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New Protections For California Employees in 2021

California continues to lead the nation in protecting employees. Here is a quick summary of a few laws and court decisions effective 2021 that bolster legal protections for California employees.

Don’t Cut Short Meal Breaks

  • On February 25, 2021, the California Supreme Court issued its opinion in Donohue v. AMN Services, LLC, holding that (1) employers cannot round meal break clock in/outs in time records, and (2) time records showing late, short, interrupted, and/or missed meal break amounts to a rebuttable presumption of a violation at the summary judgment stage.
  • California Labor Code § 1174 mandates employers to keep a record of start and end clock times for each meal break.  It is not enough to simply show that a half hour meal break was taken during the day — the timecard must reflect the actual clock times.  The Donohue decision strengthened this requirement.
  • The Donohue decision protects an employee’s right to a 30-minute unpaid meal break after no more than 5 hours of work; and a 2nd 30-minute unpaid meal break if the employee works more than 10 hours in a workday. Failure to provide meal break(s) entitles employees to a premium payment of 1 hour of pay per day. Employers must pay meal and rest break penalties when they cause an employee to miss his or her meal break and must provide a way for employees to report if they are unable to take a meal break.
  • For more, see Colby Law Firm’s page on Breaks and Aaron Colby’s article on the Brinker decision.

COVID-19 Anti-Retaliation

  • California Labor Code § 6409.6(f) says that “an employer shall not retaliate against a worker for disclosing a positive COVID-19 test or diagnosis or order to quarantine or isolate.”
  • This means that employers cannot fire an employee for disclosure of any of these COVID-19-related reasons — i.e., positive test, quarantine, or isolate.
  • See Colby Law Firm’s page on Wrongful Termination & Retaliation for more.

Whistleblowers Are Entitled To Attorneys’ Fees And Costs

  • California Labor Code § 1102.5(j) says that “[t]he court is authorized to award reasonable attorney’s fees to a plaintiff who brings a successful action for a violation of these provisions.”
  • The reasons for the change are simple: “…anti-retaliation laws are the bedrock upon which all other workplace rights rest, as “employees have no real right to minimum wage, overtime, rest breaks, worksite safety, or [freedom] from harassment if, upon attempting to exercise those rights, they can be fired immediately.” And, a fee-shifting provision would “help litigants obtain counsel where they might not otherwise be able to afford one,” as plaintiffs’ lawyers are more likely to take a whistleblower retaliation case where fees are guaranteed upon winning.
  • See Colby Law Firm’s page on Wrongful Termination & Retaliation for more.

Reporting Pay Data To The State of California

  • California Government Code § 12999 requires businesses with 100 or more employees to file pay data reports with the California Department of Fair Employment and Housing (“DFEH”) by March 31, 2021 (and is due on or before March 31 each year thereafter): (1) the number of employees by race, ethnicity, and sex in 10 job categories, (2) the number of employees by race, ethnicity, and sex, whose annual earnings fall within each of the pay bands used by the United States Bureau of Labor Statistics in the Occupational Employment Statistics survey, (3) the total number of hours worked by each employee counted in each pay band, and (4) the employer’s North American Industry Classification System (“NAICS”) code.
  • The reason for the law is clear: “By creating a system by which large employers report pay data annually to DFEH, the Legislature sought to encourage these employers to self-assess pay disparities along gendered, racial, and ethnic lines in their workforce and promote voluntary compliance with equal pay and anti-discrimination laws. … Employers’ pay data reports will allow DFEH to more efficiently identify wage patterns and allow for effective enforcement of equal pay or anti-discrimination laws, when appropriate….”
  • The DFEH may share the information with the California Labor Commissioner. The information is discoverable in civil litigation in which it may lead relevant evidence on the claims alleged.
  • See Colby Law Firm’s page on Discrimination for more.

California Leave Law Applies To Small Employers

  • California Government Code § 12945.2(b)(3) says that California employers with five (5) or more employees are covered by the state-equivalent of the FMLA, known as the California Family Rights act, or the CFRA. This threshold used to be 50 employees.
  • Now, employers with at least five (5) employees cannot refuse to grant a request by an employee, who has at least 1,250 hours of service with the employer during the previous 12-month period, to take up to 12 workweeks of unpaid protected leave during any 12-month period to bond with a new child of the employee or to care for themselves, a child, a parent, or a spouse. Nor may employers retaliate against employees who request or take CFRA leave.
  • See Colby Law Firm’s page on Time Off Work for more.

Longer Time To File Harassment And Discrimination Claims

  • California Government Code § 12960(a) sets the statute of limitations on discrimination, harassment and retaliation claims at three (3) years, whereas it used to be one (1) year.  Now, claims must be filed with the DFEH within three (3) years of the date of the discrimination or harassment.
  • The “filing of a complaint” means filing of an intake form with the department, and the date of a verified complaint relates back to the date of filing of the intake form.
  • See Colby Law Firm’s page on Harassment, Discrimination and Prosecuting Claims for more.

Harassment And Discrimination Cannot Be Waived Or Buried

  • California Government Code § 12964.5 says that “it is an unlawful employment practice for an employer, in exchange for a raise or bonus, or as a condition of employment or continued employment … for an employer to require an employee to sign a release of a claim or right” related to anti-harassment, anti-discrimination and/or anti-retaliation under California law.
  • California Civil Code § 1001 makes it is illegal for an employer to require an employee to sign a non-disparagement agreement or other document that purports to deny the employee the right to disclose information about unlawful acts in the workplace, including, but not limited to, sexual harassment. But, this does not apply to a “negotiated” settlement agreement to resolve a claim that has been filed by an employee in court, before an administrative agency, alternative dispute resolution forum, or through an employer’s internal complaint process (“negotiated” means that the agreement is voluntary, deliberate, and informed, provides consideration of value to the employee, and that the employee is given notice and an opportunity to retain an attorney or is represented by an attorney).
  • See Colby Law Firm’s page on Harassment, Discrimination and Prosecuting Claims for more.

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Current or former employees with questions about their own situation should contact Colby Law Firm.

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