2021 Labor Law Updates
Provided by Cal Chamber
As the calendar flips to 2021, it’s a good time to make sure you’re up to date with the new laws, regulations, court cases and agency actions — many of which will affect California employers’ day-to-day operations and policies. These updates are organized by topic below to help you understand your responsibilities and learn how they will impact your business. They also have links to their respective Law Library pages to give you more details.
Also, check the Local Ordinances and Required Posters and Pamphlets pages to make sure you are compliant.
Recruiting and Hiring
• New Fair Employment and Housing Act (FEHA) regulations substantially limit the language that can be used in recruiting and advertising, prohibiting anything that a “reasonable person would interpret as deterring or limiting employment of people age 40 and over” unless age is a bona fide occupational qualification for the position. See Advertising the Job.
• Revised FEHA regulations clarify when pre-employment inquiries discriminate on grounds of religious creed, age or medical condition. See Application for Employment.
• A recent California court ruling highlights the importance of employers using well-crafted acknowledgments when distributing new or revised employee handbooks, or even when updating important policies. See New Employee Orientation.
• Temporary and seasonal employees are now required to take sexual harassment prevention training within 30 days of hire or 100 hours worked, whichever is earlier. See Training New Hires.
• The minimum salary requirement for the executive, administrative and professional exemptions increased for 2021. See Determining Exempt or Nonexempt Employee Status.
• The minimum wage rates for the licensed physicians or surgeons exemption increased for 2021. See Professional Exemption.
• Beginning September 9, 2020, employees providing instruction for a course or laboratory at a private, non-profit college or university may be classified as exempt under the professional exemption if they meet certain criteria. See Professional Exemption..
• The minimum wage rates for the computer professional exemption increased for 2021. See Computer Professional Exemption.
• The minimum earnings requirement for the inside salesperson exemption changed due to the higher 2021 state minimum wage. See Commissioned Inside Sales Employee Exemption.
• Legal challenges from the U.S. Department of Justice have put key provisions of the California’s Immigrant Worker Protection Act (IWPA) on hold. See Worksite Immigration Enforcement and Protection.
• In 2019, a preliminary injunction blocked provisions of the IWPA that fine employers for voluntarily allowing U.S. Immigration and Customs Enforcement (ICE) to enter nonpublic work areas or for voluntarily allowing ICE access to employee records. In June 2020, the United States Supreme Court declined to hear an appeal from the state of California. See Worksite Immigration Enforcement and Protection.
• Employers must continue to comply with the IWPA’s pre-inspection and post-inspection requirements. See Worksite Immigration Enforcement and Protection.
• In a recent court case, a nurse who previously sued her staffing agency for wage and hour issues and entered into a settlement agreement with that agency could subsequently sue the hospital where she was placed for the same claims. See Non-Direct Hire.
• On September 4, 2020, urgency legislation went into effect, adding to and revising parts of AB 5, the 2020 law that significantly altered the way California law distinguishes between employees and independent contractors. See Independent Contractor.
• California voters approved Proposition 22, a ballot measure that allows certain app-based rideshare and delivery drivers to be classified as independent contractors. See Independent Contractor.
• Effective January 1, 2021, certain human resources professional and supervisors have been added to the list of mandated reporters under the California Child Abuse and Neglect Reporting Law. See Child Labor Law Coverage.
• A new law makes it easier for minors to obtain work permits during COVID-19-related school closures. See Obtaining and Work Permits for a Minor.
• A parent or legal guardian must accompany the minor for harassment prevention training and must certify to the Labor Commissioner that the training has been completed. See Work Permits for a Minor.
• A recent U.S. Ninth Circuit Court of Appeals case clarified that an employer doesn’t violate the Fair Credit Reporting Act (FCRA) by providing a disclosure document at the same time as other hiring-related materials, as long as the disclosure itself is “standalone.” See Obtaining Investigative Consumer Report.
• The Department of Fair Employment and Housing (DFEH) revised its criminal history regulations to clarify and implement the “ban-the-box” law and integrate it with the existing criminal history usage rules in the Labor Code. See Restrictions on Obtaining Criminal History.
• A recent case demonstrates why employers should investigate before making any employment decisions if there is a discrepancy between background reports. See Restrictions on Obtaining Criminal History.
• Contribution limits for Health Savings Accounts (HSA) for those who have high-deductible health plans (HDHP) are set for 2021. See Health Savings Account.
• For 2021, if you have self-only HDHP coverage, you can contribute up to $3,600. If you have family HDHP coverage, you can contribute up to $7,200. See Health Savings Account.
• Deadlines for participating in the CalSavers program are now set. See Private Retirement Savings Plan.
• Beginning January 1, 2021, the PFL wage replacement program is expanded to include payments for time off for “qualifying exigencies” related to a family member’s military service. See Paid Family Leave Defined.
• Beginning July 1, 2020, PFL benefits were extended to a maximum of eight weeks in a 12-month period. See PFL Benefit Payments.
