Mid-Year Update on 2021 Employment Bills Pending in the California Legislature

This year’s legislative session in the California Legislature once again began with a flurry of employment law related bills. However, the first step for any proposed bill to move forward is to pass out of its house of origin – either the Assembly or the Senate – by a June 4, 2021 deadline. If a bill does so, it remains active and continues to progress through the legislative process in the opposite house. If a bill does not pass out of its house of origin, it is then considered “dead” for the remainder of this year’s legislative session. However, because we are in the first year of a two-year legislative session, such dead bills can be reconsidered again in next year’s legislative session.

For those bills that are still active and pending, both the Assembly and the Senate will reconvene on August 16, 2021 and will have until September 10, 2021 to hold committee meetings and take any action to pass the bills. All such bills that are passed will then be submitted to the Governor to sign or veto by an October 10, 2021 deadline.

Below is a brief summary of significant employment related Assembly Bills (“AB”) and Senate Bills (“SB”) that are still active and pending before the Legislature. In addition, we have also included a brief summary of dead bills that are not currently active, but that may be reconsidered again next year as part of the 2022 legislative session.

Active and Pending Employment Law Bills

AB 123:  Increases weekly benefit amount for Paid Family Leave (“PFL”).

AB 123 would revise the current formula used to determine benefits available pursuant to the state’s Paid Family Leave wage replacement program from the existing 60-70% of an employee’s wages up to 90% of an employee’s wages for leaves commencing on or after January 1, 2022.

AB 654:  Clean-up bill to last year’s AB 685 COVID-19 outbreak notice requirements.

Last year’s AB 685 that went into effect at the beginning of this year requires employers to notify employees in a workplace where there has been a confirmed case of COVID-19. AB 654 is a clean-up bill to update the criteria for when such a workplace notice is to be provided to employees. In addition, the bill also expands on the type of health care and other care facilities that are exempt from reporting requirements to a local health care department in the event of a defined COVID-19 outbreak.

AB 1003:  Adds intentional theft of wages to criminal definition of grand theft.

This bill amends the Penal Code to define the crime of “grand theft” to include the intentional theft of wages in an amount greater than $950 for one employee or $2,350 in the aggregate from two or more employees by any employer in a consecutive 12-month period. For purposes of this proposed law, “employee” is defined to include an independent contractor and “employer” includes the hiring entity of an independent contractor. An employee who is victim to such intentional wage theft can also pursue a civil action to recover such wages that would be subject to prosecution under this proposed law.

AB 1033:  CFRA clean-up bill to include “parent-in-law” as family member and expand application of DFEH’s mediation program for smaller employers subject to CFRA.

AB 1033 is largely a clean-up bill to last year’s SB 1383, which significantly modified the California Family Rights Act (“CFRA”). In addition to lowering the employee threshold under CFRA from 50 employees to 5 employees, SB 1383 also expanded the ability to take CFRA leave to care for more family members with a serious health condition. While SB 1383 included a definition of “parent-in-law” that was intended to be one of the new family members covered under CFRA, the law did not actually apply any such family leave to a parent-in-law. Therefore, AB 1033 fixes this issue by adding care for a parent-in-law with a serious health condition as a qualifying CFRA leave for a covered employee. In addition, AB 1033 also expands on the small employer family leave mediation program for employers with less than 20 employees to allow such smaller employers a better opportunity to invoke the mediation program in lieu of a civil action.

AB 1041:   Amends CFRA and the Paid Sick Leave Law to allow leave to care for a “designated person,” in addition to existing family members.

This bill would allow an employee to take CFRA leave or paid sick leave in accordance with California’s Paid Sick Leave law (including sick leave covered under Labor Code section 233 – formerly known as the “Kin Care” law) to care for a “designated person” identified by the employee, in addition to existing family members (parent, parent-in-law, child, spouse, registered domestic partner, grandparent, grandchild, or sibling). The bill would allow an employer to limit the employee to only have one designated person for every 12-month period.

