SIX NEW EMPLOYMENT LAWS AFFECTING COMMUNITY ASSOCIATIONS IN 2022Drew Hendricks
Reporting Workplace COVID-19 Outbreaks And Disclosing Benefits (AB 654). Under the old law, if a COVID-19 outbreak occurs at a workplace, California gave an employer 48 hours to report the outbreak to local public health agencies. Now employers have 48 hours or the next business day, whichever is later, to submit a report. Unchanged: Employers must inform any employee which was on the same premises as the sick individual (within the infectious period) of all their available COVID related benefits. As to those benefits, note that while California’s COVID supplemental sick-leave law expired on Sept. 30, 2021, the cities of Los Angeles and Long Beach enacted supplemental paid sick ordinances which are still enforceable. Finally, note that these benefits are changing faster than an involuntary cough.
Document Retention and Expanded Statutes of Limitation for FEHA Claims (SB 807). This new law requires that employers retain employment records for four years, instead of two. It also tolls (stops) the statute of limitations for folks to sue during the pendency of a Department of Fair Employment and Housing investigation. So now, those seeking DFEH protection still have a year to file a lawsuit, beginning after the DFEH files suit or closes its investigation.
Pay Attention to Your Tip Policies! (AB 1003) Many of our clients have on-site clubhouses with bar and restaurant services. This bill is intended to keep tips in the pocket of employees, but it is worded so expansively that your written “shared tip” policy may be seen as documentation of an “intentional theft” of wages (which yes, include tips) when totaling more than $950.00 from a single employee or $2,350 from two or more employees during any consecutive 12-month period. This bill provides for criminal prosecution of employers who substantially share in the tips of employees (and independent contractors, also included as “employees”).
Arbitration Agreements and Fees (SB 762). Many associations had written contracts with their employees requiring, prior to or in lieu of a lawsuit, participation in arbitration. These employer-employee arbitration agreements came under fire by AB 51, which prohibited these agreements as conditions of employment and imposed civil and criminal penalties for doing so. Although the Chamber of Commerce of the USA v. Bonta court upheld most of AB 51, the case is under review by the entire Ninth Circuit Court of Appeal as to whether this bill is a violation of the constitutional right of contract. Meanwhile, many management companies have similar (but enforceable) “dispute resolution” arbitration agreements with their client associations. An emerging problem is that those same companies are not actually funding those arbitrations. SB 762 affirms a rule that if a contract requires arbitration, but the contracting party does not pay their fees and costs, then they are in breach of the agreement and waive their rights to so compel. Additionally, arbitration providers must now timely clarify and invoice all arbitration fees and costs before the arbitration can proceed, which fees are generally due immediately.
AB 5 and Dynamex. (AB 1561). There are new extensions which sunset exemptions from AB 5 and the “ABC Test,” articulated by the California Supreme Court in Dynamex Operations W. v. Superior Court (2018), 4 Cal.5th 903. These do not apply to the community association industry, and you need to make sure that you are properly classifying those who purport to be independent contractors. This means either checking with any independent contractors you are using to make sure they have other clients, or by checking with your legal counsel to make sure these folks are actually independent contractors.
Happy New Year! If you have any questions about these or other legal issues, please do not hesitate to contact the undersigned.
Community Legal Advisors, Inc.
Mark T. Guithues
Toll Free: (833) 938-1877