New Laws to Watch Out for in 2022
The following are some key new employment-related laws that impact California construction employers. These laws became effective January 1, 2022, unless stated otherwise.
Extension of Construction Trucking Safe Harbor Provisions [AB 1561]
This UCON-sponsored bill extends vital protections for the construction industry and material suppliers under AB 5, provisions removing construction trucking from the application of the ABC test under the Dynamex decision. UCON secured these provisions in AB 5 two years ago, allowing materials to be delivered to job sites by independent truckers. AB 1561 extends the sunset on the crucial construction trucking safe harbor provided for in AB 5.
Electronic Certified Payroll Reporting (eCPR) Penalties [AB 1023]
Creates penalties for contractors/subcontractors who do not provide eCPRs (Electronic Certified Payroll Reports) to the DLSE at least once every 30 days while work is being performed and within 30 days after the final day of work on a project. Penalties are $100 per day up to a $5,000 per project maximum. However, the DLSE cannot levy penalties until 14 days after the deadline, and the penalties only apply to whichever contractor/subcontractor did not furnish their eCPRs.
This applies to all public works contracts, whether new or ongoing, on or after January 1, 2016.
California Family Rights Act (CFRA) Revisions [AB 1033]
Permits the use of CFRA leave to care for a parent-in-law. Adds employer-friendly provisions to the small employer (5 to 19 employees) mediation program created in 2020, requiring an employee filing a claim to participate in the program before they can file a civil action.
As a reminder, CFRA was extended to all California employers with five or more employees, effective January 1, 2021. CFRA requires covered employers to grant a 12-week leave within a 12-month period to eligible employees. Refer to the online Toolkit from the California Department of Fair Employment & Housing (DFEH) for more information and resources.
Direct Contractor Liability for LDs/ Penalties on Private Work [SB 727]
Four years ago, AB 1701 created joint liability for GCs on private projects for unpaid wages and fringe benefits of their subcontractors. Now, SB 727 expands that liability to include penalties and liquidated damages stemming from unpaid wages and benefits of the subcontractors’ employees. UCON opposed this bill and helped achieve amendments to mitigate the liability, as well as removing reference to additional liabilities for the failure of a subcontractor to make payments to the California unemployment insurance fund or to provide workers’ compensation benefits. Contractors on private projects should continue to request payroll records and current status letters from their subs and monitor Trust Fund delinquency reports where available.
Wage Theft = Grand Theft [AB 1003]
Makes the intentional theft of wages, benefits, or other compensation, including gratuities, by an employer in an amount greater than $950 from one employee or $2350 from two or more employees in a 12-month period punishable as grand theft, which prosecutors may charge as a misdemeanor or felony. Independent contractors are also covered for purposes of this new criminal offense.
New Categories of Cal/OSHA Violations [SB 606]
Expands the enforcement authority of Cal/OSHA by creating two new violation categories for which they can issue citations: “enterprise-wide” and “egregious.” UCON was able to help achieve amendments to ensure that these would only apply to the employer who actually committed such violations, and would not impact a contractor’s ability to prequalify on public works projects.
Electronic Distribution of Employer Postings [SB 657]
This law provides a little more flexibility for employers but doesn’t change the posting requirements. Physical postings are still required at all workplaces, which includes the homes of remote employees. Employers are now allowed to provide required notices and postings to remote employees via email; however, the employer must direct the remote worker to print and post the notices, and also reimburse the employee for any expenses incurred in doing this. Additionally, this only applies to state posting requirements (not federal) and arguably may only apply to Labor Code notices (i.e., state minimum wage notice) and not other postings such as those required by the Fair Employment & Housing Act.
Changes to COVID-19 Exposure Notifications [AB 654]
This law made some revisions to AB 685, the COVID-19 workplace exposure notification requirements that became effective January 1, 2021. The revisions, effective October 5, 2021, made language more consistent throughout. For compliance information and links to template notices, see UCON Guide—COVID-19 Workplace Exposure Notices, available here.