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It is a new year, with new employment laws.  Here’s a synopsis:

No More Confidentiality Provisions In Settlement Agreements

California law previously prohibited the use of confidentiality provisions in settlement agreements involving claims of sexual assault, sexual harassment, and sex discrimination.  Now, the legislature broadened this to apply to settlement of any claim of workplace harassment or discrimination, or retaliation for reporting or opposing harassment or discrimination.  Further, any non-disparagement provision in a settlement agreement must state: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.” Last, employees cannot be required to prospectively release a claim or right under the Fair Employment and Housing Act.

No More Productivity Quotas That Interfere With Employee Breaks, Etc.

This bill applies to warehouse distribution centers and prohibits any quota that prevents an employee from meal or rest break compliance, the use of bathroom facilities, or otherwise result in violations of occupational health and safety laws.

Underpayment of Wages = Grand Theft

Non-payment or underpayment (all of those wage & hour claims) is considered intentional theft of wages (gratuities included) and if it amounts to greater than $950 from any one employee or $2,350 in the aggregate from 2 or more employees in any consecutive 12-month period it is punishable as grand theft under the Penal Code.  The same is true for independent contractors (which often are mis-classified and are really employees).

More Occupations Exempt from ABC Test

The 3-part test (ABC Test) to determine independent contractor (IC) vs employee (EE) status is (1) the worker free from the control and direction of the hiring entity in connection with the performance of the work, (2) does the person perform work that is outside the usual course of the hiring entity’s business, and (3) is the person customarily engaged in an independently established trade, occupation, or business.  Exemptions of specified occupations and business relationships from the application of the ABC test that use the multifactor test previously adopted in the case of S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341 are extended to more occupations (e.g. manicurist, subcontractors in construction, data aggregator, insurance underwriter and claims adjustor, manufactured housing sales person).

Employee Notifications By Email

Employers can now provide workplace notifications to their employees as attachments to emails.

Longer Time for Complaint Against Employer

DFEH has extra time to file a civil action against an Employer, while a mandatory or voluntary dispute resolution is pending.

Deadlines for Paying Arbitration Fees

Employers who don’t timely pay arbitration fees and costs in employment claims are in breach of the agreement, in default of arbitration, and waive the right to compel arbitration if they do not pay the fees within 30 days after the due date.  Now, the arbitrator must provide invoices to all parties on the same day and by the same means (so that the employee can track the payment).

COVID Notices

When giving notice to the local public health agency of a workplace COVID-19 outbreak, Employers must give that notice within 48 hours or one business day, whichever is later.  Community clinics, adult day health centers, community care facilities and child day care facilities are exempt.

DFEH Mediation Notices

If mediation is requested by the employer or employee, Government Code § 12945.21 is amended to require DFEH to notify an employee in writing of the requirement for mediation under the DFEH’s small employer mediation program covering employers with 5 to 19 employees, before the employee files a civil action.  The employee is required to contact the DFEH’s dispute resolution division prior to filing a civil action for mediation. In an addition and weird place to add it, this new law also adds “parents-in-law” to the list of included family members for whom an eligible employee can take protected CFRA leave.


Here at Epps & Coulson, LLP we understand that the ever-changing employment laws may give you a headache.  We are available to advise.  Feel free to contact Dawn:

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is considered advertising under laws of some states.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

Attorneys admitted to practice in
California, New York, Colorado, Texas, and Oregon