Bill Text: CA AB2765 | 2017-2018 | Regular Session | Amended
Bill Title: Employment benefits: digital marketplace: contractor benefits.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Introduced - Dead) 2018-04-16 - In committee: Set, first hearing. Hearing canceled at the request of author. [AB2765 Detail]
Download: California-2017-AB2765-Amended.html
|
Amended
IN
Assembly
March 22, 2018 |
CALIFORNIA LEGISLATURE—
2017–2018 REGULAR SESSION
| Assembly Bill | No. 2765 |
| Introduced by Assembly Member Low |
February 16, 2018 |
LEGISLATIVE COUNSEL'S DIGEST
AB 2765, as amended, Low.
Portable employee benefits. Employment benefits: digital marketplace: contractor benefits.
Existing law prescribes comprehensive requirements relating to minimum wages, overtime compensation, and standards for working conditions for the protection of employees applicable to an employment relationship. Existing law makes it unlawful for any person or employer to willfully misclassify an individual as an independent contractor.
This bill would authorize an organization that is a digital marketplace, as defined, to contribute to a marketplace contractor benefit plan established to provide certain employment benefits to marketplace contractors, as defined, who use the digital marketplace. Under the bill, the digital marketplace would make the election by providing written notice of the election and paying no more than a $500 administrative fee to the
Employment Development Department. The bill would require the department to use the revenues, upon appropriation by the Legislature, for the administration of marketplace contractor benefit plans.
The bill would require a participating digital marketplace, as defined, to enter into a written plan agreement with a plan administrator to establish and maintain a benefit plan to provide benefits to the contractors who use the digital marketplace, as prescribed. The bill would require a digital marketplace that elects to contribute to a benefit plan to contribute an unspecified minimum percentage of the contractor fee for each transaction and would authorize a benefit plan to require a contractor to earn a minimum amount of contractor fees. The bill would provide for plan withdrawal penalties, which would be required to be remitted to the department and used by the department, upon appropriation by the Legislature, to administer the bill or for any other purpose
authorized by existing law governing employment.
The bill would require, for purposes of all provisions of state and local laws that govern employment, that a marketplace contractor that offers services through a digital marketplace be treated as an independent contractor of the digital marketplace.
The bill would require participating digital marketplaces to establish a procedure for representatives of the marketplace contractors to meet at least 4 times per year with representatives of the participating digital marketplaces to discuss issues relating to the operation of the participating marketplace. The bill would authorize a participating digital marketplace to provide education and training to marketplace contractors that use the digital marketplace on specific subject matters.
The bill would declare that its provisions address a matter of statewide concern and would prohibit
a county, municipality, or other political subdivision from enacting or enforcing any law, ordinance, or rule inconsistent with the bill’s provisions.
The California Fair Employment and Housing Act (FEHA) defines and provides administrative and civil remedies for specified unlawful discriminatory practices, including various unlawful employment practices.
This bill would make it an unlawful employment practice subject to FEHA for a digital marketplace to discriminate against any individual because of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, or marital status, in receiving, classifying, disposing, or otherwise acting upon applications to participate with the digital marketplace as a marketplace contractor. The bill would define “digital marketplace” and “marketplace contractor” for purposes of FEHA.
Existing law sets forth provisions for the regulation of employment benefits, including, but not limited to, health care coverage, workers’ compensation, and retirement plans.
This bill would state the intent of the Legislature to enact legislation relating to portable employee benefits in California.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee:Bill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 12926 of the Government Code is amended to read:12926.
As used in this part in connection with unlawful practices, unless a different meaning clearly appears from the context:(a) “Affirmative relief” or “prospective relief” includes the authority to order reinstatement of an employee, awards of backpay, reimbursement of out-of-pocket expenses, hiring, transfers, reassignments, grants of tenure, promotions, cease and desist orders, posting of notices, training of personnel, testing, expunging of records, reporting of records, and any other similar relief that is intended to correct unlawful practices under this part.
