Happy 2021! I am posting an updated chart of California Leaves of Absences. As you’ll note on the final page, this does not incorporate COVID-19 related time off and wage replacement laws under FFCRA, Cal/OSHA, or California sick leave programs. I hope to post a separate document with those updated particulars soon-ish.

(Of course, if you see a “need for further revision” AKA a mistake, feel free to let me know! Follows my theme of “we’re all in this together!”)

Wow! What a way to start the New Year!!!!!

This didn’t make it into my Employment Law Update (due to operator error), but please note that beginning January 1, 2021, California’s Paid Family Leave program will expand by adding “Military Assist.” PFL Military Assist benefits will be available to eligible Californians who need time off work to participate in a qualifying event because of the military deployment of their spouse, registered domestic partner, parent, or child to a foreign country.

For more information, here is the EDD’s PFL website that is focused on applications made after January 1.

A new year means. . . . new employment compliance issues. Read on! And of course, do not hesitate to contact us with questions or for assistance. The best way to reach me is here: jdebacker@mstpartners.com

COVID-19

The laws, rules, regulations and standards about COVID-19 are a moving target. Here is what we know as of today.

The FFCRA, which included federal Paid Sick Leave and paid “E-FMLA”, expires December 31, 2020, as does the California version that required paid sick leave for larger employers. The new (December 21, 2020 December 27, 2020) stimulus package addresses FFCRA leave, but seems to say that as of January 1, employers are no longer required to provide FFCRA leave; if they do, they can continue to get a federal tax credit for leave through March 31, 2021. We’ll look to update this when we know more.

Cal/OSHA Emergency Standards

Cal/OSHA issued new Emergency Standards on November 30, 2020 that cover every employee in California, except those already covered by the Aerosol Transmissible Diseases standard, employees working from home, and single-employee employers who do not have contact with anyone.

The Emergency Standards require the following:

• If an employee must be excluded from the worksite for a COVID-19 related reason (having or having been exposed to COVID-19 at work), but is otherwise able and available to work, the employer must continue the employee’s earnings and benefits.
• If there has been a COVID-19 case at a workplace, the employer must offer COVID-19 testing at no cost to employees during their work hours to all employees who had potential exposure in the workplace.
• Notification to employees (and employers of subcontracted employees) of potential exposure. A new law that takes effect January 1 requires this notice to be in writing.
• Tracking of COVID-19 cases.
• Provide face coverings to all employees.
• Creating a written COVID-19 Prevention Program. A fill-in-the-blank template is available from the Department of Industrial Relations.
• Reporting of outbreaks to the local Public Health authority. The definition of “outbreak” varies across several laws. If an employer has more than two positive employees, the employer should see if the notification rule is triggered.
• For employers who provide housing and transportation to employees, there are special requirements to ensure appropriate social distancing.

Cal/OSHA Reporting Requirements and Enforcement

In addition to the Emergency Standards, a new law requires employers to notify in writing specified employees of their potential exposure to COVID-19 within one business day from the employer’s notice that an employee tested positive or was diagnosed with COVID-19, became subject to a COVID-19 isolation order or died due to COVID-19.  This notification must be provided to employees who were working at the same work site as the employee with COVID-19 during the infectious period. The notice must include information regarding workers’ compensation insurance, COVID-19-related paid time off, and state-mandated leave time. All employees and employees of subcontractors must be notified of the disinfection and safety plan. Employers must not identify the employee with COVID-19 by name. Employers must also notify the local public health agency within 48 hours if there is an outbreak. And, Cal/OSHA now has the authority to issue emergency shut down orders for an entire worksite if it deems that necessary.

Workers’ Compensation Insurance and COVID-19

In May 2020, Governor Newsom issued an Executive Order which created a rebuttable presumption that employees’ illnesses relating to COVID-19 were occupational injuries eligible for workers’ compensation insurance benefits if certain criteria were met. Now that Order is a law. To rebut the presumption that the employee’s COVID-19 illness is work-related, employers may present evidence demonstrating that the illness was not contracted at work as well as safety measures they have taken. Also, employees are required to exhaust their paid sick leave prior to being eligible for workers’ compensation temporary disability benefits. This law went into effect September 17, 2020.

