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GOVERNANCE, RISK AND COMPLIANCE NEWS
California Department of Justice issues third draft of privacy regulations.
On March 11, Attorney General Xavier Becerra released his second round of changes to regulations implementing the California Consumer Privacy Act of 2018 (CCPA). The second amended version of the regulations do may well be the final ones given the narrow scope of the changes. This will mean that the regulatory enforcement date will likely be before the July 1,2020 ultimately deadline for enforcement by the Department of Justice (DOJ).
A number of organizations representing businesses across the entire economic spectrum have requested the DOJ to postpone finalizing the rules because of the uncertainty surrounding the California Privacy Rights and Enforcement Act (CPREA) proposed initiative now gathering signatures for the November 2020 ballot. It is expected the initiative will qualify and make substantial revisions to the CCPA and in particular who will enforce its provisions.
For more on the DOJ rules see: https://oag.ca.gov/privacy/ccpa
New California Employment Laws Become Effective January 1, 2020. There were a number of high profile bills regarding employment matters sent to Governor Newsom this year. He signed the following:
SB 142 (Wiener) – requires the California Building Standards Commission (Commission) to develop and propose for adoption building standards for the installation of lactation space for employees, specifies criteria for lactation rooms provided by employers, requires employers to develop and implement a lactation accommodation policy, as specified, and instructs the Division of Labor Standards Enforcement (DLSE) to create a model lactation accommodation policy.
SB 530 (Galgiani) – provides that construction industry employers who employ workers pursuant to a multi-employer collective bargaining agreement can satisfy sexual harassment training and education requirements by verifying completion of specified training provided by a state approved apprenticeship program, labor management training trust, or labor management cooperation committee.
SB 688 (Monning) – provides that if the Labor Commissioner determines an employer has paid a wage less than the wage set by contract in excess of minimum wage, the Labor Commissioner may issue a citation to the employer to recover restitution of the amounts owed.
AB 5 (Gonzalez) – is the codification of the Dynamex “ABC” employment test articulated by the California Supreme Court last year. The application of the test is subject to multiple exceptions and, in general, there is still considerable confusion as to the application of the new law. The author of the bill, Assemblymember Lorena Gonzalez, authored what is known as a Letter to the Journal expressing her intent that AB 5, and specifically Labor Code § 2750.3(e) relating to “business-to-business” contracting, was not intended to change the law on co-employment. This will be one of the many issues litigated in the coming year. Whether a threatened initiative from ride-sharing and other digital platform companies emerges remains to be seen. Regardless, this issue will be the subject of additional legislation in 2020.
AB 9 (Reyes) – extends the deadline by which victims of workplace harassment, discrimination, or civil rights-related retaliation must file their allegation with the Department of Fair Employment and Housing (DFEH) or forever forgo redress on those grounds. Currently, a victim must ordinarily file within one year of the most recent incident giving rise to the claim. This bill would give victims three years to file instead.
AB 51 (Gonzales) – prohibits California employers from forcing employees to waive, as a condition of employment, continued employment, or the receipt of any employment-related benefit, their right to have future legal disputes over incidents of harassment, discrimination, civil rights-related retaliation, or Labor Code violations heard in the dispute resolution forum of their choice. The bill also protects California workers from retaliation if they refuse to agree to such a waiver.
AB 170 (Gonzales) – adds newspapers delivery services to the list of exempt work not subject to the “ABC” employment test in Labor Code § 2750.3 (AB 5 and Dynamex).
AB 547 (Gonzales) – requires the Director of the Department of Industrial Relations (DIR) to re-form an advisory committee to refine the recommendations on in-person sexual violence and harassment prevention training requirements for janitorial employers and employees. The bill also adds requirements to the janitorial employer registration process, including, but not limited to, the employer has no wage and hour final judgments outstanding, pending wage and hour liens or suits in court or with the Department of Fair Employment and Housing (DFEH), or lack of compliance with all terms of any DFEH administrative settlement.
AB 749 (Stone) – prohibits settlement agreements which contain a provision that restricts an employee from working for the employer against which the employee has filed a claim.
The California minimum wage increased again on January 1, 2020. The new rate is $13.00 per hour for workers at businesses with 26 or more employees and $12.00 per hour for workers at small businesses (25 or fewer employees).
It is important to note that several local jurisdictions have minimum wage requirements that are higher than the state minimum wage. These local ordinances are not preempted by the state law. As stated by the Department of Industrial Relations (DIR), “The effect of this multiple coverage by different government sources is that when there are conflicting requirements in the laws, the employer must follow the stricter standard; that is, the one that is the most beneficial to the employee.”
For more information see: https://www.dir.ca.gov/dlse/faq_minimumwage.htm
For more information on local minimum wage ordinances see:
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