(b) “Age” refers to the chronological age of any individual who has reached a 40th birthday.
(c) Except as provided by Section 12926.05, “employee” does not include any individual employed by that person’s parent, spouse, or child or any individual employed under a special license in a nonprofit sheltered workshop or rehabilitation facility.
(d) “Employer” includes any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly, the state or any political or civil subdivision of the state, and cities, except as follows:
“Employer” does not include a religious association or corporation not organized for private profit.
(e) “Employment agency” includes any person undertaking for compensation to procure employees or opportunities to work.
(f) “Essential functions” means the fundamental job
duties of the employment position the individual with a disability holds or desires. “Essential functions” does not include the marginal functions of the position.
(1) A job function may be considered essential for any of several reasons, including, but not limited to, any one or more of the following:
(A) The function may be essential because the reason the position exists is to perform that function.
(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed.
(C) The function may be highly specialized, so that the incumbent in the position is hired based on expertise or the ability to perform a particular function.
(2) Evidence of whether a particular function is essential includes, but is not limited to, the following:
(A) The employer’s judgment as to which functions are essential.
(B) Written job descriptions prepared before advertising or interviewing applicants for the job.
(C) The amount of time spent on the job performing the function.
(D) The consequences of not requiring the incumbent to perform the function.
(E) The terms of a collective bargaining agreement.
(F) The work experiences of past incumbents in the job.
(G) The current work experience of incumbents in similar jobs.
(g) (1) “Genetic information” means, with respect to any individual, information about any of the following:
(A) The individual’s genetic tests.
(B) The genetic tests of family members of the individual.
(C) The manifestation of a disease or disorder in family members of the individual.
(2) “Genetic information” includes any request for, or receipt of, genetic services, or participation in clinical research that includes genetic services, by an individual or any family member of the individual.
(3) “Genetic information” does not
include information about the sex or age of any individual.
(h) “Labor organization” includes any organization that exists and is constituted for the purpose, in whole or in part, of collective bargaining or of dealing with employers concerning grievances, terms or conditions of employment, or of other mutual aid or protection.
(i) “Medical condition” means either of the following:
(1) Any health impairment related to or associated with a diagnosis of cancer or a record or history of cancer.
(2) Genetic characteristics. For purposes of this section, “genetic characteristics” means either of the following:
(A) Any scientifically or medically identifiable gene or chromosome, or combination
or alteration thereof, that is known to be a cause of a disease or disorder in a person or that person’s offspring, or that is determined to be associated with a statistically increased risk of development of a disease or disorder, and that is presently not associated with any symptoms of any disease or disorder.
(B) Inherited characteristics that may derive from the individual or family member, that are known to be a cause of a disease or disorder in a person or that person’s offspring, or that are determined to be associated with a statistically increased risk of development of a disease or disorder, and that are presently not associated with any symptoms of any disease or disorder.
(j) “Mental disability” includes, but is not limited to, all of the following:
(1) Having any mental or psychological disorder or
condition, such these as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities, that limits a major life activity. For purposes of this section:
(A) “Limits” shall be determined without regard to mitigating measures, such these as medications, assistive devices, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(B) A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.
(C) “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working.
(2) Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.
(3) Having a record or history of a
mental or psychological disorder or condition described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any mental condition that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a mental or psychological disorder or condition that has no present disabling effect, but that may become a mental disability as described in paragraph (1) or (2).
“Mental disability” does not include sexual behavior disorders, compulsive gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(k) “Military and veteran status” means a member or veteran of the United States Armed Forces, United States Armed Forces Reserve, the United States National Guard, and the California National Guard.
(l) “On the bases enumerated in this part” means or refers to discrimination on the basis of one or more of the following: race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual orientation, or military and veteran status.
(m) “Physical disability” includes, but is not limited to, all of the following:
(1) Having any physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss that does both of the following:
(A) Affects one or more of the following body systems: neurological, immunological, musculoskeletal, special sense organs, respiratory, including speech organs, cardiovascular, reproductive, digestive, genitourinary, hemic and lymphatic, skin, and endocrine.
