On September 30, 2019, Governor Gavin Newsom signed California legislation—Senate Bill (SB) 206—that would permit college student athletes to benefit financially (for example, from endorsement deals) from their names, images, and likenesses while still in school. Governor Newsom signed the Fair Pay to Play Act, which Senator Nancy Skinner (D-Berkeley) and Senator Steven Bradford (D-Gardena) sponsored, with much fanfare, alongside a high-profile professional basketball player and several former college student athletes. The new law is scheduled to take effect in January 2023.
Among the numerous worker-protection bills California governor Gavin Newsom signed last month was Assembly Bill (AB) 9, giving employees a two-year extension to file Fair Employment and Housing Act (FEHA) claims.
The California wildfire smoke regulation, an emergency regulation that took effect on July 30, 2019, is scheduled to become permanent on January 28, 2020. In the wake of the wildfires that have emerged throughout California, employers may want to become familiar with the regulation’s requirements.
On October 10, 2019, California Governor Gavin Newsom signed into law a state statute purporting to prohibit employers from requiring employees to enter into certain types of arbitration agreements. This new law is creating significant uncertainty and anxiety among employers. What is the practical impact of AB 51 in light of its possible preemption by the Federal Arbitration Act (FAA) and other potential challenges to its limits on arbitration?
California employers have long grappled with two wage and hour questions:
- What rate of pay should be used to calculate meal and rest period premiums in California?
- Does the facially neutral “rounding” of employee work time, which results in a small subset of employees being undercompensated, result in systematic undercompensation on a class-wide basis?
California is set to become the only state to outlaw predispute mandatory arbitration of statutory employment claims. On October 10, 2019, Governor Gavin Newsom signed California Assembly Bill (AB) 51, which prohibits employers from requiring employees to arbitrate claims arising under the California Fair Employment and Housing Act (FEHA) and related employment statutes.
On October 11, 2019, Governor Gavin Newsom signed into law Assembly Bill (AB) 25, which amends the California Consumer Privacy Act of 2018 (CCPA). AB 25 seeks to ease the pain for employers struggling to comply with the CCPA, which goes into effect on January 1, 2020.
Employment litigation settlement agreements often include a mutually negotiated “no-rehire” provision by which the departing employee agrees not to seek employment with the company in the future. A recently enacted California law will require companies to refrain from including such provisions in most instances.
Although California does not have a specific biometric privacy law like Illinois’s 2008 Biometric Information Privacy Act (BIPA) or its recently enacted 2019 Artificial Intelligence Video Interview Act (AIVIA), stay tuned for the impact of the California Consumer Privacy Act (CCPA), which goes into effect on January 1, 2020. The CCPA will directly affect how certain employers use biometric data in the workplace.
Legislatures across the country are racing to keep up with the ever-expanding uses of artificial intelligence (AI) in the workplace. While to date much of the focus has been on ethical uses of AI, disclosures requirements, and informed consent (e.g., the Illinois 2019 Artificial Intelligence Video Interview Act), the California legislature recently took the bold move of promoting AI as a tool to reduce bias and discrimination in hiring and employment.
The answer is not as much as you may think. Much of the recent media coverage of California’s Assembly Bill 5 (AB 5) suggests that the bill represents a sea change in California law with respect to the classification of independent contractors.
On August 30, 2019, California Governor Gavin Newsom signed Senate Bill (SB) 778 into law, thereby giving employers more time to comply with the state’s sexual harassment training requirement.
On September 11, 2019, the California Assembly passed a bill codifying last year’s Supreme Court of California decision establishing a new test to determine whether a worker is an independent contractor or an employee.
Signaling a growing movement to align culturally inclusive practices with legal protections, California has become the first state to expressly ban discrimination based on hairstyle and hair texture associated with a person’s race. On July 3, 2019, Governor Gavin Newsome signed into law Senate Bill No. 188, the Create a Respectful and Open Workplace for Natural Hair Act (CROWN Act).