Compensation

Wage orders

Every employer must post the most current Wage Order in the workplace, so please download the wage order for your business today and post it where employees can find it. The Wage Orders were revised for 2021! You can find the latest Wage Order for your business at www.dir.ca.gov

Minimum Wage

Effective January 1, 2021, California employers with at least 26 employees must pay minimum wage at the rate of $14.00 per hour. For employers with 25 or fewer employees, minimum wage will increase to $13.00 per hour.

Employers are generally subject to federal, state and local minimum wage laws and must follow the stricter standard; that is, the one that is the most beneficial to the employee.

Exempt employees

The minimum salary that must be paid to exempt employees in California corresponds to the state minimum wage. Exempt employees must earn at least twice the state’s minimum wage for full-time employment — $58,240 annually for employers with 26+ employees. For employers with 25 or fewer employees, the amount is $54,080. This minimum salary increases as minimum wage increases. As always, the “duties” tests must be satisfied for any employee classified as exempt. 

Overtime for the Computer Software Professional Exemption  

As of January 1, 2021, employers must pay their California computer professional employees a salary of at least $98,907.70 annually ($8,242.32 monthly) or an hourly wage of $47.48 every hour worked in order to remain exempt from paying such employees overtime compensation. The applicability of this exemption requires careful analysis to see if the worker is performing the necessary duties. This exemption is only from overtime; these employees must still be afforded the opportunity to take meal and rest breaks. 

Independent Contractors

Until about March 2020, all the talk was about AB 5, Dynamex and the ABC Test. While that talk has died down a bit, please note that if you have anyone performing services for you that isn’t paid as a W2 employee, you must carefully review that relationship.

Two laws modified AB 5 this year. The first came from the Legislature and seemed to be very dependent upon who had effective lobbyists in Sacramento. AB 2557 amended the law to revise and add exceptions to the “ABC Test” used to determine whether a worker is properly classified as an employee or independent contractor.

The new law removed the annual 35-submission limit for freelancer writers, editors, newspaper cartoonists, still photographers, and photojournalists, though a variety of other requirements still must be met. New exceptions have been added for workers who create, market, promote, or distribute sound recordings or musical compositions, and for certain single-engagement live musical performances. Other additions include workers who provide underwriting inspections and other services for the insurance industry, a manufactured housing salesperson, people engaged by an international exchange visitor program, consulting services, animal services, and competition judges with specialized skills. The bill also creates exceptions for licensed landscape architects, some youth coaches, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators. The new law also changes the conditions under which business service providers providing services to another business are exempt, and the criteria for the referral agency exemption. An exemption for business-to-business relationships between two or more sole proprietors has also been created.

All of these exemptions and revisions are subject to specific requirements. And, as before, if an exemption applies, the worker must still satisfy the multi-factor Borello test in order to be properly classified as an independent contractor.

The second change came through the voting process.  Proposition 22 is a very limited exception to AB 5. The new law classifies drivers for app-based transportation and delivery companies as independent contractors, not employees, unless the company sets the workers’ hours, requires acceptance of specific ride and delivery requests, or restricts working for other companies.

Wage Claim Arbitration

If an employer asks a court to require arbitration of a wage claim, the Labor Commissioner may now provide legal representation to the claimant when asked and if the claimant is financially unable to afford representation. The Labor Commissioner must determine the claim has merit. The Labor Commissioner may oppose the petition to arbitrate and represent the claimant in the arbitration.

Extension of time to file a retaliation claim with the Labor Commissioner

A new law enlarges the time for employees to file complaints with the Labor Commissioner for claims that they were discriminated against or discharged in violation of Labor Code provisions enforced by the Labor Commissioner. The employee now has one year, instead of six months, to file a claim. This bill also amends Labor Code section 1102.5 to allow employees who prevail on a claim for certain types of retaliation to recover their attorneys’ fees.