(B) Limits a major life activity. For purposes of this section:
(i) “Limits” shall be determined without regard to mitigating measures such these as medications, assistive devices, prosthetics, or reasonable accommodations, unless the mitigating measure itself limits a major life activity.
(ii) A physiological disease, disorder, condition, cosmetic disfigurement, or anatomical loss limits a major life activity if it makes the achievement of the major life activity difficult.
(iii) “Major life activities” shall be broadly construed and includes physical, mental, and social activities and working.
(2) Any other health impairment not described in paragraph (1) that requires special education or related services.
(3) Having a
record or history of a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment described in paragraph (1) or (2), which is known to the employer or other entity covered by this part.
(4) Being regarded or treated by the employer or other entity covered by this part as having, or having had, any physical condition that makes achievement of a major life activity difficult.
(5) Being regarded or treated by the employer or other entity covered by this part as having, or having had, a disease, disorder, condition, cosmetic disfigurement, anatomical loss, or health impairment that has no present disabling effect but may become a physical disability as described in paragraph (1) or (2).
(6) “Physical disability” does not include sexual behavior disorders, compulsive gambling, kleptomania,
pyromania, or psychoactive substance use disorders resulting from the current unlawful use of controlled substances or other drugs.
(n) Notwithstanding subdivisions (j) and (m), if the definition of “disability” used in the federal Americans with Disabilities Act of 1990 (Public Law 101-336) would result in broader protection of the civil rights of individuals with a mental disability or physical disability, as defined in subdivision (j) or (m), or would include any medical condition not included within those definitions, then that broader protection or coverage shall be deemed incorporated by reference into, and shall prevail over conflicting provisions of, the definitions in subdivisions (j) and (m).
(o) “Race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, age, sexual
orientation, or military and veteran status” includes a perception that the person has any of those characteristics or that the person is associated with a person who has, or is perceived to have, any of those characteristics.
(p) “Reasonable accommodation” may include either of the following:
(1) Making existing facilities used by employees readily accessible to, and usable by, individuals with disabilities.
(2) Job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.
(q) “Religious creed,” “religion,” “religious observance,” “religious belief,” and “creed” include all aspects of religious belief, observance, and practice, including religious dress and grooming practices. “Religious dress practice” shall be construed broadly to include the wearing or carrying of religious clothing, head or face coverings, jewelry, artifacts, and any other item that is part of an individual observing a religious creed. “Religious grooming practice” shall be construed broadly to include all forms of head, facial, and body hair that are part of an individual observing a religious creed.
(r) (1) “Sex” includes, but is not limited to, the following:
(A) Pregnancy or medical conditions related to pregnancy.
(B) Childbirth or medical conditions related to
childbirth.
(C) Breastfeeding or medical conditions related to breastfeeding.
(2) “Sex” also includes, but is not limited to, a person’s gender. “Gender” means sex, and includes a person’s gender identity and gender expression. “Gender expression” means a person’s gender-related appearance and behavior whether or not stereotypically associated with the person’s assigned sex at birth.
(s) “Sexual orientation” means heterosexuality, homosexuality, and bisexuality.
(t) “Supervisor” means any individual having the authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or the responsibility to direct them, or to adjust their grievances, or effectively to
recommend that action, if, in connection with the foregoing, the exercise of that authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
(u) “Undue hardship” means an action requiring significant difficulty or expense, when considered in light of the following factors:
(1) The nature and cost of the accommodation needed.
(2) The overall financial resources of the facilities involved in the provision of the reasonable accommodations, the number of persons employed at the facility, and the effect on expenses and resources or the impact otherwise of these accommodations upon the operation of the facility.
(3) The overall financial resources of the covered entity, the overall size of the business of a covered
entity with respect to the number of employees, and the number, type, and location of its facilities.
(4) The type of operations, including the composition, structure, and functions of the workforce of the entity.
(5) The geographic separateness or administrative or fiscal relationship of the facility or facilities.
