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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
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:
Important Labor Legislation Continues to Move in Sacramento. While the California Legislature is operating in a unique environment looking to take action only on essential bills, there are a number of measures still moving in the process relating to employment issues in general and particularly Dynamex and COVID-19 matters, that have passed policy committees and are still alive. These include:
SB 973 (Jackson) – requires, on or before March 31, 2021, and on or before March 31 each year thereafter, a private employer who has 100 or more employees and who is required to file an annual Employer Information Report under federal law, to submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains specified wage information. The bill would require the DFEH to make the reports available to the Division of Labor Standards Enforcement (DLSE) upon request. The bill would authorize the DFEH, if it does not receive the required report from an employer, to seek an order requiring the employer to comply, as specified. The bill would require the DFEH to maintain the pay data reports for a minimum of 10 years and would make it unlawful for any officer or employee of the DFEH or the division to make public in any manner whatever any individually identifiable information obtained from the report prior to the institution of certain investigation or enforcement proceedings, as specified.
This bill would also authorize the DFEH to receive, investigate, conciliate, mediate, and prosecute complaints alleging practices unlawful under discriminatory wage rate provisions currently being enforced by the DLSE. The bill would require the DFEH, in coordination with the DLSE, to adopt procedures to ensure that only one of the departments investigates or takes enforcement action in response to the same operative set of facts. Passed Senate Labor, Public Employment and Retirement Committee on May 14. Referred to Senate Appropriations Committee.
SB 1102 (Monning) – as amended May 5, requires an employer to include in their written notice to all employees, specified information required in the event of a federal or state declared disaster or emergency. The bill would prohibit an employer from retaliating against an employee for raising questions about the declarations’ requirements or recommendations. This bill would additionally require an employer to provide an H-2A employee, as described, on the day the employee begins work in the state, or begins work for another employer after being transferred, a written notice in Spanish and, if requested by the employee, in English, containing specified information relative to an H-2A employee’s rights pursuant to federal and state law. The bill would also require the commissioner to create a template, as specified, by either creating a new template or combining these requirements with an existing notification template for purposes of carrying out this requirement, including a separate section of the template listing key legal rights of H-2A workers under California Law, and to make the template available to employers in the manner as determined by the commissioner by January 2, 2021. Passed Senate Labor, Public Employment and Retirement Committee on May 14. Referred to Senate Appropriations Committee.
AB 1850 (Gonzalez)– as amended May 12, creates another series of exemptions from the “ABC Test” for employment classification purposes. These new amendments include professional services of a person who provides underwriting inspections, premium audits, risk management or loss control work for the insurance industry. In addition, the bill amends the so-called “business-to-business” exemption in Labor Code § 2750.3(e), as recodified as subdivision (b)(1) in AB 1850. The bill now states, “When two bona fide businesses are contracting with one another under the condition in paragraph (1), the determination of whether an individual working for a business service provider is an employee or independent contractor of the business service provider is governed by paragraph (1) of subdivision (a).” Passed Labor & Employment 7-0 now to Appropriations.
AB 1947 (Kalra) - extends the period of time within which people may file complaints with the Division of Labor Standards Enforcement (DLSE) to within one year after the occurrence of the violations. The bill also amends Labor Code § 1102.5 to allow for the award of attorney’s fees to a successful plaintiff alleging violation of California’s whistleblower law. This latter amendment appears to be codifying the holding in Hawkins v. City of Los Angeles (2019), 40 Cal.App.5th 384. . Passed Labor & Employment 5-2 now to Appropriations.
AB 2043 (Rivas) – requires the Occupational Safety and Health Standards Board, by February 1, 2021, to adopt occupational safety and health standards for novel coronavirus (COVID-19) infection prevention for agricultural employers and employees. Passed Labor & Employment 6-1 now to Appropriations.
AB 2092 (Rodriguez)– requires emergency ambulance providers to inform each emergency ambulance employee, upon initial employment and subsequently on an annual basis, of the employee’s right to request safety devices and safeguards, as defined, at the beginning of the employee’s shift. Passed Labor & Employment 5-1-1 now to Appropriations.
AB 2231 (Kalra)– amends the law regarding calculation of prevailing wages for public works projects. Passed Labor & Employment 6-0-1 now to Appropriations.
AB 2257 (Gonzalez) – addresses specific AB 5/Dynamex issues regarding exceptions for various freelancer/artist/musician independent contractors. This language is also in AB 1850. Assemblymember Gonzalez has indicated she will add an urgency provision to this bill. Passed Labor & Employment 7-0 now to Appropriations.
AB 2479 (Gipson)– extends the exemption from rest period requirements for specified safety sensitive positions at petroleum facilities to January 1, 2026. Passed Labor & Employment 7-0 now to Appropriations.
AB 2537 (Rodriguez)– requires hospital employers to furnish and ensure that employees use the personal protective equipment (PPE) supplied to them. Passed Labor & Employment 5-1-1 now to Appropriations.
AB 2658 (Burke) – makes it a crime for a person, after receiving notice to evacuate or leave, to willfully and knowingly direct an employee to remain in, or enter, an area closed under prescribed provisions of law due to a menace to the public health or safety. Passed Labor & Employment 7-0 now to Appropriations.
AB 2992 (Weber)– prohibits an employer from discharging, or discriminating or retaliating against, an employee who is a victim of crime or abuse for taking time off from work to obtain or attempt to obtain relief. Passed Labor & Employment 7-0 now to Appropriations.
AB 2999 (Low)– enacts the Bereavement Leave Act of 2020. The bill would require an employer to grant an employee up to 10 business days of unpaid bereavement leave upon the death of a spouse, child, parent, sibling, grandparent, grandchild, or domestic partner, in accordance with certain procedures, and subject to certain exclusions. Passed Labor & Employment 5-1-1 now to Appropriations.
AB 3053 (Daly) – requires the Labor Commissioner to post the report to the Legislature regarding unpaid wages on the Labor Commissioner’s internet website. The bill would also require the Labor Commissioner to create an online portal on their internet website that would allow wage claimants to file unpaid wage claims, track those claims, and submit requested documents regarding those claims. Passed Labor & Employment 7-0 now to Appropriations.
AB 3056 (Gonzalez)– establishes various wage and hour related protections for warehouse and distribution center employees. Passed Labor & Employment 6-1 now to Appropriations.
AB 3075 (Gonzalez)– requires that articles of incorporation include an attestation that the filer is not affiliated, as specified, with an employer that has an outstanding judgment issued by the Division of Labor Standards Enforcement or a court of law for violation of any wage order or provision of the Labor Code. The bill also provides that nothing in the Labor Code regarding the Labor Commissioner’s enforcement powers precludes a local jurisdiction from enforcing local labor standards that are at least as stringent as the state standards. Passed Banking & Finance 9-3 now to Appropriations.
AB 3216 (Kalra) - makes a number of substantial changes to various laws relating to family leave. The amendments include providing for paid emergency leave, as defined, if a state of emergency is declared by the Governor pursuant to the California Emergency Services Act. Passed Labor & Employment 5-1-1 now to Appropriations.
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