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2021 Employment Laws People Person Inc.

2021 Employment Laws

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With every new year comes new employment laws. State legislatures and local jurisdictions signed laws in 2020 that took effect on January 1, 2021. The range of employment laws covers everything from pay to harassment to, of course, the hot topic everyone is wanting to know about, the current Coronavirus pandemic.

For your convenience, we have compiled a list of some of the new laws applicable to the workplace, and have summarized them below by state.

Nationwide

Across the US, twenty-one different states are increasing their minimum wage effective January 1, 2021, and several states are set to increase mid-year as well.  Local jurisdictions such as Denver, Seattle, New York City, and Albuquerque are also increasing their city-specific minimum wages at the beginning of the year, with cities like Los Angeles and Santa Monica to follow with mid-year increases in July.

Employers should be sure to check with their state or local jurisdiction and adjust their payroll as necessary. Keep in mind that increasing the state minimum wage may also affect the salary threshold for exempt employees. For example, in California, exempt employees must be paid 2x the state minimum wage.

California

Leaves of Absence

SB-1383: EXPANSION OF THE CALIFORNIA FAMILY RIGHTS ACT

The California Family Rights Act (CFRA), which provides family care and medical leave, had previously applied to businesses that employed 50 or more employees within 75 miles of a work location. The expanded CFRA now applies to all California employers of 5 or more without the previous distance limitation. The CFRA has also expanded the definition of “family members” and removed the age limit for qualifying children.

AB-2017: KIN CARE LEAVE

Currently, California law allows employees to take up to half of their sick time to care for a sick family member. This new law clarifies that solely employees have the right to designate any sick time taken to care for a family member as kin care, not the employers.

AB-2399: EXPANSION OF PAID FAMILY LEAVE FOR MILITARY NEEDS

This law expands the definition of “military member” to include a child, spouse, domestic partner, or parent of the employee, for the purposes of care and for time off to be with a family member being deployed for or on leave from active duty.

AB-2992: EXPANDED PROTECTIONS FOR CRIME VICTIMS

This law expands the definition of a crime to include public offenses that caused physical or mental injury, even if no person was arrested for the crime. Additionally, time off work due to one of these situations can include counseling and mental health services or safety/prevention planning related to the offense. It further expands the prohibition of discrimination of victims of crime or abuse beyond existing time off for court proceedings.

Harrassment & Diversity

SB-778: SEXUAL HARASSMENT TRAINING

Ongoing sexual harassment training is now required for all employers of 5 or more. For regular employees, training must be completed within 6 months of hire, or within 6 months of promotion to a supervisory position. Temporary and seasonal employees must be trained within 30 days or 100 hours worked, whichever comes first. Non-supervisors will take a 1-hour training, and supervisors will take a 2-hour training. All training is valid for two (2) years.

AB-979: DIVERSITY OF BOARD MEMBERS

A Board of Directors for a publicly traded company headquartered in or with principal executive offices in California must have at least 1 Director from an underrepresented community by the end of 2021. By the end of 2022, that number is increased to 2 or 3 depending on the size of the board. The law lists out those underrepresented communities a person may self-identify as in order to qualify.

Reporting

AB-685: COVID-19 REPORTING

This new law outlines steps that need to be taken once an employer receives a report of a confirmed or possible exposure to COVID-19. It includes a notice to be given within one business day to eligible employees regarding the potential exposure and cleaning plans. It also requires reporting to local health agencies when 3 or more cases are present in a 14-day period. This law goes even further by establishing Cal/OSHA’s authority to shut down the operations of a business that it deems actively hazardous to employees. Many of the provisions of this new law are covered in the 2020 Cal/OSHA Emergency Standard that is already in effect. The law expires January 1, 2023.

AB-1963: MANDATED REPORTER & TRAINING EXPANSION

For employers of 5 or more who employ minors, human resources employees and frontline supervisors who supervise minors are now mandated reporters. Frontline supervisors would only be mandated to report sexual abuse whereas human resource employees would be mandated to report any type of abuse or neglect. Employers will need to provide their employees who are mandated reporters with training on identification and reporting of child abuse and neglect.

SB-973: PAY DATA REPORTING

All companies that are required to file an annual Employer Information Report under federal law (EEO-1) will also need to submit a pay data report to the Department of Fair Employment and Housing (DFEH) that contains specified wage information. The report must be submitted by March 31, 2021, and annually thereafter.

Legal Matters

AB-2143: NO-REHIRE PROVISIONS EXCEPTIONS

This law allows the inclusion of no-rehire provisions in settlement agreements under certain circumstances, i.e., if the employee who filed the complaint was found to have been engaged in sexual harassment or criminal activity by the employer prior to the employee filing the complaint.

AB-1947: STATUTE OF LIMITATIONS FOR LABOR COMMISSIONER COMPLAINTS

The law extends the current statute of limitations for discrimination and retaliation complaints filed for any law under the jurisdiction of the Labor Commissioner from 6 months to 1 year after a violation. The new law also allows for the courts to award reasonable attorney’s fees to prevailing employees.

