As we enter 2020, several laws which Governor Gavin Newsom signed in 2019 went into effect on January 1, 2020. Below are some bills that are expected to have risk-related impacts on members.
AB 5 (Gonzalez). Worker status: employees and independent contractors.
Summary: This bill adopts a new legal standard for determining whether a worker is an employee or an independent contractor. With the bill, a worker is considered an employee unless they meet all three criteria. Those criteria are that the worker: 1) is free from the control and direction of the hiring entity in connection with the performance of the work; 2) performs work that is outside the usual course of the hiring entity’s business; and 3) is customarily engaged in an independent established trade, occupation, or business. There are some exceptions for licensed professionals and some specific industries, but those exceptions will require certain new provisions. Members are encouraged to take a conservative approach in applying AB 5, at least until the courts provide further clarification on how to properly apply the law and its exceptions.
AB 9 (Reyes). Employment discrimination: limitation of actions.
Summary: The California Fair Employment and Housing Act (FEHA) makes specified employment and housing practices unlawful, including discrimination against or harassment of employees and tenants, among others. Previous law authorized a person claiming to be aggrieved by an alleged unlawful practice to file a verified complaint with the Department of Fair Employment and Housing (DFEH) within one year from the date upon which the unlawful practice occurred, unless otherwise specified. This bill extends the period to three years for complaints alleging employment discrimination, as specified. The bill specifies that the operative date of the verified complaint is the date that the intake form was filed with the Labor Commissioner.
AB 218 (Gonzalez). Damages: childhood sexual assault: statute of limitations.
Summary: This bill expands the definition of childhood sexual abuse, which would instead be referred to as childhood sexual assault. This bill increases the time limit for commencing an action for recovery of damages suffered as a result of childhood sexual assault to 22 years (compared to eight years) from the date the plaintiff turns 18 or within five years of the date the plaintiff discovers or reasonably should have discovered that the psychological injury or illness occurring after the age of majority was caused by sexual assault, whichever is later. Further, the re-opening of previously settled cases for three years is concerning.
AB 749 (Stone). Settlement agreements: restraints in trade.
Summary: This bill prohibits an agreement to settle an employment dispute from containing a provision that prohibits, prevents, or otherwise restricts a settling party that is an aggrieved person, as defined, from the employer against which the aggrieved person has filed a claim or any parent company, subsidiary, division, affiliate, or contractor of the employer. The bill provides that a provision in an agreement entered into, on, or after January 1, 2020, that violates this prohibition is void as a matter of law and against public policy. This bill precludes an employer from prohibiting an employee that has engaged in unlawful or egregious conduct, from seeking future employment with the same employer.
AB 1116 (Grayson). Firefighters: peer support.
Summary: This bill authorizes public agencies to create a “peer support team” consisting of emergency service personnel, hospital staff, clergy, and educators to aid fire service employees with emotional or professional issues. Any communication between a fire service employee and members of the “peer support team” shall remain confidential unless information shared necessitates legal disclosure.
SB 542 (Stern). Workers’ compensation.
Summary: This bill creates a rebuttable presumption for peace officers and firefighters who are diagnosed with post-traumatic stress disorder. This bill pertains to injuries sustained on or after January 1, 2020, and requires six months of employment unless the employee is exposed to a “sudden and extraordinary event.” Additionally, employees may file a claim up to five years after leaving employment depending on their length of service.
There are a few two-year bills that will be worth tracking. Those bills, along with the Authority’s position, are noted below.
AB 680 (Chu). Public safety dispatchers: mental health training.
Summary: This bill would require the Commission on Peace Officer Standards and Training, on or before January 1, 2021, to develop mental health training courses for state and local public safety dispatchers, incorporated in the dispatchers’ basic training course and as a continuous training course, that cover specified topics, including recognizing indicators of mental illness, intellectual disabilities, or substance use disorders, and conflict resolution and de-escalation techniques. The bill would require the Commission to develop these courses in consultation with specified groups and individuals. This bill would provide dispatchers with valuable training to help identify a mental health crisis and inform law enforcement how to appropriately approach the situation on the ground and provide important health intervention procedure for the person in crisis.
AB 932 (Low). Workers’ compensation: off-duty firefighters.
Position: Oppose unless amended
Summary: Current law grants workers’ compensation benefits to a firefighter, or the firefighter’s dependents, if the firefighter is injured, dies, or is disabled by proceeding to or engaging in a fire-suppression or rescue operation, of the protection of life or property, anywhere in California, but is not acting under the immediate supervision of the employer. This bill would expand the scope of this provision to apply when a firefighter engages in a fire-suppression or rescue operation, or the protection or preservation of life or property, outside of this state. The Authority would remove opposition if the bill is amended to include local discretion and also limit the types of out-of-state situations that would be covered by the measure in step with the provisions instituted by AB 1749.
AB 1107 (Chu). Workers’ compensation.
Summary: This bill would eliminate statutory language saying that an independent medical review decision that overturns the utilization review decision shall not be considered conclusive evidence of an unreasonable denial of medical benefits.
SB 416 (Hueso). Employment: workers’ compensation.
Summary: Current law establishes a workers’ compensation system to compensate employees for injuries sustained arising out of and in the course of their employment. Existing law designates illnesses and conditions that constitute a compensable injury for various employees, such as members of the Department of the California Highway Patrol, firefighters, and certain peace officers. These injuries include, but are not limited to, hernia, pneumonia, heart trouble, cancer, meningitis, and exposure to biochemical substances, when the illness or condition develops or manifests itself during a period when the officer or employee is in service of the employer, as specified. This bill would significantly expand eligibility for workers’ compensation presumption benefits that are limited in current law only to certain categories of peace officers.
The California State Legislature has a few upcoming dates that are worth noting.
January 24 is the last day for the Legislature to submit bill requests to the Office of Legislative Counsel, and January 31 is the last day for each house to pass bills introduced in that house in the odd-numbered year.
For new bills, February 21 is the last day for bills to be introduced. The Authority will continue to track both two-year bills and new bills during this second year of the 2019-20 legislative session.