 “Dead” Employment Law Bills (May Be Reconsidered in 2022)

AB 95:  Employer-provided bereavement leave for employers with 25 or more employees.

AB 95 would have required an employer with 25 or more employees to allow an employee, upon the employee’s request, to take up to 10 business days of unpaid bereavement leave due to the death of a family member (spouse, child, parent, parent-in-law, sibling, grandparent, grandchild, or registered domestic partner) within three months of the death. An employer with less than 25 employees would also be subject to the new law, but would only be required to provide up to 3 business days of bereavement leave.

AB 257:  Requires fast food franchisors and franchisees to meet standards established by new Fast Food Sector Council.

AB 257 would have established the Fast Food Sector Council, comprised of eleven members appointed by either the Governor, the Assembly Speaker, or the Senate Rules Committee. The Council would then establish certain minimum standards for the California fast food industry, including standards relating to wages, working hours, and other working conditions. Any violations of such standards would have been enforced by the Division of Labor Standards Enforcement. This bill would have also made franchisors responsible for ensuring their franchisees’ compliance with the new standards, and therefore jointly and severally liable for any violations.

AB 650:  Mandated hazard pay retention bonuses for health care workers.

AB 650 would have required certain health care industry employers to pay qualifying employees quarterly hazard pay retention bonuses of $1,000 to $2,500 based on work performed during the COVID-19 pandemic from 2020-2022. Employers would also have been prohibited from discharging or laying off an employee in order to avoid paying this hazard pay retention bonus.

AB 995:  Expansion of Paid Sick Leave Law from 3 day/24 hours to 5 days/40 hours of sick leave in 12-month period.

AB 995 would have expanded the Paid Sick Leave Law to increase the amount of accrued paid sick leave for employers to provide employees with no less than 3 days/24 hours of paid sick leave by the 120th calendar day of each 12-month period, to no less than 5 days/40 hours of paid sick leave by the 200th calendar day of the 12-month period. The bill also would have increased the accrual cap of paid sick leave from 6 days/48 hours to 10 days/80 hours.

AB 1119:  Adds “family responsibilities” protected category to FEHA.

AB 1119 would have expanded the Fair Employment and Housing Act (“FEHA”) to include “family responsibilities” as a protected characteristic under FEHA. The bill defined “family responsibilities” to mean the “obligations of an employee to provide direct and ongoing care for a minor child or care recipient.”  As a result, this bill would have made it unlawful for an employer to fail to engage in a timely, good faith interactive process to determine an effective reasonable accommodation for the known family responsibilities of an applicant or employee related to obligations arising from an unforeseen need to care for a minor child or care recipient whose school or place of care is closed or otherwise unavailable.

AB 1175:  Prohibits advance notice of Cal/OSHA workplace inspections or investigations.

Currently, Cal/OSHA representatives are authorized to give advance notice to an employer of an inspection or investigation. AB 1175 would have prohibited such advance notice of any investigation or inspection conducted by California’s Occupational Safety and Health Administration (“Cal/OSHA”), unless specifically authorized by Cal/OSHA laws, such as when certain personnel must be present for the inspection or to ensure access to the inspection site.

AB 1179:  Requires larger employers to provide employees with “backup childcare” benefits.

AB 1179 would have required employers with 1,000 or more employees to provide qualifying employees with up to 60 hours of paid backup childcare benefits when the employee’s regular childcare provider is unavailable. This bill would have required such covered employers to pay for up to 60 hours of services for a qualified backup childcare provider at the state or federal minimum wage, whichever is higher.

AB 1256:  Prohibits employee discrimination based on positive drug screening results for cannabis.

AB 1256 would have prohibited employers from discriminating against a person in hiring, termination, or in any other condition of employment due to a positive drug screening result for cannabis. The law would have provided exceptions for any employers who are required to conduct such testing, or for employers in the construction and building trades.

We will continue tracking these employment-related bills in the California Legislature. We will provide updates once the dust settles from this year’s legislative session and we know which bills are actually signed into law. Stay tuned!