Healthcare Industry

AB-2644: SKILLED NURSING FACILITIES STAFFING AND REPORTING

This law requires every skilled nursing facility to have a dedicated, full-time Infection Prevention (IP) staff member position filled by an RN or LVN. The law also requires skilled nursing facilities to annually train their healthcare personnel in infection prevention control and report communicable disease data in the event of a declared communicable disease emergency.

AB-2537: PPE SUPPLY LEVELS AND TRAINING MANDATES IN ACUTE CARE FACILITIES

Taking effect April 1, 2021, the law requires acute care hospitals provide PPE to all employees who provide direct patient care and makes employers responsible for ensuring the use of proper PPE by all employees. The law also sets a minimum on-hand supply threshold of a three-month PPE supply and gives Cal/OSHA the authority to request proof of stockpile inventory with potential civil penalties of up to $25,000.

Nevada

SB-119: SAFETY TRAINING FOR TRADE SHOWS AND CONVENTIONS

This law requires health and safety training for workers and supervisors performing certain work at sites where exhibitions, conventions, or trade shows occur. Workers must obtain certification through an extended OSHA safety course, with certifications being valid for five (5) years, at which time the certification must be renewed.

New York

PAID LEAVE EXPANSIONS:

As of September 30, 2020, New York State requires that employers provide sick leave hours for their employees, which became available for employee use on January 1, 2021. Depending on employer size and income, the sick leave can be either paid or unpaid. Sick leave may be front-loaded or accrued at a rate of 1 hour for every 30 hours worked, with any unused sick leave carried over to the following year.

In order to comply with the state sick leave law, New York City amended its Earned Safe and Sick Time Act (ESSTA). Along with other requirements, the new law eliminates the 120-day employee waiting period and the 80 working hours requirement to use the sick leave.

New York Paid Family Leave (NYPFL) is increasing job-protected, paid time off from 10 weeks to 12 weeks, and employees on NYPFL will now receive 67% of their average weekly wage instead of the current 60%.

TIPPED EMPLOYEES:

New York State has eliminated the tip credit for tipped employees covered under the New York State DOL for Miscellaneous Industries and Occupations (which does not include restaurant and other hospitality workers). Those workers must now be paid the full state minimum wage without consideration of the tips they receive.

Portland, Oregon

The City of Portland enacted an ordinance banning the use of facial recognition technologies used by government and private entities, effective January 1, 2021.

We’re Here to Help!

It can be tricky to navigate all the new employment laws implemented each new year. This article includes a brief overview of 2021 laws, but employers should be sure to review each new law applicable to their business and workers in detail to ensure compliance. If you have any questions or need assistance with HR compliance, don’t hesitate to contact your friendly People Person team!

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covid-19-employer-guidance

COVID-19: GUIDANCE FOR EMPLOYERS

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As we all know, the COVID-19 (Coronavirus) pandemic has had a significant impact on employers and employees all over the world. Businesses have been forced to close their doors to comply with stay-at-home orders, and as a result, employees have been impacted by reduced hours, temporary furloughs, and even layoffs. 

Industries that are part of the essential infrastructure guidance issued by the Department of Homeland Security, are permitted to remain open, while taking precautions to keep their employees and their customers safe and healthy. Essential businesses are still required to enforce social distancing and take other steps to prevent transmission of COVID-19.

Still, with more people staying home and some consumers having to cut costs, your business may be slower than usual. This leads to some of us having to make difficult personnel decisions. So, what do you need to know as you are faced with these decisions?

If your business has been financially impacted by the current pandemic, and you are considering a reduction in force, you essentially have three options: reduced schedule, furlough, or layoff.

A reduced schedule consists of reducing an employee’s work hours, and only paying them for hours worked. This is easier for non-exempt/hourly employees, but there are federal and state laws which dictate minimum salary requirements for exempt employees. Be sure to check your state’s requirements before making any changes to an exempt employee’s status. Employees may be able to file for unemployment benefits due to a reduced work schedule.

A furlough is a temporary, usually unpaid, leave of absence. Furloughs are generally used as a cost-saving measure, with the intention of having the employee return to work after a designated period of time. During a furlough, the employee retains their seniority, their health insurance, and other benefits. Note that according to your state’s regulations, you may be required to pay out an employee’s earned wages and accrued vacation time on their last day worked, even if the furlough is temporary. Employees may also be eligible to file for unemployment benefits during the furlough period.

A layoff is generally considered to be a reduction in force. It should be tied to a restructure or position elimination, and not related to an employee’s performance. Employers should be careful not to use a “layoff” as a reason for terminating a poor performing employee. If needed, the business must be able to show a viable reason for the position elimination, and the layoff must be handled lawfully in order to prevent any future claims. Layoffs are treated as terminations under the law, and as such, all final pay requirements apply. A laid-off employee is generally eligible for unemployment benefits.

