In a follow-up to our newsletter following Governor Brown’s signing of many new employment law bills, the below summarizes some of the additional new pieces of legislation impacting employers in 2019.
INDEPENDENT CONTRACTORS – AN UPDATE
The law relating to independent contractors following the Supreme Court’s landmark decision in Dynamex Operations West v. Superior Court in April, 2018 changed the landscape and set forth the “ABC” test to evaluate the independent contractor versus employee relationship. On the first day of the 2019-2020 legislative session, two bills were introduced to address this issue.
AB 5 Worker status: independent contractors (Assemblywoman Gonzalez Fletcher (D-San Diego)
This legislation, sponsored by the California Federation of Labor, seeks to make the Court’s Dynamex decision and the ABC test the definitive law as to independent contractor status — namely that a worker who performs services for a hirer is an employee.
The introduction to the proposed bill states, in part:
“(b)…the Court cited the harm to misclassified workers who lose significant workplace protections, the unfairness to employers who must compete with companies that misclassify, and the loss to the state of needed revenue from companies that use misclassification to avoid obligations such as payment of payroll taxes, payment of premiums for workers compensation, Social Security, unemployment, and disability insurance.
“(c) The misclassification of workers as independent contractors has been a significant factor in the erosion of the middle class and the rise in income inequality.”
AB 71 Employment standards: independent contractors and employees (Assemblywoman Melissa Melendez (R-Lake Elsinore)
This bill if enacted would essentially have the test for an independent contractor determination revert back to the multi-factor “right to control” test which was relied upon for decades by courts and administrative agencies.
This is a subject that will be closely watched by businesses, workers and labor organizations throughout California.
SEXUAL HARASSMENT LEGISLATIVE UPDATE
Right to Testify Regarding Sexual Harassment (AB 3109 Mark Stone)
The Civil Code has been amended to provide that a provision in a contract or settlement agreement, entered into on or after January 1, 2019, is void and unenforceable if it waives a party’s right to testify in an administrative, legislative, or judicial proceeding concerning alleged criminal conduct or sexual harassment, if said request for testimony is pursuant to a court order, subpoena or written request from an administrative agency or the legislature.
Disclosure of Harassment Claims to Prospective Employers & Claims of Defamation (AB 2770 Irwin)
Employers in California have what is called a “qualified privilege” allowing certain statements regarding current and former employees. This bill would include among those privileged communications between the employer and interested persons regarding a complaint of sexual harassment and would authorize an employer to answer, without malice, whether the employer would rehire an employee and whether or not a decision to not rehire is based on the employer’s determination that the former employee engaged in sexual harassment.
The purpose of this legislation would be to protect victims of sexual harassment and employers from defamation claims brought by alleged harassers which have the effect of deterring victims and witnesses from coming forward and deterring employers from telling prospective employers about a genuine harasser which in turn allows repeat sexual harassers to harass future victims at their new place of employment.
The legislation would not ban defamation lawsuits by accused harassers entirely; instead accused harassers would still be allowed to bring a suit, but they must prove malice in order to overcome the qualified privileged.
COPY OF PAYROLL RECORDS UPON REQUEST
Labor Code §226 provides that an employer is required to allow an employee to inspect, or is to provide a copy of the employee’s payroll records, within 21 days of a request. Now, employers are to provide a copy of the records upon request, rather than requiring the employee to make a copy, but still permits the employer to charge the employee “the actual cost of reproduction.”
California law (Labor Code ‘§1031) currently required employers to make reasonable efforts to provide an employee who wishes to express breast milk with the use of a room or other location, other than a toilet stall, in close proximity to the employee’s work area. The term “toilet stall” is replaced with “bathroom.”
Employers are also required to provide employees with a reasonable amount of break time. The break time shall, if possible, run concurrently with any other meal or rest break time already provided to the employee. Break time for an employee that does not run concurrently with paid rest breaks need not be paid. See Labor Code Section 1030.