(v) “National origin” discrimination includes, but is not limited to, discrimination on the basis of possessing a driver’s license granted under Section 12801.9 of the Vehicle Code.
(w) “Digital marketplace” shall have the same meaning as in Chapter 4.8 (commencing with Section 1080) of Part 3 of Division 2 of the Labor Code.
(x) “Marketplace contractor” shall have the same meaning as in Chapter 4.8 (commencing with Section 1080) of Part 3 of Division 2 of the Labor Code.
SEC. 2.
Section 12940 of the Government Code is amended to read:12940.
It is an unlawful employment practice, unless based upon a bona fide occupational qualification, or, except where based upon applicable security regulations established by the United States or the State of California:(a) For an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in
compensation or in terms, conditions, or privileges of employment.
(1) This part does not prohibit an employer from refusing to hire or discharging an employee with a physical or mental disability, or subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee with a physical or mental disability, if the employee, because of a physical or mental disability, is unable to perform the employee’s essential duties even with reasonable accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.
(2) This part does not prohibit an employer from refusing to hire or discharging an employee who, because of the employee’s medical condition, is unable to perform the employee’s essential duties even with reasonable
accommodations, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations. Nothing in this part shall subject an employer to any legal liability resulting from the refusal to employ or the discharge of an employee who, because of the employee’s medical condition, is unable to perform the employee’s essential duties, or cannot perform those duties in a manner that would not endanger the employee’s health or safety or the health or safety of others even with reasonable accommodations.
(3) Nothing in this part relating to discrimination on account of marital status shall do either of the following:
(A) Affect the right of an employer to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or
facility, consistent with the rules and regulations adopted by the commission.
(B) Prohibit bona fide health plans from providing additional or greater benefits to employees with dependents than to those employees without or with fewer dependents.
(4) Nothing in this part relating to discrimination on account of sex shall affect the right of an employer to use veteran status as a factor in employee selection or to give special consideration to Vietnam-era veterans.
(5) (A) This part does not prohibit an employer from refusing to employ an individual because of the individual’s age if the law compels or provides for that refusal. Promotions within the existing staff, hiring or promotion on the basis of experience and training, rehiring on the basis of seniority and prior service with the
employer, or hiring under an established recruiting program from high schools, colleges, universities, or trade schools do not, in and of themselves, constitute unlawful employment practices.
(B) The provisions of this part relating to discrimination on the basis of age do not prohibit an employer from providing health benefits or health care reimbursement plans to retired persons that are altered, reduced, or eliminated when the person becomes eligible for Medicare health benefits. This subparagraph applies to all retiree health benefit plans and contractual provisions or practices concerning retiree health benefits and health care reimbursement plans in effect on or after January 1, 2011.
(b) For a labor organization, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital
status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of any person, to exclude, expel, or restrict from its membership the person, or to provide only second-class or segregated membership or to discriminate against any person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person in the election of officers of the labor organization or in the selection of the labor organization’s staff or to discriminate in any way against any of its members or against any employer or against any person employed by an employer.
(c) For any person to discriminate against any person in the selection, termination, training, or other terms or treatment of that person in any
apprenticeship training program, any other training program leading to employment, an unpaid internship, or another limited duration program to provide unpaid work experience for that person because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status of the person discriminated against.
(d) For any employer or employment agency to print or circulate or cause to be printed or circulated any publication, or to make any nonjob-related inquiry of an employee or applicant, either verbal or through use of an application form, that expresses, directly or indirectly, any limitation, specification, or discrimination as to race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic
information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, or any intent to make any such these limitation, specification, or discrimination. This part does not prohibit an employer or employment agency from inquiring into the age of an applicant, or from specifying age limitations, if the law compels or provides for that action.
(e) (1) Except as provided in paragraph (2) or (3), for any employer or employment agency to require any medical or psychological examination of an applicant, to make any medical or psychological inquiry of an applicant, to make any inquiry whether an applicant has a mental disability or physical disability or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment agency may inquire into the ability of an applicant to perform job-related functions and may respond to an applicant’s request for reasonable accommodation.
