2021 LEGISLATIVE SUMMARY, EMPLOYMENT LAW PART 3
February 26, 2021 by Catherine Holzhauser, Christopher Hammer, Kena Cador, Lorrie Bradley, Peder J.V. Thoreen, Sarah Kanbar, Stephanie Platenkamp, Tony Rice and Travis WestIndependent Contractor Status
Proposition 22, App-Based Transportation and Delivery Companies Exempt from Providing Employee Benefits to Certain Drivers – California voters approved Prop. 22, which now allows application-based transportation and delivery companies that provide ride-share services or delivery services to classify drivers as independent contractors. Drivers are considered independent contractors under the following circumstances: (1) the company does not require drivers to work specified days, times, or a minimum number of hours to be logged into the company’s application or platform; (2) the company does not require drivers to accept specific ride-share requests or deliveries in order to use the application or platform; (3) the company does not restrict drivers from performing ride-share services or deliveries for other companies; (4) the company does not restrict drivers from engaging in any other occupation or business.
While drivers for application-based transportation and delivery companies are now independent contractors, Prop. 22 enacts certain protections specific to drivers, including an earnings guarantee; healthcare subsidies for drivers who average a specified number of hours of work during a calendar quarter; occupational accident insurance for injuries while a driver is working; and application-based transportation and delivery companies must adopt anti-discrimination and anti-harassment policies and practices, as well as conduct background checks and safety training. Moreover, companies must also enter into a written agreement with the driver that outlines any grounds for termination, before allowing the driver to use the application or platform.
2021 California Minimum Wage Increase – Effective January 1, 2021, the California Minimum Wage for employers with 25 employees or less increased to $13.00/hr. The Minimum Wage for employers with 26 employees or more increased to $14.00/hr.
The increased Minimum Wage potentially removes some employees from exemption under certain Labor Code provisions. For example, Paid Sick Leave (L.C. 245.5) and Daily Overtime (L.C. 514) contain an exemption for employees covered by a valid collective bargaining agreement so long as the employee’s rate of pay is at least 130% of Minimum Wage (i.e., $18.20/hr. for employers with 26 or more employees, and $16.90 for all others).
AB 1947, Extension of Time to File Employment Retaliation Complaints – Existing law provided workers with six months to file a claim for wrongful discharge, retaliation, or discrimination in violation of any law enforced by the Division of Labor Standards Enforcement (DLSE). This bill expands that statute of limitations to one year after the occurrence of the violation. It also authorizes courts to award attorney’s fees in cases where a worker brings a successful whistleblower lawsuit.
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