By Ana C. Toledo
Attorney, Noland, Hamerly, Etienne & Hoss
As published in the Salinas Valley Business Journal, February 2021
Whether you are a large or small corporation, new laws and notable changes to existing labor regulations effective January 1, 2021 may affect your business. This year, employers should be aware of the following changes:
Attorney’s Fees for Whistleblower Retaliation and Extended Filing Period for DLSE Retaliation Claim (AB 1947)
This legislation amends Section 98.7 of the Labor Code, outlining the period of time employees have to file a complaint with the California Division of Labor Standards Enforcement (DLSE) alleging retaliation (e.g. discharge, discrimination) in violation of law enforced by the Labor Commissioner. Employees will now have one year, instead of six months, to file a complaint but the DLSE may extend this period for good cause. The new legislation also amends Section 1102.5 of the Labor Code, explicitly authorizing a court to award reasonable attorney’s fees to a plaintiff who prevails in a “whistleblower” action for violations of Labor Code Section 1102.5. With attorney fees now clearly available, there will likely be an increase in whistleblower claims against employers.
Best Practice Is To Wash Your Hands (AB 1867)
Existing law requires food employees to wash their hands, and keep their hands as well as exposed areas of the arms clean. AB 1867 added Section 113963 to the Health and Safety Code, mandating all food employees working in any food facility be permitted to wash their hands every 30 minutes and additionally as needed. “Food employee” and “food facility” are used as defined in Section 113789 of the Health and Safety Code. Food facility includes, but is not limited to, permanent and nonpermanent food facilities such as cafeterias, restaurants and mobile food facilities.
COVID-19 Workplace Exposure Reporting (AB 685)
Effective January 1, 2021, public and private employers are required to notify employees, and the employers of subcontracted employees who were at the same worksite as an individual with a positive confirmed case of COVID-19 of their potential exposure. Union representatives of the employees must also receive notice. The written notice must be provided within one business day and include 1) notice of potential exposure to COVID-19; 2) information about COVID-19-related benefits that may be available to applicable employees (e.g. workers’ compensation, paid sick leave); 3) information about anti-retaliation and anti-discrimination protections to employees; and 4) the disinfection and safety plan that the employer will implement per the federal Centers for Disease Control and Prevention guidelines. The notice must be in English as well as any other language understood by the majority of the employees. The written notices must be kept for three years.
In the event a COVID-19 “outbreak” occurs within a 14-day period in the same worksite as the initial positive confirmed case, AB 685 mandates employers report the outbreak to their local public health department within 48 hours of the outbreak. The term COVID-19 “outbreak” is defined by the California Department of Public Health as a non-healthcare or non-residential congregate setting workplace with three or more confirmed cases of COVID-19 among workers who live in different households within a two week period.
The California Department of Industrial Relations issued FAQs on AB 685, which may be found at https://www.dir.ca.gov/dosh/coronavirus/AB6852020FAQs.html
Expansion of Paid Family Leave (AB 2399)
California Paid Family Leave (PFL) provides eligible employees with up to eight weeks of partial wage replacement benefits for employees who take time off work to care for a seriously ill family member (child, spouse, parent, grandparent, grandchild, sibling, domestic partner), or to bond with a minor child within one year of their birth or placement in connection with foster care or adoption. AB 2399 expands PFL to employees who take time off to participate in a “qualifying exigency” related to covered active duty or call to covered active duty of the employee’s spouse, domestic partner, child or parent in the Armed Forces of the United States.
This article is intended to address topics of general interest and should not be construed as legal advice.
© 2021 Noland, Hamerly, Etienne & Hoss