Happy new year . . .?
It’s already February, and time to remind clients and friends of a few big picture items that California employers should watch in 2021. Here is the list:
No. 1: Independent contractors. Lawsuits about independent contractors will be big. The law changed in the last couple of years, and the ABC test is the new, draconian test with draconian penalties going forward. The California Supreme Court recently confirmed that the Dynamex decision, which applied the ABC test, is retroactive.
Employer tip: Review your independent contractor arrangements and make sure they are at least defensible.
No. 2: COVID and remote work. Whether and how to reimburse employees for business expenses for home/remote work, including internet and mobile phone, are big questions that every employer must address.
Employer tip: Check on whether or how you reimburse employees for remote work expenses.
No. 3: COVID-related temperature checks and questions. Many employers do this for their non-exempt employees, off the clock. Even though the amount of time may be minimal, there is no de minimis rule in California. All time, no matter how small, must be paid.
Employer tip: Check your COVID-related, pre-work protocols, and especially whether employees are paid for this time.
No. 4: Alternative work schedules. Alternative work schedules (such as 4/10s, 3/12s) are fertile grounds for missteps—and lawsuits.
Employer tip: Check your compliance with the AWS Labor Code and Wage Order requirements, as well as your records.
No. 5: Arbitration. Arbitration agreements with class waivers and third-party beneficiary language are still a main line of defense against wage-hour class actions. This is so even though the Ninth Circuit is expected to rule shortly on whether to uphold a federal injunction that bars enforcement of California’s AB 51 (which prevents arbitration in many instances) and its prohibition on arbitration agreements as a condition of employment.
Employer tip: Check your arbitration agreements, and implement or upgrade them. And watch the Ninth Circuit case, Chamber of Commerce v. Becerra.
No. 6: Return to work post-shutdown. Although there are numerous COVID-related requirements that employers must heed relating to notice, workers’ comp, and OSHA directives, “back to work“ may be a reality sometime in the late summer or fall and creates a great deal of individualized issues that will take up a lot of time.
Employer tip: It is never too early to plan for employees’ return to the workplace.
No. 7: Remote work from other states. The migration of companies and employers out of California to other states -- in particular, Texas -- is a real phenomenon. Remote work has made this even more of a possibility for many of our clients.
Employer tip: Get advice if you are transitioning employees to other states, especially if they will work remotely from their new states.
No. 8: New pay data requirement. SB 973 requires all employers of 100 or more employees to submit basic EEO-1 pay data that tracks race, gender, etc., starting in March.
Employer tip: Review the templates on Pay Data Reporting on the CA Department of Fair Employment and Housing website.
No. 9: The Biden Administration. President Biden has wasted no time reconfiguring the landscape of federal priorities. How it all shakes out is still unclear, but we think federal laws and regulations will start to look more like California’s. We will keep you posted.
Here’s hoping that 2021 is better than 2020 was. If you have questions, please contact your Constangy lawyer.
- Partner
Ken represents employers in employment class actions and PAGA cases and guides them through complex disputes that shape the future of their industries. He counsels clients in healthcare, hospitality, manufacturing, higher ...
California employment laws keep employers up at night, wondering what is coming next. There always seems to be something. From new statutes to new regulations to new court decisions, we will keep you up to date on developments in the areas of wage and hour, discrimination, leaves of absence, retaliation, class actions, PAGA, and arbitration. We’ll also provide you with practical information on how to update your policies and employment practices.
