the employer may request mandatory mediation through the DFEH.  Upon this request being made, the employee cannot pursue his/her claim in civil court until the mediation is completed.  It is important to understand that if the employer seeks mediation, there is no requirement that the claim be settled at mediation.  The goal is to help the parties resolve the claim.  Please note that the statute of limitations for the employee to bring a civil action will be tolled.  The program will be in effect until January 1, 2024. 

Employee Leave – Victim

Current law prohibits discharge, discrimination or retaliation of employees who are victims of domestic violence, sexual assault or stalking, for taking time off from work to obtain or attempt to obtain relief to help ensure the health, safety or welfare of the victim or victim’s child.  The law expands this protection to employees who are victims of a crime or abuse for taking time off from work to obtain or attempt to obtain relief, which includes a temporary restraining order or other injunctive relief to help ensure the health, safety or welfare of the victim or their child.  Employers are also prohibited from taking action against employees when an unscheduled absence occurs if employees provide certification that they were receiving treatment or services for certain injuries, or if the documentation is from a victim advocate.

The term “victim” includes: a victim of stalking, domestic violence, or sexual assault; a victim of a crime that caused physical injury or that caused mental injury and a threat of physical injury; or a person whose immediate family member is deceased as the direct result of a crime.  The term “immediate family member” includes “any other individual whose close association with the employee is the equivalent of a family relationship”.

For employers with 25 or more employees, employers are prohibited from discharging, discriminating or retaliating against employees who are victims and need to take time from work to seek medical attention for injuries, obtain services from certain entities, obtain psychological counseling or mental health services, related to or caused by crime or abuse, or to participate in safety planning or take other action to increase safety against future crime or abuse.

Designation of Paid Sick Leave – Kin Care

When an employee takes sick leave to attend to the illness of a family member, the designation of sick leave is at the discretion of the employee.

Complaints, Claims and Settlement Related

DLSE Complaints Filing Period Extended

Employees who believe they have been discharged or otherwise discriminated against in violation of any law enforced by the Labor Commissioner will now have one (1) year to file a complaint with the DLSE, up from six (6) months.  The new law also authorizes the court to award reasonable attorneys’ fees to a plaintiff who successfully brings a whistleblower action under Labor Code 1102.5. 

No Rehire Provisions in Settlement Agreements

The existing law prohibited employers from including “no rehire” provisions in settlement agreements unless the employer had made a good faith determination that the aggrieved employee engaged in sexual harassment or assault.  This has been modified to require that the aggrieved person has filed the claim in good faith in order for the provision to apply.  However, an exception lies allowing an employer to include a “no rehire” provision if the employer has made a good faith determination that the “aggrieved person” engaged in sexual harassment or sexual assault, and such determination is documented before the aggrieved person filed the claim.  Further, the exception is also extended to include determinations of criminal conduct.

Labor Commissioner To Represent Claimants In Arbitrations

Labor Commissioner’s Office will now be authorized to represent claimants who cannot afford counsel in arbitration.  The new law allows for the Labor Commissioner to represent a claimant where the claimant is unable to have the claim adjudicated and decided by the Labor Commissioner under Labor Code §§98, 98.1 and 98.2 as a result of a court order compelling arbitration.  Further, a petition to compel arbitration of a claim that is pending under Section 98, 98.1 or 98.2 must be served on the Labor Commissioner.  Thereafter, upon a claimant’s request, the commissioner may represent the claimant in proceedings to determine the enforceability of the arbitration agreement.

Miscellaneous

Pay Day Report to DFEH

Private employers with 100 or more employees must submit, by March 31, 2021, a Pay Day Report to the California Department of Fair Employment and Housing.  This requirement will continue annually if the employer is required to file an annual Employer Information Report under federal law.  Employers are required to collect aggregate W-2 earnings and report the number of employees in each of the 12 pay bands for the 10 broad job categories, classified by race, gender, and ethnicity.  Employers must also report the total hours worked by each employee within a given pay band during the reporting year.  Employers with multiple establishments must submit a report for each establishment as well as a consolidated report. 

Successor Liability for Unpaid Wages

A company will be required to state in its “Statement of Information” whether any officer or director, or any member or manager in a limited liability company, has an outstanding final judgment issued by the DLSE or a court of law, where no appeal is pending, for the violation of the Labor Code.  Additionally, and most importantly, the new law provides that a successor employer is liable for any damages, wages, and penalties to a final judgment, if the successor employer meets any of the following criteria:

  1. Uses substantially similar/same facilities or substantially similar workforce to offer substantially the same services as the predecessor employer.
  2. Substantially same owners or managers exist that control the labor relations of the predecessor employer.
  3. Employs as a managing agent any person who directly controlled the wages, hours or working conditions of the affected workforce of the predecessor employer.
  4. 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 predecessor employer.

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We know this is a lot of information to digest.  If you have any questions relating to these new laws or any other issues, please do not hesitate to contact either Toni Y. Long or Randy A. Lopez directly. 

DISCLAIMER: The information contained above is solely provided for informational purposes and does not constitute legal advice.  All readers should consult with legal counsel for additional and/or current information, and before acting on any of the information presented.