(3) Notwithstanding paragraph (1), an employer or employment agency may require a medical or psychological examination or make a medical or psychological inquiry of a job applicant after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.
(f) (1) Except as provided in paragraph (2), for any employer or employment agency to require any medical or psychological examination of an employee, to make
any medical or psychological inquiry of an employee, to make any inquiry whether an employee has a mental disability, physical disability, or medical condition, or to make any inquiry regarding the nature or severity of a physical disability, mental disability, or medical condition.
(2) Notwithstanding paragraph (1), an employer or employment agency may require any examinations or inquiries that it can show to be job related and consistent with business necessity. An employer or employment agency may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that worksite.
(g) For any employer, labor organization, or employment agency to harass, discharge, expel, or otherwise discriminate against any person because the person has made a report pursuant to Section 11161.8 of the Penal Code
that prohibits retaliation against hospital employees who report suspected patient abuse by health facilities or community care facilities.
(h) For any employer, labor organization, employment agency, or person to discharge, expel, or otherwise discriminate against any person because the person has opposed any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part.
(i) For any person to aid, abet, incite, compel, or coerce the doing of any of the acts forbidden under this part, or to attempt to do so.
(j) (1) For an employer, labor organization, employment agency, apprenticeship training program or any training program leading to employment, or any other person, because of race, religious creed, color, national
origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status, to harass an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract. Harassment of an employee, an applicant, an unpaid intern or volunteer, or a person providing services pursuant to a contract by an employee, other than an agent or supervisor, shall be unlawful if the entity, or its agents or supervisors, knows or should have known of this conduct and fails to take immediate and appropriate corrective action. An employer may also be responsible for the acts of nonemployees, with respect to sexual harassment of employees, applicants, unpaid interns or volunteers, or persons providing services pursuant to a contract in the workplace, if the employer, or its agents or supervisors, knows or should have known of the conduct and fails to take
immediate and appropriate corrective action. In reviewing cases involving the acts of nonemployees, the extent of the employer’s control and any other legal responsibility that the employer may have with respect to the conduct of those nonemployees shall be considered. An entity shall take all reasonable steps to prevent harassment from occurring. Loss of tangible job benefits shall not be necessary in order to establish harassment.
(2) The provisions of this subdivision are declaratory of existing law, except for the new duties imposed on employers with regard to harassment.
(3) An employee of an entity subject to this subdivision is personally liable for any harassment prohibited by this section that is perpetrated by the employee, regardless of whether the employer or covered entity knows or should have known of the conduct and fails to take immediate and appropriate corrective
action.
(4) (A) For purposes of this subdivision only, “employer” means any person regularly employing one or more persons or regularly receiving the services of one or more persons providing services pursuant to a contract, or any person acting as an agent of an employer, directly or indirectly, the state, or any political or civil subdivision of the state, and cities. The definition of “employer” in subdivision (d) of Section 12926 applies to all provisions of this section other than this subdivision.
(B) Notwithstanding subparagraph (A), for purposes of this subdivision, “employer” does not include a religious association or corporation not organized for private profit, except as provided in Section 12926.2.
(C) For purposes of this subdivision, “harassment” because of sex includes sexual
harassment, gender harassment, and harassment based on pregnancy, childbirth, or related medical conditions. Sexually harassing conduct need not be motivated by sexual desire.
(5) For purposes of this subdivision, “a person providing services pursuant to a contract” means a person who meets all of the following criteria:
(A) The person has the right to control the performance of the contract for services and discretion as to the manner of performance.
(B) The person is customarily engaged in an independently established business.
(C) The person has control over the time and place the work is performed, supplies the tools and instruments used in the work, and performs work that requires a particular skill not ordinarily used in the course of the
employer’s work.
(k) For an employer, labor organization, employment agency, apprenticeship training program, or any training program leading to employment, to fail to take all reasonable steps necessary to prevent discrimination and harassment from occurring.
