California Employment Law Update

California Expands Jury Rolls

Gov. Newsom has signed Senate Bill 592 (“SB 592”) into law.  Effective next year, SB 592 requires jury commissioners across the state to include anyone who files state taxes in the pool of prospective jurors.  Currently, prospective jurors are summoned from lists of registered California voters and licensed drivers, which total approximately 47 million people.  While there will likely be significant overlap, SB 592 is expected to add several million more names to the jury pool, including residents who presumably are not registered to vote and who do not drive, but who do file state tax returns.

According to state senator Nancy Skinner (D-Berkeley), who co-authored the bill, the measure is needed because, “Our juries now in California are wealthier and whiter than California residents as a whole, and certainly wealthier and whiter than most of the people who they are sitting there to judge.”

This follows a recent trend in California to expand the jury pool.  Last year, Gov. Newsom signed Senate Bill 310, which allows convicted felons to serve on juries (with some exceptions).

California Expands Its Already Generous Leave Requirements To Cover Even Smaller Employers

Amidst the COVID-19 pandemic and the flurry of associated leave issues, Gov. Newsom recently signed Senate Bill 1383 (“SB 1383”) into law, which provides up to 12 weeks of job-protected leave under the California Family Rights Act (“CFRA”) to employers with as few as five employees.  Beginning on January 1, 2021, when SB 1383 takes effect, employees of most small employers will be eligible for leaves of absence: (1) for the birth of a child; (2) for adoption or foster care placement of a child; (3) to care for a seriously ill family member; and/or (4) to care for the employee’s own serious health condition.

In addition to significantly increasing the number of employers to which the CFRA applies, SB 1383 also expands the definition of a “seriously ill family member” to include grandparents, grandchildren and siblings.  It also permits eligible employees to take CFRA leave for a qualifying exigency related to the 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.

The California Chamber of Commerce identified SB 1383 as a “Job Killer” bill due to the significant administrative burden it places on small employers, “as well as increased litigation threats for small businesses trying to reopen during COVID-19 while simultaneously administering a complex and technical leave of absence.

Employers small and large alike should review their CFRA and related leave policies and practices to ensure compliance with these changes.

California Mandates Diversity Quotas for Corporate Boards

On September 30, 2020, Gov. Newsom signed Assembly Bill 979 (“AB 979”) into law.  The new statute, which adds section 301.4 to the Corporations Code, is aimed at increasing representation from communities of color and the LGBT community on the boards of publicly traded companies.  The law follows in the footsteps of earlier legislation that required publicly traded corporations in California to hit certain gender targets on their boards.

AB 979 applies to publicly held domestic or foreign corporations whose principal executive offices are located in California, according to the companies’ filings with the U.S. Securities and Exchange Commission.  The law requires that covered corporations have at least one director from an “underrepresented community” on their board by the close of calendar year 2021; it sets further targets for board membership by the close of the 2022 calendar year, depending on total board size.  AB 979 defines a “director from an underrepresented community” as a director who self-identifies as “Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, or Alaska Native, or who self-identifies as gay, lesbian, bisexual, or transgender.”

And, AB 979 has teeth:  It empowers the Secretary of State to impose fines on corporations that fail to comply—ranging from $100,000 to $300,000.  AB 979 also requires that the Secretary of State post annual reports on its website listing, among other information, the number of corporations that are in compliance with the new requirements as well as information regarding those corporations that either moved their headquarters to California or out of it.

The same day Gov. Newsom signed AB 979 into law, Washington, D.C.-based conservative legal group Judicial Watch, Inc. filed a constitutional challenge to the legislation in Los Angeles Superior Court arguing that the new law fails under strict scrutiny review.

September 2020 California Employment Law Notes

We invite you to review our newly-posted September 2020 California Employment Law Notes, a comprehensive review of the latest and most significant developments in California employment law. The highlights include:

View PDF

Spread The Word: California Enacts COVID-19 Exposure Notification Law

Late last week, Gov. Newsom signed AB 685 into law which, among other things, adds section 6409.6 (“Section 6409.6”) to the Labor Code.  The new statute, which takes effect January 1, 2021, requires that employers notify employees and, in some instances, public health officials about COVID-19 exposures at work.

Specifically, Section 6409.6 requires that employers take all of the following steps within one business day of notice of a potential exposure in the workplace:

  • Provide written notice to all employees (and employers of subcontracted employees), who were on the premises at the same “worksite” as the infected or potentially infected individual that they may have been exposed to COVID-19;
  • Provide a written notice of the exposure or potential exposure to any union, if any;
  • Provide all potentially exposed employees and any union, if any, with information regarding COVID-19-related benefits, as well as the anti-retaliation and anti-discrimination protections under California  law; and
  • Notify all employees, and the employers of subcontracted employees and any union, if any, on the disinfection and safety plan that the employer plans to implement and complete, per CDC guidelines.

Section 6409.6 also requires that, when an employer is notified of the number of cases that meet the State Department of Public Health’s definition of a COVID-19 outbreak, within 48 hours, the employer must notify the local public health agency of the names, number, occupation, and worksite of each employee with COVID-19.

Section 6409.6 establishes penalties for non-compliance.  Therefore, employers should review their COVID-19 infection control and notification procedures—and keep them updated—so that they are ready to comply on January 1st.

California’s New Supplemental Paid COVID-19 Sick Leave, Effective September 19, 2020

On September 9, 2020, Governor Newsom signed Assembly Bill 1867 (“AB 1867”), which is intended to fill gaps left by the Families First Coronavirus Response Act (“FFCRA”). The new law requires that private employers with 500 or more employees in the United States provide eligible (non-food sector) employees with up to 80 hours of supplemental paid COVID-19 sick leave (“Supplemental COVID-19 Leave”). AB 1867 also codifies the food sector-specific supplemental paid leave provided under Executive Order N-51-20, and extends paid leave benefits to health care and emergency responders who were not provided with paid sick leave under the FFCRA.

For non-food or emergency sector employees, AB 1867 adds section 248.1 to the Labor Code (“Section 248.1”), which requires covered employers to provide eligible workers with Supplemental COVID-19 Leave, beginning September 19, 2020, when they are unable to work due to any of the following reasons:

  • The employee is subject to a federal, state, or local quarantine or isolation order related to COVID-19;
  • The employee is advised by a health care provider to self-quarantine or self-isolate due to concerns related to COVID-19; and/or
  • The employee is prohibited from working by the employer due to health concerns related to the potential transmission of COVID-19.

Eligible employees who are classified as “full time” or who worked or were scheduled to work, on average, at least 40 hours per week during the two weeks preceding the leave are entitled to up to 80 hours of leave. Workers who are not considered “full time” or who work fewer than 40 hours per week are entitled to leave based on one of three calculation methods.

Subject to certain conditions, Supplemental COVID-19 Leave runs concurrently with similar leave provided under local COVID-19 leave ordinances and/or orders, but it is distinct from and in addition to non-COVID-19 sick leave.  Like FFCRA paid leave, Supplemental COVID-19 Leave is capped at $511 per day and/or $5,110 in the aggregate per employee.

AB 1867 also requires that covered employers post a notice poster in workplaces or, if employees are not at the worksite, provide it to them electronically.  In addition, covered employers must include information regarding employees’ Supplemental COVID-19 Leave balances in the same manner as for non-COVID-19 paid sick leave, in accordance with Labor Code section 246(i), beginning the first full pay period after September 9, 2020.

California employers with 500 or more employees should, therefore, move quickly to update COVID-19-related leave policies, provide notice and update their wage statements, as non-compliance comes with the potential for penalties.