Time Off / Leaves of Absence

California Family Rights Act (CFRA) covers employers of 5 or more employees

The CFRA and the federal FMLA have historically been viewed as “practically the same.” Then, in 2018, the CFRA was changed to require employers to provide new child bonding time to employees working for employers with 20 or more employees.

Starting January 1, 2021, the CFRA will cover employers with 5 or more employees. An eligible employee must be employed for 12 months and work 1,250 hours. There is no geographic limit, though, when counting the number of employees. The employees could be spread across the state and if they add up to 5, the law covers the employees.

The 12 weeks of unpaid time off can be taken to care for a family member with a serious health condition. The definition of family member is expanded to include grandparents, grandchildren, and siblings. The new law also provides up to 12 weeks of time off due to a military-related “qualifying exigency,” which has been covered by the FMLA for years. Employers can no longer limit leave to 12 weeks of combined baby-bonding leave when both parents are employees. And the ability to limit reinstatement for certain key employees has been eliminated. 

Kin Care

Under Labor Code 233, employees must be permitted to use at least half of their annual accrual of employer-provided sick leave for “kin care” (family) reasons. This bill amends the law to provide that it is up to the employee’s “sole discretion” to designate leave to use for this purpose. The new law does not require employers to provide any additional paid time off—it simply clarifies who designates which type of sick leave is used when an employee uses a sick day.

Protected Time Off for Domestic Violence, Sexual Assault, or Stalking Victims

Existing law protects some employees who are the victims of victims of domestic violence, sexual assault, or stalking, and the protections are expanded this year. Labor Code sections 230 and 230.1 are amended to provide the victims of violent crimes and families of homicide victims (1) time to recover without fear of job loss and (2) expanded unpaid leave. The new law expands the coverage to include victims of “or other crime or abuse” “that caused physical injury or that caused mental injury and a threat of physical injury” and “a person whose immediate family member is deceased as the direct result of the crime.”

Fair Employment

Pay Data Reporting Requirements 

Employers with 100 or more employees that are required to file the federal EEO-1 report must also submit a pay data report to the California Department of Fair Employment and Housing (DFEH) starting March 31, 2021. The report must include the race, ethnicity and gender of employees by job category within pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey. The data will be provided according to a single pay period of the employer’s choice between October 1 and December 31 of the reporting year.

The DFEH will make these reports available to the Labor Commissioner upon request, although both agencies are required to keep the data confidential, except to carry out administrative enforcement or to respond to discovery in litigation. The reports will not be subject to the California Public Records Act.

Harassment Prevention Training

By January 1, 2021 employers with five or more employees are to provide two hours of harassment prevention training to supervisors and one hour of training for all nonsupervisory employees in California. Thereafter, this training must be provided every two years. New hires must receive this training within six months of hire or promotion to a supervisory position. A new rule from the Fair Employment and Housing Commission has clarified that the training can occur in increments – meaning a manager could do one hour each year, for example, so long as all the content is conveyed.

Cal/OSHA’s emergency regulations, which I wrote about yesterday, are now in effect.

Cal/OSHA has posted some FAQs that can answer a lot of your questions. If you scroll down in the FAQs, there is a link to a model COVID-19 prevention program – it downloads into a word document and you can do a lot of “fill in the blanks” to comply.

Don’t forget that your local/County Public Health department is also an important source of information and handy documents. For example, I was asked what an employer can do if they cannot require a negative COVID test for return to work. Well, you want the employee to certify that they have reached a stage of recovery or did not exhibit symptoms for a certain period of time. The County of Monterey has a nice template to use that requires the employee to certify their status. It is here.

On November 20, 2020, the Cal/OSHA Standards Board adopted Emergency Standards related to COVID-19 prevention in the workplace. The Standards were sent to another part of the state government – the Office of Administrative Law (OAL) on Friday, November 20, where the OAL will review it until at least November 30. The draft Standards will remain open for five days after that during which stakeholders may submit comments to the OAL. Once the OAL adopts a final regulation, it will be codified and enforceable by Cal/OSHA (so, December 5?).