Currently, certain employers are required under federal law to file annual Employer Information Reports (EEO-1) with the Equal Employment Opportunity Commission. These EEO-1s must contain data regarding demographics of the employer’s workforce. Accordingly, employers covered by federal EEO-1 reporting requirements were required to file EEO-1 Component 1 data from 2018 by May 31, 2019, and must still submit Component 2 EEO-1 (pay and hours worked) data for their workforces by September 30, 2019. Not to be outdone, the State of California is poised to impose a similar requirement on employers.
On July 30, 2019, the California Division of Occupational Safety and Health (Cal/OSHA) announced that its “emergency regulation requiring employers to protect workers from hazards associated with wildfire smoke is now in effect, following its approval yesterday by the [California] Office of Administrative Law.”
California is expanding state benefits available to workers who lose wages while taking time off to care for a seriously ill family member or to bond with a new child. On June 27, 2019, Governor Gavin Newsom signed California’s 2019-20 state budget, which included an expansion of the state’s family temporary disability insurance program administered through the Employment Development Department (EDD). The benefit program is commonly referred to as “paid family leave” or PFL.
The U.S. District Court for the Eastern District of California recently ruled in an employment class action regarding misclassification of trucking industry owner-operators as independent contractors. The ruling is a win for numerous industries.
A hot-button issue in California is whether an employer is required to pay for or reimburse an employee for shoes that are required as a condition of employment. A recent ruling by the California Court of Appeal highlights the complexity of the issue and lack of concrete guidance on a critical question: whether California workplace safety law requires an employer to pay for nonspecialty safety shoes, such as generic steel-toe boots, that the employer allows the employee to wear off the jobsite.
On July 9, 2019, the California Senate Judiciary Committee passed Assembly Bill 25 (AB 25), but only after certain changes were made to quell opposition to the bill by labor groups. The bill was originally drafted to exclude employees and job applicants from the definition of “consumer” under the California Consumer Privacy Act of 2018 (CCPA).
On June 10, 2019, the Supreme Court of the United States unanimously ruled that state wage and hour laws do not apply to offshore drilling workers where federal law addresses the relevant issue. In Parker Drilling Management Services v. Newton, No. 18-389, the Supreme Court answered the question of whether California’s laws governing the minimum wage and payment for “standby time” applied to workers on oil rigs in federal waters off the coast of California.
More and more organizations are beginning to use or expand their use of artificial intelligence (AI) tools and services in the workplace. Despite AI’s proven potential for enhancing efficiency and decision-making, it has raised a host of issues in the workplace which, in turn, have prompted an array of federal and state regulatory efforts that are likely to increase in the near future.
On May 29, 2019, the California State Assembly passed Assembly Bill 25. The bill now moves to the state senate for a vote.
The California State Senate and Assembly have been busy this year, moving a number of employment law bills through the legislative process. May 31, 2019, was the deadline for either the assembly or the senate to pass a bill and send it to the other house. A few employment-related bills failed to advance, but there are still a dozen major bills marching forward.
On May 29, 2019, Assembly Bill No. 5 (AB 5) passed a California State Assembly floor vote and headed to the senate. The bill would codify the “ABC” test announced this past year by the Supreme Court of California.
On April 18, 2019, the California Occupational Safety and Health Standards Board will consider an update to the regulations governing nighttime agriculture operations at its monthly meeting. In 2013, the Division of Occupational Safety and Health (or Cal/OSHA) asked for a revised regulation because of prior accidents or fatalities that occurred during the darkness of nighttime agriculture operations.
As the January 1, 2020, effective date for the California Consumer Privacy Act (CCPA) draws closer, California lawmakers are still attempting to refine the law.
As California employers wait to see how the California legislature votes on independent contractor bills after the new ABC test was announced by the California Supreme Court last year, a recent federal case out of the U.S. District Court for the Eastern District of California has received some attention in the transportation industry.
California Senate Bill (SB) 188 seeks to provide a broader definition of “race” in California’s anti-discrimination law. The bill defines “race” as “inclusive of traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”