If you own or run a business with 100 or more employees and are planning to lay off more than half the workforce, be sure to check your requirements under the federal Worker Adjustment and Retraining Notification (WARN) Act. Even if your business does not qualify under the requirements for the federal WARN Act, several states have their own “mini-WARN” laws that may apply. Be sure to check your state’s requirements.

Lastly, it’s important you familiarize yourself with the ‘Families First Coronavirus Response Act‘ which goes into effect on April 1, 2020, and applies to businesses with less than 500 employees. This new law offers paid sick leave benefits (up to 80 hours) and paid emergency leave benefits (up to 12 weeks) to employees affected by COVID-19, including but not limited to self-quarantine orders and school closures. You are also required to post a notice (email is fine for those employees who are telecommuting). The notice must be posted and distributed prior to April 1st.

As the regulations are changing and updating rapidly, it’s important to check federal and state guidelines before making any important personnel decisions. The Department of Labor offers an FAQ page which is updated regularly.

If you need assistance implementing any employee related changes and/or have questions about the laws and how to maintain compliance, feel free to contact your HR Business Partner at People Person, Inc. We are here to assist small and mid-sized businesses through this pandemic and beyond.

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California’s AB 5 – What Does It Mean For Your Business

California’s AB 5 – What Does It Mean For Your Business?

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You’ve likely heard about AB 5, one of the newest California employment laws to take effect this month. As it may have wide-reaching implications for your business, it’s important to understand what it all means. 

What is AB 5?

AB 5 amends the California labor code of workers which businesses utilize as independent contractors. Signed into law September 18, 2019 and effective January 1, 2020, the new law requires businesses that use independent contractors to reclassify them as regular employees, or restrict their use.

AB 5 is intended to push employers to provide ‘gig’ workers with the same benefits and protections that regular employees enjoy, including provisions of the California unemployment code, wage and hour code laws, and other benefits. The fallout of the new law, for employers and for workers, may be that many lose their jobs, rather than be put on the payroll.

Will your business be impacted by AB 5?

A majority of California workers and businesses who are part of the gig economy may be affected by the new law, but organizations in other parts of the country that leverage the talents of California independent contractors will also feel its impact. An estimated 10% of US workers are part of the gig economy: over 1.5 million are Californians. Under the legislation, any worker previously categorized as an independent contractor will need to be hired or released, unless they are specifically exempted under the law. 

Initial response from ride-share giant Uber and food delivery Postmates has been a lawsuit filed in US District Court alleging the law unconstitutional. Until that decision has been made, however, many classifications of workers are covered under the law, while others, some with significant lobbying power, are excluded: 

Physicians, dentists, podiatrists, psychologists, veterinarians are exempt from the law, but other categories of health providers including occupational and speech therapists, optometrists, nurse practitioners, physician assistants, marriage and family therapists and others are impacted by the law. Transcriptionists are already seeing clients refusing to work with California contractors because of AB 5. 

Real estate and insurance agents are exempt, along with lawyers and investment advisors. However, freelance journalists and photographers are limited to 35 submissions per year under the new law. The fallout for freelance writers has already begun. Online freelancer platform ‘Scripted’ suspended accounts for California writers. ‘Vox’ let go of 200 freelance writers in advance of AB 5’s effective date. 

While truck drivers were initially covered under AB 5, a Los Angeles Superior Court judge has ruled the legislation unlawful because it contradicts Federal law that covers owner-operators. 

Several other categories of workers and industries are exempt from compliance, leaving the remaining gig workforce not specifically listed covered under its terms. For businesses owned and operated in California, along with workers who reside in the state, AB 5 remains in force unless legal challenges overturn it. If your organization uses independent contractors for web administration or tech support, or other categories of work, it might be wise to review the law and its impact on your business and contractors.

Legal basis for the new law

AB 5 leverages the ruling of the 2018 California Superior Court decision in Dynamex Operations West, Inc. to classify workers versus independent contractors. Under existing California law, a three-part test is used to determine if a worker can be legally classified as an independent contractor. This ‘ABC test’ requires they: 

  1. are free from the control and direction of the hiring company;
    1. the worker must be able to determine when, where and how assigned work is performed
  2. perform work outside the usual course of the hiring entity’s business
    1. contractors don’t perform the necessary and daily functions of the organization; and
  3. are customarily engaged in that trade, occupation, or business
    1. the contractor has performed the work previously and/or has other clients for which they have or perform the same work.

The implications of AB 5 

For organizations outside California, the bill may not seem to have implications. But if any Californians are part of a company’s pool of workers, AB 5 will apply. The legislation covers workers and employers. While there are many exemptions and nuances to the law, businesses will need to assure they are in compliance unless and until any pending lawsuits make significant changes to the legislation.  

If your contractors don’t pass all three requirements of the ABC test, you’ll have three choices: put them on the payroll as a regular employee; release them from your contract, or, under some categories (like writers), limit the amount of work they submit on an annual basis. 

People Person will continue to provide you with updates to AB 5 as they arise. In the meantime, we strongly recommend that you engage your HR team and employment attorney to ensure that your business is in compliance.