**The OAL now lists this as APPROVED. **

Honestly, while some parts of this rule are new – the paid time off requirement and the testing in response to positive cases, for example – I anticipate that you already had something similar to what Cal/OSHA wants in place already for the protocols, especially if you operate in a Bay Area county. So, pat yourself on the back, exalt in your glory, get a big cup of coffee and take a close look at your written plan and the protocols to ensure you are in compliance with these rules. And we should know in a few days if these become Standards enforceable by Cal/OSHA.

All employees and places of employment are covered by this emergency standard, except:

• A worksite with one employee who does not have contact with any other persons.
• Employees working from home.
• Employees already covered by Cal/OSHA’s aerosol transmission standard.

PAID TIME OFF. If an employee must be off work for having or being exposed to COVID-19 and has no paid time off available, the employer must continue to pay them.  The employer can require use of paid sick leave, PTO, FFCRA, or other sources, but if they have exhausted those benefits, the employer must keep paying them and to provide them information about benefit entitlements. 

The regulation provides that employers shall “continue and maintain an employee’s earnings, seniority, and all other employee rights and benefits, including the employee’s right to their former job status.” Of note, this requirement does not appear to contain a maximum number of hours per year, meaning an employee could potentially be excluded from the worksite multiple times. The employer is required to maintain earnings and benefits during each period.

There are two potential exemptions to this “maintained earnings” requirement:

• The requirement does not apply to any period during which the employee is unable to work for reasons other than protecting persons at the workplace from COVID-19 transmission.
• The requirement does not apply where the employer “demonstrates” that the COVID-19 exposure is not work-related. While it may seem like you would be able to do this easily, can you? Keep in mind the Cal/OSHA’s position that once a non-work-related COVID-19 case enters the worksite, it is deemed to be a worksite hazard.

EXCLUDED FROM WORKSITE. COVID-19 Cases must be excluded from the worksite until they have satisfied return to work criteria.  The new standard requires employers to ensure that “COVID-19 cases” (those who have tested positive or have an order to isolate from public health authorities) are excluded from the worksite until they have satisfied the return to work criteria.

If an employee is exposed, they are to be excluded from the workplace for 14 days after the last known exposure.  However, if the employee does not contract COVID-19, the employee does not need to be excluded if the public health department does not require isolation, if the employee is temporarily reassigned to work where they do not have contact with other persons.

RETURN-TO-WORK CRITERIA. Before a worker who tested positive or was ordered to isolate can return to work, the workers must satisfy certain criteria. 

COVID-19 Cases with Symptoms. Employees who are COVID-19 cases with symptoms shall not return to work until:

• At least 24 hours have passed since a fever of 100.4+ has resolved without the use of fever-reducing medications.
• COVID-19 symptoms have improved; and
• At least 10 days have passed since symptoms first appeared.

COVID-19 Cases Without Symptoms.  COVID-19 cases who tested positive but never developed symptoms shall not return to work until a minimum of 10 days have passed since the date of specimen collection of their first positive COVID-19 test.

Orders to Isolate or Quarantine. If a public health authority issues the order to isolate or quarantine, the employee shall not return to work until either period of isolation or quarantine is lifted. If no period is specified, then the period shall be 10 days from the time the order to isolate was effective, or 14 days from the time the order to quarantine was effective.

Of note (!) the new emergency standard states that negative COVID-19 test shall not be required for an employee to return to work. Therefore, California employers will not be permitted to insist that COVID-19 cases take a test before returning to the job.

WRITTEN COVID-19 PREVENTION PROGRAM. California employers must prepare, implement, and maintain a Written COVID-19 Prevention Program (WCPP) like an IIPP. You can either have a standalone WCPP or integrate it into your existing IIPP. If you have had employees at a worksite, you likely already have a written COVID-19 Plan, likely in compliance with your County’s Public Health guidance and that of the state. You will need to take a close look at what Cal/OSHA requires for this plan it to make sure your plan contains all the information now required.

The required elements as outlined by Emergency Standard for WPPs include the following:

1. System for communicating information about your policies and procedures.
2. Identification and evaluation of COVID-19 hazards.
3. Investigating and responding to COVID-19 cases in the workplace.
4. Correction of COVID-19 hazards.
5. Training and instruction.
6. Physical Distancing.
7. Face coverings.
8. Other engineering controls, administrative controls, and personal protective equipment.
9. Reporting, recordkeeping, and access.
10. Exclusion of COVID-19 cases.
11. Return to work criteria.

