New CA Employment And Labor Laws 2021

California Family Rights Act (CFRA)SB 1383

This is California’s equivalent to the federal Family Medical Leave Act (FMLA).  California has now significantly expanded its CFRA:

1. Covered “Employer” Expanded – CFRA used to apply only to employers with 50 or more employees.  This now applies to employers with at least 5 employees.
2. Covered Family Members Expanded – The CFRA allows eligible employees up to 12 weeks unpaid leave to care for certain family members. Employees must be employed for at least 12 months and worked at least 1250 hours. Family members used to be limited.   The amended CFRA now covers grandparent, grandchild, sibling, or domestic partner, in addition to child, parent and spouse.  Definitions of child, parent, and grandparent all are of the extended family variety.  They include biological, foster, or adoptive, step, a legal ward/guardian, or other person who stood in loco parentis.  For example definition of “child” is “biological, adopted, or foster child, a stepchild, a legal ward, a child of a domestic partner, or a person to whom the employee stands in loco parentis.”
3. Two Parent Limitation Eliminated – CFRA has always allowed up to 12 weeks of protected unpaid leave for birth of a child and baby bonding.  It used to require parents working for same employer to share/split the 12 weeks.  The law now allows 12 weeks for each parent, 24 between the two.
4. Key Employees Exception Eliminated – employers used to be able to deny CFRA leave to “key employees.”  There no longer is that exception.  CFRA protects all eligible employees.
5. Qualifying Exigency Added – The new law adds “qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States” as protected leave.
6. The New Parent Leave Act (effective last January) goes away.  The amended CFRA replaces it as of January 1, 2021.

For small employers this is going to take a lot of getting used to.  This is a complex law that adds to the many protected leaves that already exist.   For example, pregnancy disability, physical or mental disability other than pregnancy, medical condition, paid sick leave, or CA COVID related leave to name the most notable.

The CFRA has strict notice and designation requirements.  If not followed, a violation of the law and/or extended leave beyond 12 weeks may result.  Group health benefits must be maintained on same terms and conditions during employee’s leave. Employee is entitled to return to same or substantially same position.

All California employers should update their handbooks.

CA Minimum Wage Increases to $13/hr (less than 26 employees) and $14/hr (26+ employees) – not new but reminder.  Reminder also that if you have exempt employees they automatically must get a raise.  The minimum salary must be $54,080/yr if your minimum wage is $13/hr and $58,240/yr if your minimum wage is $14/hr. Not paying at least the minimum salary results in the employee being non-exempt and all non-exempt rules apply, including time keeping, overtime, rest and meal periods.

Other New Laws For Employers Effective January 1, 2021

1. AB 2257 revamps AB 5 (from last year) regarding independent contractor status under California law.  If you use independent contractors to perform core business functions you will want to read this law closely.  Odds are high you have an employee, not a “1099” independent contractor.  AB 2257 creates specific exemptions for a particular worker classified as an independent contractor. If no exemption applies then the “ABC Test” created in the California Supreme Court’s Dynamex decision applies.  If so odds will be very high the worker is an employee. That’s because if the worker performs work in the usual course of the hiring entity’s business that’s an employee.  Even if you have an exemption under AB 2257, that means the “Borello test” applies and you might still have an employee.  The Borello test focuses on the right and degree of control a company exerts over the worker.  At least your chances are better under Borello compared to Dynamex. AB 2257 is complex as is independent contractor law generally.  It’s best to seek advice of an experienced knowledgeable employment and labor attorney.
2. Prohibited harassment Government Code section 12950.1 – all California employers (unless you have less than five employees) must ensure all employees are trained by January 1, 2021.  Supervisors must have 2 hours of training every two years.  Non-supervisor employees must have 1 hour of training every two years.  The training must be effective and interactive by a qualified trainer.   New hires and newly promoted supervisors must be trained within 6 months of hire/promotion.  The DFEH was charged with creating and making compliant training available, and it has: https://www.dfeh.ca.gov/shpt/.  The author has taken both the non-supervisor and supervisor/manager training, and while he doesn’t agree with parts of it, it’s free and readily available.  Presumably the DFEH or California Courts cannot complain the training issued by the DFEH was insufficient or non-compliant with the law.
3. AB 685 COVID-19 Notice Requirements – as of January 1, 2021 employers must provide notice to its employees of potential exposures to COVID-19.  Notice must be within one business day.  It must include that employee(s) may have been exposed to COVID-19, certain information regarding COVID-19-related benefits and options, and the disinfection and safety plan that the employer plans to implement and complete. Employer must maintain records of notifications for at least 3 years. If there is an “outbreak” as defined by CA State Health Department (as of October 13, 2020) employer has more obligations.  Employer must within 48 hours report certain information to the local public health agency.  It must also provide ongoing information regarding subsequent laboratory-confirmed cases of COVID-19 at the worksite.
4. AB 3075 – wage enforcement successor employers.  Be aware if you are acquiring a business, the law now clearly saddles the purchaser (“successor”) employer with the liability of having to pay wage and hour judgment if the seller (“predecessor”) employer incurred a wage claim judgment that it has not paid.

Any questions or concerns, call us 855-534-5795 for an attorney experienced and knowledgeable in employment and labor law. Vision Law® Legal Counsel and Protection for Employers.