Over the course of 2021, California’s legislature passed several pieces of employment-related legislation that take effect with the new year and may impact your business, regardless of size or industry.  We have divided the highlighted key points into two parts as you navigate the coming changes, with data referenced from California Legislative Information.  We invite you to contact the KVK team with any questions about this legislation and how it may apply to you.

Legislation

SB-807: Record Retention & DFEH Investigation Timeline Extensions

• Filing deadlines for civil actions pursuant to the Fair Employment and Housing Act (FEHA) are tolled in certain contexts.
• An aggrieved person may commence a civil action about an alleged discriminatory housing practice that forms the basis of a Department of Fair Employment and Housing (DFEH) civil action.
• A civil action for an unlawful practice must be brought in a certain county.
• For a group or class complaint, DFEH must issue a right-to-sue notice upon completing investigation, and not later than two (2) years after the complaint’s filing.
• A DFEH sexual harassment complaint involving a professional relationship has a one-year (1-year) filing limitation, and a complaint alleging violation of the prohibition on unlawful discrimination by a state program or activity has a three-year (3-year) limitation.
• Filing a complaint alleging violation of certain wage discrimination laws after the applicable period for commencing a civil action pursuant thereto expires is prohibited.
• A DFEH human trafficking complaint has the same time limitations and extensions for filing as a civil human trafficking action.
• A complaint may be served electronically, as specified, among certain other authorized methods.
• A certain employment-related record and file retention requirement is increased from two (2) years to four (4) years, and the State Personnel Board is no longer exempted (thus requiring it to retain records for four (4) years).
• Explanations of certain judicial procedures include, but are not limited to, those involving writ petitions, appeals, and awards of attorney’s fees and costs.

SB-762: Costs & Fees in Arbitration – Timing

• Any performance time specified in a contract of adhesion must be reasonable.
• An arbitration provider must provide same-day, same-means invoices for certain fees and costs to all arbitration parties, with certain requirements specifying how this must be done.

AB-468: Emotional Support Animals

• A person or business selling or providing an alleged emotional support dog must provide the buyer or recipient written notice the dog lacks special required training to qualify as a guide, signal, or service dog or enjoy the legal rights and privileges accorded thereto.
• Knowingly and fraudulently representing oneself as an owner or trainer of a guide, signal, or service dog is a misdemeanor.
• A person or business selling or providing a certificate, identification, tag, vest, leash, or harness for an emotional support animal must provide written notice, as specified, to a buyer or recipient.
• A health care practitioner may not provide documentation about an individual’s need for an emotional support dog unless the practitioner complies with specified requirements.
• Violating the written notice requirements or knowingly and fraudulently representing, selling, or offering for sale an emotional support dog (or attempting to do so) as entitled to the legal rights and privileges of a guide, signal, or service dog is subject to a civil penalty.

SB-331: Non-Disclosure Agreements

• A settlement agreement entered into on or after January 1, 2022, related to a civil claim or administrative complaint is prohibited from preventing disclosure of factual information regarding specified acts of workplace harassment or discrimination not based on sex, or similar acts by a housing accommodation owner.
• An employer may not require an employee to sign a non-disparagement agreement or other document that has the purpose or effect of denying the employee’s right to disclose information about unlawful workplace acts.
• A non-disparagement or other contractual provision restricting an employee’s ability to disclose workplace-condition-related information must include certain language about an employee’s right to disclose information about unlawful workplace acts.

AB-1033: CA Family Rights Act Expands the “Family Member” Definition

• “Parents-in-law” is added to the definition of family care and medical leave for purposes of the California Fair Employment and Housing Act (FEHA).
• Various provisions related to mediation are specified, including, but not limited to, procedure, deadlines, and tolling.

AB-1561: “ABC” Exemptions Extended for Certain Independent Contractor Classifications

• The inoperative date of the exemption from the “ABC” test (for determining if workers are employees or independent contractors for certain employment law purposes) is extended from January 1, 2022, to January 1, 2025.
• -Certain provisions for construction trucking services are similarly extended from January 1, 2022, to January 1, 2025.
• The exemption between a data aggregator and an individual providing feedback thereto is revised to apply to the relationship between an aggregator and a “research subject,” with attendant changes.
• Certain exemptions for the insurance and financial services industries also apply to a person who provides claim adjusting or third-party administration.
• A manufactured housing dealer’s statutorily imposed duties are not factors to consider under the Borello test (which applies to specified occupations and business relationships exempted from the aforementioned “ABC” test).
• Additional changes to Section 2783 of the Labor Code proposed by AB-1506 (on employees and independent contractors of newspaper distributors and carriers) are incorporated, to be operative only if this bill and AB-1506 are enacted and this bill is enacted last (because AB-1506 was enacted on September 27, 2021, and AB-1561 was enacted three days later on September 30, 2021, this provision stands).

By Patrick Babajanian –  January 14, 2022