NOTICE OF POTENTIAL COVID-19 EXPOSURE AND CASES. If you have had employees at the worksite over the past 8 months, you have likely faced the need to tell other employees about exposure and cases. The Emergency Standards repeat some of what you have already been doing, but it is important to review your process.  The new standard requires employers give notice of the potential COVID-19 exposure within one business day to all employees who may have been exposed, their authorized representatives, and independent contractors and other employers who were present during the high risk exposure period. The high-risk exposure period generally begins 48 hours before onset of symptoms or specimen for the positive test.  

The Emergency Standard does not require that the notice be in writing, but you should do it that way.  AB 685 (the Cal/OSHA law taking effect January 1) will required it.  And the best way to show you complied with the rules is to have the announcement in writing and not rely on a script or someone’s recollection. Also, AB 685 identifies a slightly different group who must receive this notice, as it specifies all employees (as well as their exclusive representatives) and employers of subcontracted employees who were on premises at the same worksite, not independent contractors or just those employees who may have been exposed.

The Standard confirms that the notice must be given without revealing any personal identifying information of the COVID-19 case. We already knew this was the expectation given the DFEH’s announcement on the issue. So, identifying information must be kept confidential – even if it seems “everybody knows!”  The identity of the individuals and their medical records related to COVID-19 may be required to be provided to the local health department, CDPH, the Division, the NIOSH, or as otherwise required by law.

If there is an outbreak at a worksite (see below, but if you have three cases, the term “outbreak” may apply!), both AB 685 and the new Standard require the reporting of such confidential information to the local public health department within 48 hours of the outbreak.  The Standard also requires employers to report to the Division of Industrial Relations any COVID-19 related serious illnesses or deaths that occur in the workplace or in connection with employment. Employers must also ensure they are recording and tracking the appropriate information for all COVID-19 cases in accordance with this new standard.

And the notice must also include information about the employer’s cleaning and disinfection protocols.

PHYSICAL DISTANCING. This should not be new anyone reading this, but just in case. The Emergency Standard provides that all employees shall be separated from each other by at least six feet. There are two exceptions to this requirement: (1) where the employer can demonstrate that six feet of separation is not possible, and (2) momentary exposures while employees are in movement.

If the employer demonstrates that it is not possible to maintain a distance of at least six feet, individuals shall be as far apart as possible. But you will have to show why.  And at fixed work locations where it is not possible to maintain physical distancing, the employer shall install “cleanable solid partitions” that reduce transmissions between employees.

The Standard confirms that the keeping the number of people low is ideal.  Other methods of physical distancing include telework or other remote work arrangements, reducing the number of persons in an area at one time, staggered arrival and departure, and adjusted work processes. And, again, if you have people in a workplace, you will need to have cleaning and disinfecting procedures.

FACE COVERINGS AND PERSONAL PROTECTIVE EQUIPMENT (PPE).  Under the Standard, employers must provide face coverings and ensure that they are worn by employees over the nose and mouth when indoors, when outdoors and less than six feet away from another person, or when required by public health authorities. The Standard clarifies that face shields are not a replacement for face coverings, although they may be worn together for additional protection.

An employer cannot prevent an employee from wearing a face covering when not required unless it would create a safety hazard.

And an employee does not need to be required to wear a face covering:

• when an employee is alone in a room,
• while eating and drinking, provided employees are at least six feet apart
• when the employee is wearing respiratory protection
• if the employee who cannot wear face coverings due to a medical or mental health condition or disability, or who are hearing-impaired or communicating with a hearing impaired person (but they must wear an effective alternative, such as a face shield with a drape on the bottom
• Specific tasks that cannot feasibly be performed with a face covering.

However, even if a person fits under one of the exceptions and cannot wear a fact covering, they must be at least six feet apart from others unless the unmasked employee is tested at least twice weekly for COVID-19.