Pay & Scheduling
• A new law makes a successor employer liable for its predecessor’s unpaid wage judgments and establishes specific criteria to establish successorship and allows local jurisdictions to enforce state labor standards requirements regarding payment of wages. See Wage and Hour Enforcement and Penalties.
• The California Supreme Court ruled that employees that settle and dismiss individual Labor Code violation claims against employers can still retain standing to pursue a claim under the Private Attorneys General Act (PAGA). See Wage and Hour Enforcement and Penalties.
• California’s minimum wage is now $14 per hour for employers with 26 or more employees and $13 per hour for employers with 25 or fewer employees. See Minimum Wage.
• A recent court case upheld a jury’s decision that a large retailer is responsible for paying wages to their long-haul truckers for “non-working” layover time because the truckers were still subject to retailer’s control during that time. See On-Call and Standby Pay.
• The Social Security wage base limit for 2021 increased to $142,800. See Standard Deductions: Taxes.
• The meal and lodging credits employers may take against minimum wage increased when the new minimum wage became effective on January 1, 2021. See Meals and Lodging.
• The California Supreme Court concluded that, for California’s timing of pay and wage statement requirements, the Labor Code applies to any employees who either perform the majority of their work in California or don’t perform the majority of their work in any particular state but perform some work in California and their base of operations is in California. See Form of Wage Payment.
• The minimum wage rate on certain federal contracts increased from $10.80 per hour to $10.95 per hour. See Wage and Hour Requirements for Specific Industries.
• The U.S. Department of Labor (DOL) issued an opinion letter that discussed whether an employee is entitled to travel time pay when the employee travels to remote job sites in their own vehicle under the Fair Labor Standards Act. See Travel Time.
• An appellate court held that when an employer requires an employee to carry so much cargo that the employee’s ability to use their vehicle freely is restricted, the commute time must be considered hours worked. See Travel Time.
• The California Supreme Court held that time spent undergoing mandatory security screening counts as “hours worked” that must be compensated under California law because employees are subject to the control of employers during such time. See Security Screening.
• The DOL issued an opinion letter that explains when voluntary, employee-initiated training may be compensable work time. See Compensability of Education and Training Time.
• A new law effective January 1, 2021, allows private security guards who are registered under the Private Security Services Act to remain on the premises during rest periods and to remain on call during the rest period. See Meal and Rest Break Exceptions.
• Agricultural employers under Wage Order 14 with 26 or more employees are subject to a series of phased-in overtime changes. See Overtime Exceptions for Specific Industries.
Leaves of Absence
• Beginning January 1, 2021, California Family Rights Act (CFRA) coverage was expanded to cover private employers with five or more employees. See Family and Medical Leave Eligibility Requirements.
• Under the newly expanded CFRA, the law defines the term “parent-in-law” as the parent of a spouse or domestic partner, but it does not include the phrase in its definition of family care and medical leave, which raises some uncertainty with employers. See FMLA and CFRA Qualifying Reasons.
• The CFRA now covers leave to take care of a grandparent, grandchild and sibling. FMLA and CFRA Qualifying Reasons.
• The CFRA was expanded to largely parallel the FMLA’s qualifying exigency leave. See FMLA and CFRA Qualifying Reasons.
• California’s Paid Family Leave (PFL) wage replacement program will be expanded to include benefits to cover time off for qualifying exigencies. See FMLA and CFRA Qualifying Reasons.
• The CFRA no longer allows employers to refuse to reinstate key employees. See Return to Work After Family and Medical Leave.
• The CFRA’s expansive family member coverage means that eligible employees would be entitled to up to 12 weeks of CFRA-only leave to care for registered domestic partners, siblings, grandchildren or grandparents. See Leave Interaction.
• The CFRA no longer allows employers to limit the total amount of baby bonding time to 12 weeks for parents that work for the same employer. See Leave Interaction.
• As a way to potentially mitigate the burden the CFRA expansion will have on small businesses, the DFEH is implementing a small employer family leave mediation pilot program for employers with between five and 19 employees. See Penalties for Violating Family and Medical Leave Law.
• Cal/OSHA regulations specify that, beginning July 1, 2020, employers must provide employees with access to their written Injury and Illness Prevention Program (IIPP) upon request. See Injury and Illness Prevention Program (IIPP).
• New regulations require employers develop and implement a written COVID-19 Prevention Program. See Injury and Illness Prevention Program (IIPP).
• Cal/OSHA has issued substantial COVID-19 guidance material for employers, including how to address COVID-19 in their IIPP. See IIPP and COVID-19.
• A California wildfire smoke regulation has been extended and will remain in effect through January 20, 2021. See Emergency Wildfire Smoke Regulation.
• The governor signed two bills related to personal protective equipment (PPE). See Providing Personal Protective Equipment.
• A new law requires the Cal/OSHA to disseminate to agricultural employers and employees information on best practices for preventing COVID-19 infections. See Other Standards to Consider.
• As COVID-19 infections began to spread in 2020, governments began using contact tracing and isolation/quarantine as a primary tool of infection mitigation and prevention. See Recording Work-Related Injury and Illness.
