Happy Holidays! On October 1st, Stacy L. Fode, Esq. joined Nukk-Freeman & Cerra, P.C. as a Partner, thus introducing "NFC | West" operating out of San Diego and servicing Southern California.

A core distinction at NFC is our commitment to keeping our clients apprised of key employment law issues and updates delivered in an eAlert format and deposited directly to our recipients' inboxes.

The first of such is featured below. We hope you enjoy the inaugural issue of this series and encourage you to invite team members and contacts, if they too would like to be added to our distribution list, by clicking HERE.
California Employers: 2021 is Almost Here!

You Are Ready to Ring Out the Old
But Are You Ready to Ring in the New?

The California legislature and State and Federal agencies have been busy this year creating new policies in response to the COVID-19 pandemic, racial justice inequities, pay equity issues, employee classification questions, and everything in between! With many of these changes going into effect in the coming weeks, NFC wants to make sure your business is prepared to meet the challenges of 2021. 

To help you properly ring in the New Year, we have created the following “Top 5” checklist for California employers: 
* TIMELY REPORT COVID-19 EXPOSURES – As of January 1, 2021, employers must provide written notification within one business day to employees who may have been exposed to COVID-19 in the workplace and report an “outbreak” to local health officials within 48 hours. Cal/OSHA now has the authority to close a facility it deems an “imminent hazard” and to issue “serious violation” citations to employers without prior notice.

* KEEP UP WITH QUARANTINE GUIDANCE & IMPACT OF SHELTER IN PLACE ORDERS – State guidance on the length of time employees should be excluded from the workplace has been the subject of conflicting regulations issued by Cal/OSHA and the California Department of Public Health. Current guidelines require employers to allow asymptomatic employees to return from quarantine after 10 days (7 for specified critical infrastructure workers), unless local health department guidelines are more restrictive. 
* CONSIDER WHETHER AND HOW TO REQUIRE EMPLOYEE VACCINATIONS Now that the availability of COVID-19 vaccines is on the horizon, employers should determine their position on whether to require employees to get vaccinated. Consider reaching out to counsel to draft applicable polices that comply with the EEOC’s recently issued guidelines and avoid violations of the Americans with Disabilities Act, Title VII or the Fair Employment and Housing Act.

* MONITOR WORKERS’ COMPENSATION CLAIMS – Through January 1, 2023, a presumption of workers’ compensation compensability applies to claims filed for COVID-19 by certain first responders and healthcare workers and for any employee (of a company with 5 or more employees) who tests positive within 14 days of being at a worksite or during an “outbreak” at the workplace. If a presumption applies, employers have a shortened window to deny the claim. 
* TAKE NOTICE SMALL BUSINESSES, CFRA NOW INCLUDES YOU! – Previously, the California Family Rights Act (“CFRA”) applied only to employers with 50 or more employees within 75 miles of the worksite. As of January 1, 2021, the threshold is lowered to employers with five or more employees, regardless of location.

* UNDERSTAND EXPANSION OF FAMILY AND MEDICAL LEAVE– Employees may take CFRA leave for their own serious health condition as well as the serious health condition of a family member. As of January 1, 2021, the definition of family is expanded to include grandparents, grandchildren, siblings, child of a domestic partner and any child with a serious health condition, regardless of age. In addition, qualifying reasons for leave are extended to certain military exigencies. Finally, “key” employees may no longer be excluded from the reinstatement requirement following covered leave.

* BE PREPARED TO OFFER LEAVE TO VICTIMS OF CRIME OR ABUSE – Effective January 1, 2021, new legislation expands existing protections to certain crime victims and includes time off to seek medical attention, obtain psychological or other services and participate in safety planning from future crimes or abuse.

  • NEW MINIMUM WAGE – As of January 1, 2021, the State minimum wage will increase to $14/hour for companies with more than 25 employees and $13/hour for those with 25 employees or less.
  • NEW SALARY THRESHOLDS FOR EXEMPT EMPLOYEES – For employers with more than 25 employees, the new minimum annual salary for exemption from wage and hour laws as of January 1, 2021 will be $58,240/year; for smaller employers, the threshold is $54,080/year. The minimum wage for computer software employees to be considered exempt increases to $47.48/hour.

  • Don’t forget to check local minimum wage ordinances or any applicable industry wage orders.
* GET READY FOR PAY DATA REPORTING – Employers with 100 or more employees that file EEO-1 reports now must also file with the State an annual report identifying the number of employees by race, ethnicity and sex in identified job categories and pay bands. The first report is due March 31, 2021 and employers are encouraged to work with counsel to conduct a privileged pay equity audit early in 2021.
* CONDUCT MANDATORY PREVENTION OF CHILD ABUSE TRAINING FOR HR AND SUPERVISORS OF MINORS – New training requirements under the Child Abuse and Neglect Reporting Act apply to those businesses with employees under 18 years of age. As of January 1, 2021, Human Resources employees and the supervisors of minor employees are newly designated as mandated reporters and must be trained on identification and reporting of child abuse and neglect. Although the law does not specify when this training must be conducted, we recommend employers provide training by April 1, 2021 for current employees and within 90 days of hire for new hires.
* SCHEDULE HARASSMENT TRAINING FOR TEMPORARY AND SEASONAL WORKERS – Employers are required to provide sexual harassment training to both employees and supervisors. As of January 1, 2021, they also must train temporary and seasonal workers within 30 days of hire or within 1,000 hours worked, whichever occurs first.

* MAKE SURE TRAINING DOES NOT INCLUDE “STEREOTYPING” OR “SCAPEGOATING” – All employers who receive federal funding should be aware of the Executive Order on Combating Race and Sex Stereotyping. As of November 2020, any workplace training that “inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating” is prohibited, calling into question some components of training that address unconscious bias or the history of systemic racism and white privilege. Although it is anticipated that this E.O. will be repealed by the Biden administration, it is the current state of the law and employers should review their training modules for compliance.

Employee misclassification is always a hot topic in California and this year is no exception. In September, new legislation added further exemptions to 2019’s AB5, which codified the “ABC” test making it more difficult for employers to classify workers as independent contractors rather than employees. And in November, the public voted to approve Proposition 22, exempting app-based rideshare and delivery workers from the test. If you are currently using or contemplating using independent contractors, we suggest you reach out to counsel to review your employee classifications.

Of course, the best way to make sure you are ready for 2021 is to regularly review your Employee Handbook and policies. Feel free to reach out to us at NFC for help keeping up with the ever-evolving legal landscape at 619.292.0515.

Happy New Year to all of NFC's friends!
Employment Law Solutions That Work.
This publication/newsletter is for informational purposes only and does not contain or convey legal advice regarding any specific situation. This material may also be considered attorney advertising under court rules of certain jurisdictions.