The Standard says that the employer must provide the face coverings; it does not address whether the employee can bring their own from home. We suggest that the employer provide the coverings to ensure their efficacy. 

TESTING. All employers have new testing obligations, and if there is an outbreak, there are additional responsibilities. 

• If testing is required under any part of the new Standard, the employer shall inform the effected employees of the reason for the COVID-19 testing and the possible consequences of a positive test.
• When there has been even one COVID-19 case in the workplace, the employer must offer free COVID-19 testing during working hours to all employees who have potential COVID-19 exposure in the workplace.
• Employers may not use COVID-19 testing as an alternative to face coverings when face coverings are otherwise required.

OUTBREAKS. If your workplace has an outbreak, you need to check with your local Public Health rules, the requirements of AB 685, SB 1159, and this new Standard!

“Multiple COVID-19 Infections and COVID-19 Outbreaks,” means the local public health department has determined the workplace has had an outbreak, or when there are three or more COVID-19 cases in an exposed workplace within a 14-day period.  In this situation, the employer must provide COVID-19 free testing to all employees at the exposed workplace during the period of the outbreak or the relevant 14-day period. This testing must be offered during employee working hours, and immediately upon being covered by this outbreak definition. Employers must then offer this same testing again one week later for the same employees. After the first two required COVID-19 tests, employers shall provide continuous COVID-19 testing of employees who remain at the workplace at least once per week or provide testing more frequently if recommended by the local health department.

“Major COVID-19 Outbreaks,” means there are 20 or more COVID-19 cases in an exposed workplace within a 30-day period. If a “Major COVID-19 Outbreak” occurs, the employer must provide free testing for all employees present at the exposed workplace during the relevant 30-day period(s) and who remain at the workplace. This testing must be offered during employee working hours, and twice a week or more frequently if recommended by the local health department.

Under either definition of an outbreak, if there is one, the employer must exclude all COVID-19 cases and employees with a COVID-19 exposure, conduct an investigation of the COVID-19 illness, and provide specific notice to the local public health department within 48-hours after knowledge of the outbreak.

Finally, under either definition of outbreak, the requirements of the outbreak apply until there are no new COVID-19 cases detected in a workplace for a 14-day period.

EMPLOYER-PROVIDED HOUSING AND TRANSPORTATION.  For employers that provide housing and transportation to employees, there are some new rules:   

If you provide housing for employees, you will be required to implement priority housing assignments based on individuals who work together on the same crew or shift. Additionally, you must be able to ensure sufficient space in the units to permit social distancing while the employees are in the various units, and you are responsible for ensuring the units are cleaned at least once a day. If residents are exposed to COVID-19, you must isolate that employee by providing a private bathroom, sleeping area, cooking, and eating facility.

If you provide transportation, employees must be screened before boarding, sit at least three feet apart, and wear face coverings during transportation.

***

Honestly, while some parts of this rule are new – the paid time off requirement and the testing in response to positive cases, etc. – I anticipate that you already had something similar to what Cal/OSHA wants in place already for the protocols. So, pat yourself on the back, exalt in your glory, get a big cup of coffee and take a close look at your written plan and the protocols to make sure you are in compliance with these rules. And we should know in a few days if these become Standards enforceable by Cal/OSHA.

Employers with more than 500 employees (and certain healthcare employers) were not required to provide paid sick leave under the federal FFCRA, a 2020 benefit I discuss in more detail in my blog (and would link here if wasn’t frustrated by this software and about to throw my computer out the window).

Last week, Governor Newsom signed AB1867 expanding the Paid Sick Leave to employees exempted from the FFCRA’s provisions. These new sick leave provisions take effect September 19^th.  The California Labor Commissioner issued a new notice you can post here.

The Great Rob Nuddleman just posted an important article on his blog about a new leave law for smaller employers. If you have ignored my FMLA/CFRA posts because you are “too small” have you got a change coming!

Read the full article here: https://nuddleman.com/california-mandates-fmla-cfra-leave-for-small-employers/

SB 1383 was just signed into law and it makes employers with 5 or more employees Covered Employers for purposes of the CFRA. These small employers will be required to provide up to 12 weeks of unpaid time off in the following situations:

(A) Leave for reason of the birth of a child of the employee or the placement of a child with an employee in connection with the adoption or foster care of the child by the employee.