• On November 19, 2020, the Occupational Safety and Health Standards Board voted to adopt a comprehensive and complex COVID-19 emergency regulation addressing a variety of issues related to COVID-19 in the workplace. See Cal/OSHA Emergency COVID-19 Regulation.
• California Governor Gavin Newsom’s Executive Order that required all Californians to wear face coverings while in public helped fuel a cultural/political divide and resulted in violence on the part of patrons who refuse to wear face coverings. See Understanding the Changing Face of Workplace Violence.
• Employers must make sure to include COVID-19-related workplace violence in their COVID-19 response plan. See Understanding the Changing Face of Workplace Violence.
• Employers should include COVID-19-related items in the information campaign to remind employees of the company’s workplace violence prevention policy. See Creating a Violence Prevention Policy.
• Independent contractors are not considered to be employees covered by workers’ compensation, and a law passed in 2020 adds additional permanent exemptions to the independent contractor ABC test for certain occupations. See Independent Contractor and Workers’ Compensation.
• On September 17, 2020, an urgency bill that defines “injury” for an employee to include illness or death resulting from COVID-19 under specified circumstances took effect. See COVID-19 and Workplace Injuries.
• Beginning July 1, 2021, every Medical Provider Network must post on its website the names of all participating medical providers and ancillary service providers. See Workers’ Compensation Poster and MPN Posting.
• Regulations effective January 1, 2021, require employers to comply with special notice and recording requirements with respect to COVID-19. See COVID-19 and Workplace Injuries.
• A bill effective January 1, 2021, establishes new exemptions from the California Consumer Privacy Act (CCPA) with regard to certain types of medical information. See Privacy of Workers’ Compensation Medical Record.
• Temporary disability payments increased for 2021. See Benefits During Workers’ Compensation.
• New legislation extends an exemption under the California Consumer Privacy Act (CCPA) that exempts certain employee data until January 1, 2023. See California Consumer Privacy Act.
• In a landmark decision, the United States Supreme Court recently ruled that any employment decision based, at least in part, on a person’s sexual orientation or gender identity constitutes unlawful discrimination under Title VII. See Gender, Sex, and Gender Identity and Expression.
• A recent U.S. Supreme Court decision rejected the Ninth Circuit’s narrow application of religious exception in two cases involving the ADA’s “ministerial exception.” See Religion.
• The Equal Employment Opportunity Commission (EEOC) announced that it would delay EEO-1 Component 1 data collection until 2021 due to the COVID-19 pandemic. See EEO-1 Reporting Requirements.
• A U.S. District Court order officially ended the collection of EEO-1 Component 2 data for 2017 and 2018 because the amount collected thus far satisfies the government’s data collection obligations. See EEO-1 Reporting Requirements.
• A new California law requires a private employer with 100 or more employees to submit a pay data report to the DFEH that contains information about their employees’ race, ethnicity and gender in various job categories on or before March 31, 2021. See EEO-1 Reporting Requirements.
Disabilities in the Workplace
• As COVID-19 changes the employment law landscape, government agencies continue to provide guidance on many commonplace reasonable accommodation compliance issues that are now causing confusion for employers. See Reasonable Accommodations During the COVID-19 Pandemic.
• In 2020, the National Labor Relations Board (the Board) issued a final rule on the standard for determining joint-employer status under the National Labor Relations Act (NLRA). See Covered Employers.
• In 2020, the Board adopted a “substantial religious character” test. See Jurisdictional Standards.
• The Board is currently engaged in proposed rulemaking to exclude from coverage as “employees” students who perform services for financial compensation in connection with their studies at private colleges and universities. See Excluded Employees.
• In a 2020 decision, the Board reversed an administrative law judge’s finding that the employer violated section 8(a)(5) by not producing information responsive to the union’s information requests. See Unfair Labor Practices of Employers.
• In 2020, the Board ruled that abusive conduct, such as profane outbursts and offensive statements of a racial or sexual nature in the workplace, will be evaluated under one standard. See Protected Concerted Activity in Union and Non-Union Workplaces.
• In 2020, the Board updated the types of cell phone rules that are generally lawful and unlawful to maintain. See Guidance from the NLRB General Counsel.
• In a Division of Advice memo released in 2020, the Board explained how a lawful civility rule could be applied in an unlawful manner against protected, concerted activity. See Guidance from the NLRB General Counsel.
• In a 2020 case, the Board held that an employee handbook provision prohibiting the disclosure of salary or wage information was unlawful. See Overly Broad Confidentiality Provisions.
• In a recent case, the Board limited its application in social media cases to “abusive conduct,” and, in other cases, has upheld employer restrictions on employee use of social media. See Social Media Use and Unfair Labor Practice Charges.
• In December 2019, the Board announced significant revisions to the expedited election rules. See Representation and Election Process Overview.
• In a 2020 decision, the Board concluded that pre-discipline bargaining before a first contract is not required when an employer exercises discretion within the framework of an established disciplinary policy. See Duty to Bargain in Good Faith.
If you have any questions regarding this information or would like assistance with handbook updates or incorporation of these changes into your practices,
please contact CA HR Services at 858-228-5535 or Info@CAHRservices.com