January 17, 2022

Volume XII, Number 17


January 15, 2022

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Take That, Employers! California is Done (for Now) with this Year’s Legislative Thrashing

Here’s a comprehensive list of the new employment-related statutes enacted and signed into law in the Golden State (effective Jan. 1, 2020 unless otherwise specified):

  • AB 5 (Gonzalez, D-San Diego) makes it extremely difficult for most California employers to hire an independent contractor and would convert such workers into “employees” in the eyes of the law. Read more here.

  • AB 170 (Gonzalez, D-San Diego) exempts newspaper distributers and newspaper carriers until January 1, 2021 from the Dynamex provisions in AB 5.

  • AB 9 (Reyes, D-Grand Terrace) extends the statute of limitations period for employees to file claims of discrimination, harassment and/or retaliation with the California Department of Fair Employment and Housing (“DFEH”) from one to three years.  Employees would then have one more year (after their receipt of a right-to-sue letter from the DFEH) to file a civil action in court.  In short, employers could find themselves defending against claims for workplace incidents that occurred as long ago as four years in the past.

  • AB 25 (Chau, D-Arcadia) exempts employers from compliance with most of the requirements of the California Consumer Privacy Act until January 1, 2021. Read more about which provisions employers must comply with even before that date here.

  • hereAB 51 (Gonzalez, D-San Diego) prohibits “any person” from requiring an applicant for employment or employee to “consent to the waiver of any right, forum, or procedure for a violation of the California Fair Employment and Housing Act or [the Labor] code,” which purports to make illegal workplace arbitration agreements that are entered into, modified, or extended on or after January 1, 2020.  Although the statute expressly states that the law does not intend to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act (the “FAA”), chances are that this law will be challenged almost immediately based upon FAA preemption, which is precisely what occurred after a similar law was recently enacted in New York.  See Latif v. Morgan Stanley & Co.

  • AB 241 and AB 242 (Kamlager-Dove, D-Los Angeles) requires physicians, nurses, surgeons, lawyers, and court staff to receive implicit bias training.

  • AB 267 (Chu, D-San Jose) expands certification requirements for infants working in the entertainment industry to cover any type of employment in the entertainment industry rather than being limited to infants working “on any motion picture set or location.”

  • AB 673 (Carrillo, D-Los Angeles) authorizes an employee to bring, in a hearing held to recover unpaid wages, an action to recover specified statutory penalties.  The employee can recover the penalties under this provision or under a specified provision of PAGA, but not both for the same violation.

  • AB 800 (Chu, D-San Jose) permits a party to a civil action who uses the address confidentiality program to use a pseudonym and redact any other identifying characteristics from documents filed in court.

  • AB 1510 (Reyes, D-Grand Terrace) revives claims of sexual assault or other inappropriate contact that occurred at a student health center between January 1, 1988 and January 1, 2017 that would otherwise be barred by the statute of limitations.  The damages claimed must be more than $250,000, and an attorney must have a good-faith belief that the claim value is more than $250,000. The bill took effect immediately.

  • AB 1554 (Gonzalez, D-San Diego) requires employers to notify an employee (in at least two different prescribed manners) who participates in a flexible spending account of any deadline to withdraw funds before the end of the plan year.

  • AB 1805 (Committee on Labor and Employment) expands the Division of Occupational Safety and Health’s authority by removing the 24-hour minimum time requirement for an illness or injury to qualify as “serious” and thus giving the Division more opportunity to investigate employment accidents and exposures.  The bill establishes that a serious violation exists when the division determines there is a “realistic possibility that death or serious physical harm in the future could result from the actual hazard created by the exposure.”

  • AB 1820 (Committee on Judiciary) authorizes the Department of Fair Employment and Housing the authority to bring civil actions for violations of specified federal civil rights and antidiscrimination laws (e.g., Title VII, ADA, FEHA).

  • SB 41 (Hertzberg, D-Van Nuys) prohibits, in personal injury or wrongful death lawsuit, the reduction in the calculation of damages based upon race, ethnicity, or gender.

  • SB 142 (Wiener, D-San Francisco) expands California’s lactation accommodation requirements, including requirements that the lactation room or location be “safe, clean, and free of hazardous materials” and:

    • Contain a surface to place a breast pump and personal items

    • Contain a place to sit

    • Provides access to electricity or alternative devices, including, but not limited to, extension cords or charging stations, needed to operate an electric or battery-powered breast pump

    • Further, the employer shall provide access to a sink with running water and a refrigerator (or cooling device or cooler) in close proximity to the employee’s workspace

  • SB 188 (Mitchell, D-Los Angeles) prohibits employers from discriminating based upon hairstyle.  Read more here.

  • SB 271 (Wiener, D-San Francisco) regulates what qualifies as “employment” for motion picture production workers in regard to where the services are performed for purposes of unemployment compensation.  If the service is localized in California or some of the services are performed in California and the worker’s residence is in California, the worker’s entire service qualifies as employment.

  • SB 688 (Monning, D-Carmel) authorizes the Labor Commissioner to issue a citation to an employer to recover restitution if the Commissioner determines that an employer has paid a wage less than the wage set by contract in excess of minimum wage.

  • SB 707 (Wieckowski, D-Fremont) requires an employer to pay arbitration initiation fees within 30 days after the due date.  If the employer does not, it is in material breach of the arbitration agreement, in default of the arbitration, and waives its right to compel arbitration.  If the employer breaches, the employee can then proceed in a court of appropriate jurisdiction.

  • SB 778 (Committee on Labor, Public Employment and Retirement) extended the deadline for an employer with 5 or more employees to provide sexual harassment training to January 1, 2021.  The bill took effect immediately.

© 2022 Proskauer Rose LLP. National Law Review, Volume IX, Number 288

About this Author

Anthony J Oncidi, Employment Attorney, Proskauer Rose Law Firm

Anthony J. Oncidi heads the Labor & Employment Law Group in the Los Angeles office. Tony represents employers and management in all aspects of labor relations and employment law, including litigation and preventive counseling, wage and hour matters, including class actions, wrongful termination, employee discipline, Title VII and the California Fair Employment and Housing Act, executive employment contract disputes, sexual harassment training and investigations, workplace violence, drug testing and privacy issues, Sarbanes-Oxley claims and employee raiding and trade secret protection....

Kate Gold Labor and Employment Lawyer Proskauer

Kate Gold is a partner in the Labor & Employment Law Department in the Los Angeles office.

Kate has over 25 years of experience representing clients in a range of industries, across all areas of employment law.  An experienced litigator, she has represented clients in all types of employment-related suits, including class and collective actions, discrimination, retaliation and harassment, non-compete and wage/hour matters.  In addition to litigating, she conducts high-level workplace investigations and routinely counsels clients on matters involving the full range of state and...

Cole Lewis Employment Attorney

Cole Lewis is an associate in the Labor & Employment Department.

Cole graduated from UCLA School of Law, where he worked as a law clerk for Public Counsel of Los Angeles and advocated for benefit recipients in the Department of Public Social Services. He has also previously worked as a summer associate in Proskauer’s Labor & Employment Department.

Prior to law school, Cole received his Bachelor’s degree in Journalism at Indiana University, where he graduated cum laude.