(B) Leave to care for a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition.

(C) Leave because of an employee’s own serious health condition that makes the employee unable to perform the functions of the position of that employee, except for leave taken for disability on account of pregnancy, childbirth, or related medical conditions.

(D) Leave because of a qualifying exigency related to the covered active duty or call to covered active duty of an employee’s spouse, domestic partner, child, or parent in the Armed Forces of the United States, as specified in Section 3302.2 of the Unemployment Insurance Code.

See the full article (link above) to find out more about how this works.

Welp, there it is:  Today, Governor Newsom signed AB 2257, which “revises and recasts” parts of AB 5.  And if your industry had a good, vocal lobbyist, you may have good news!

Of note, even if your industry/occupation is no longer governed by AB 5’s ABC test, the relationship is governed by the multifactor test previously adopted in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.

Among other things, the new law –which takes effect immediately – does the following:

• Exempts certain occupations in connection with creating, marketing, promoting, or distributing sound recordings or musical compositions.

• Exempts a musician or musical group for the purpose of a single-engagement live performance event, unless certain conditions apply, and would define related terms.

• Exempts an individual performance artist presenting material that is their original work and creative in character and the result of which depends primarily on the individual’s invention, imagination, or talent, if certain conditions are satisfied.

• Deletes the existing professional services exemptions for services provided by still photographers, photojournalists, freelance writers, editors, and newspaper cartoonists. Instead, the law establishes an exemption for services provided by a still photographer, photojournalist, videographer, or photo editor, as defined, who works under a written contract that specifies certain terms, subject to prescribed restrictions.

• Establishes an exemption for services provided to a digital content aggregator, as defined, by a still photographer, photojournalist, videographer, or photo editor.

• Establishes an exemption for services provided by a fine artist, freelance writer, translator, editor, content contributor, advisor, narrator, cartographer, producer, copy editor, illustrator, or newspaper cartoonist who works under a written contract that specifies certain terms, subject to prescribed restrictions.

• Creates additional exemptions for various professions and occupations. In this regard, the bill would exempt from the “ABC test” people who provide underwriting inspections and other services for the insurance industry, a manufactured housing salesperson, subject to certain obligations, people engaged by an international exchange visitor program, as specified, consulting services, animal services, and competition judges with specialized skills, as specified.  

• Creates exceptions for licensed landscape architects, specialized performers teaching master classes, registered professional foresters, real estate appraisers and home inspectors, and feedback aggregators.

• Revises the conditions pursuant to which business service providers providing services pursuant to contract to another business are exempt. The law revises the criteria pursuant to which referral agencies and service providers providing services to clients through referral agencies are exempt and would revise applicable definitions.

• Creates an exemption for business-to-business relationships between 2 or more sole proprietors, as specified. The law provides that a hiring entity need only satisfy all of the conditions of one of the exemption provisions to qualify for the exemption from the ABC Test.

Does your relationship fit under these new rules?  Did you change how you were paying workers and now this changes what you THOUGHT were the rules?

This may shock you – this isn’t a complete explanation. But it is the Friday afternoon before a long weekend (during which I will do the same thing I do every weekend – not leave my house). But I am just summarizing a summary here. More to come when this is all parsed out!

We’ve all been reviewing the appropriate county and state guidance for returning employees to work – and I’ve had some questions about the State’s overarching document.  So, note that the California Department of Public Health’s guidance for employers Responding to COVID-19 in the Workplace is here.

I attended a great webinar last week on AB 5 (the independent contractor law that took effect in the old days — January 2020).  I mean, I know it ALL but . . . you know, to hear other people’s impressions of the implications of the law. One thing that was news to me is that there are 30 pending bills in the California legislature for substantive (and some non substantive) changes to the law.

I was looking to create a tracking log for these in terms of those I need to follow and then this just popped up on my phone:

“California Assembly postpones return to Sacramento – members and staff positive for COVID-19”

The Senate plans to return Monday. . .