This week, the Southern California Employment Law Blog interviewed Todd Martin, a Senior Human Resources Generalist for Amazon, who also has experience working for small businesses as a human resource (“HR”) specialist. He is an expert in his field and a ​SHRM Certified Professional (SHRM-CP). Mr. Martin was willing to provide insights on his strategies for managing the human element of business.

Why did you to decide to pursue a career in human resources?

I fell into HR. I graduated college with a business degree in 2008, at the height of the recession.  I couldn’t get a job and took a temp position as a recruiter for a sales company.  From there I started learning more about the HR role and, after 5 years of recruiting and onboarding, decided I wanted to do more with HR. I love the feeling of helping people and finding solutions to problems, which is a lot of what HR is and does. There is a joy in being a support for both the company I work for and its employees.

On September 30, 2020, Governor Newsom signed Senate Bill 973 requiring large employers to report certain pay and other data to the Department of Fair Employment and Housing (DFEH) by March 31, 2021 and annually thereafter. Specifically, SB 973 requires employers of 100 or more employees to report to DFEH pay and hours-worked data by job category and by sex, race, and ethnicity (hereinafter “pay data”).

The desire of the government to obtain pay information is nothing new. On January 29, 2016, President Obama announced a series of actions intended to close the gender pay equity gap, including proposed revisions to the EEO-1 form that would require the submission of detailed pay information. However, in August 2017, the Trump Administration put a halt to the implementation of this new rule.” Following a federal court ruling, the U.S. Equal Employment Opportunity Commission (EEOC) was ordered to and did collect these data for 2017 and 2018. Since then, the EEOC has stopped collecting the data.

However, there are some stark differences to the federal law. Under the Gender Recognition Act of 2017 (Senate Bill 179), California officially recognizes three genders: female, male, and nonbinary. Therefore, employers would be required to report employees’ sex according to these three categories. Employee self-identification is the preferred method of identifying sex information.

With each new year comes new responsibilities for employers. While the California legislature was less busy due to a brief COVID shutdown, there are still some key laws that every employer must know for 2021.

COVID-19 Paid Leave

In California, there are five laws regarding COVID-related leave. The first two have been in place for many years — California Family Rights Act (CFRA) and Labor Code § 246 (Sick Leave). In April 2020, the federal government passed the Families First Coronavirus Response Act (FFCRA) and Emergency Paid Sick Leave and Emergency Paid Family & Medical Leave, which expanded the Family Medical Leave Act (FMLA). The laws that were passed by the federal government applied only to employers with fewer than 500 employees and there was an exemption for small employers who could prove that expanded leave would jeopardize the business. However, in September 2020, the California legislature passed the COVID-19 Supplemental Paid Sick Leave (“CSPSL”) to make the federal laws applicable to all employers. The CSPSL also created new laws that will be addressed herein.

California recently passed two new laws related to COVID19 that every employer needs to know.

Employee Notification

Assembly Bill 685, which takes effect Jan. 1, 2021, requires California employers that receive notice of potential exposure to COVID-19 to “provide specified notifications to its employees within one business day of the notice of potential exposure.”

In September 2019, the state of California passed a law that made it more difficult for employers to classify workers as independent contractors. The law was received with much criticism because “nonsensical exemptions” for only a select professions.

The state legislature is back at it for 2020. On September 4, 2020, Governor Newsom signed AB 2257, which clarifies California’s independent contractor laws. The stringent ABC test remains the default standard, but there are now more exemptions for California business owners to learn thanks to heavy lobbying efforts. Well, not every lobbying effort created results. Gig economy companies, franchising, trucking and the motion picture and television industries all stuck out in receiving exemptions.

The new exemptions that were created by AB 2257 include:

There have been many recent news stories about people losing their jobs due to taking a political stance or being involved in protests. A former employee of Taco Bell claims he was terminated for wearing a Black Lives Matter mask at work. On the other side, a journalist was terminated by the Washington Examiner after a video went viral showing that she faked helping a local business board up windows.

This has raised the question – Can an employee be terminated for political speech or lawful activity outside of work?

Free Speech

As American businesses begin to reopen after strict government shutdowns aimed at slowing the spread of COVID-19 (coronavirus), many employers are encountering employees who refuse to return to work. Whatever the motivation – high unemployment benefits, family benefits or fear of infection – it is important for employers and employees to understand their rights… and consequences.

Layoff v. Furlough

First, at the onset of the government restrictions, many employers were faced with a decision to either layoff or furlough employees. A layoff is an involuntary separation between an employer and an employee that occurs through no fault of the employee. Typically, layoffs occur when there is not enough work. A furlough is considered to be an alternative to a layoff. It can be administered in different ways, such as a reduction in work hours or a requirement for the employee to take a certain amount of unpaid time off. However, unlike a layoff, the furloughed worker remains an employee. As such, a furlough is akin to an unpaid leave of absence. The employee is guaranteed working hours once business resumes.

The Families First Coronavirus Response Act (FFCRA), which includes the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act, is a new law passed by the federal government in response to COVID-19 (Coronavirus). The law provides paid sick leave and expanded family and medical leave to employees impacted by COVID-19.

When does the law start?

The FFCRA’s paid leave provisions are effective on April 1, 2020, and apply to leave taken between April 1, 2020, and December 31, 2020.

On March 19, 2020, the Governor of California issued a “Safer at Home” Order and declared that only essential businesses should remain open to the public. Other states have issued similar mandates. Currently, millions of Americans have already lost their jobs due to the COVID-19 (Coronavirus) crisis and, according to a Federal Reserve estimate, the projected unemployment total could reach 47 million.

Employers all around the country are struggling with how to respond to this difficult situation. The following information is intended to help employers make an informed decision.

Layoffs

COVID-19 (Cornoavirus) was first identified in Wuhan, China in late 2019 and has since spread across the globe. The rapid response of federal, state and local governments has created an adverse impact on local businesses. At Davis & Wojcik APLC, our goal is to help businesses survive COVID-19.

Workplace Safety

California’s Occupational Safety and Health Act of 1973 (“Cal-OSHA”) requires that employers provide “safe and healthful working conditions for all California working men and women.” (Labor Code § 6300). This includes protecting workers exposed to airborne infectious diseases such as the coronavirus.

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