(l) (1) For an employer or other entity covered by this part to refuse to hire or employ a person or to refuse to select a person for a training program leading to employment or to bar or to discharge a person from employment or from a training program leading to employment, or to discriminate against a person in compensation or in terms, conditions, or privileges of employment because of a conflict between the person’s religious belief or observance and any employment requirement, unless the employer or other entity covered by this part demonstrates that it has explored any available reasonable
alternative means of accommodating the religious belief or observance, including the possibilities of excusing the person from those duties that conflict with the person’s religious belief or observance or permitting those duties to be performed at another time or by another person, but is unable to reasonably accommodate the religious belief or observance without undue hardship, as defined in subdivision (u) of Section 12926, on the conduct of the business of the employer or other entity covered by this part. Religious belief or observance, as used in this section, includes, but is not limited to, observance of a Sabbath or other religious holy day or days, reasonable time necessary for travel prior and subsequent to a religious observance, and religious dress practice and religious grooming practice as described in subdivision (q) of Section 12926. This subdivision shall also apply to an apprenticeship training program, an unpaid internship, and any other program to provide unpaid experience for a person
in the workplace or industry.
(2) An accommodation of an individual’s religious dress practice or religious grooming practice is not reasonable if the accommodation requires segregation of the individual from other employees or the public.
(3) An accommodation is not required under this subdivision if it would result in a violation of this part or any other law prohibiting discrimination or protecting civil rights, including subdivision (b) of Section 51 of the Civil Code and Section 11135 of this code.
(4) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(m) (1) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. Nothing in this subdivision or in paragraph (1) or (2) of subdivision (a) shall be construed to require an accommodation that is demonstrated by the employer or other covered entity to produce undue hardship, as defined in subdivision (u) of Section 12926, to its operation.
(2) For an employer or other entity covered by this part to, in addition to the employee protections provided pursuant to subdivision (h), retaliate or otherwise discriminate against a person for requesting accommodation under this subdivision, regardless of whether the request was granted.
(n) For an employer or other entity covered by this part to fail to
engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.
(o) For an employer or other entity covered by this part, to subject, directly or indirectly, any employee, applicant, or other person to a test for the presence of a genetic characteristic.
(p) For a digital marketplace to discriminate against any individual because of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, familial status, or marital status, in receiving, classifying, disposing, or otherwise acting upon applications
to participate with the digital marketplace as a marketplace contractor.
(p)
(q) Nothing in this section shall be interpreted as preventing the ability of employers to identify members of the military or veterans for purposes of awarding a veteran’s preference as permitted by law.
SEC. 3.
Chapter 4.8 (commencing with Section 1080) is added to Part 3 of Division 2 of the Labor Code, to read:CHAPTER 4.8. Digital Marketplace Contractors
1080.
As used in this chapter:(a) “Contractor benefits” means one or more of the following:
(1) Medical care, which may include hospitalization, sickness, and prescription drugs.
(2) Benefits in the event of sickness, accident, or disability.
(3) Liability insurance.
(4) Retirement benefits.
(5) Life insurance.
(6) Vision care.
(7) Dental care.
(8) Compensation during a period of leave, not to exceed 12 weeks during any 12-month period, because of the birth or adoption of a child, to care for a spouse, child, or parent, or because of a serious health condition that makes the contractor unable to work.
(b) “Contractor fee” means the amount earned by a marketplace contractor for each job secured through the digital marketplace, less any gratuities and any service fees charged by the digital marketplace.
(c) “Department” means the Employment Development Department.
(d) “Digital marketplace” or “marketplace” means an organization, including, but not limited to, a corporation, limited liability company, partnership, sole proprietor, or any other entity, that does both
of the following:
(1) Operates a digital Internet Web site or digital smartphone application, or both, that facilitates the provision of services by marketplace contractors or entities to individuals or entities seeking those services.
(2) Does not accept service requests by telephone, by facsimile, or in person at physical retail locations.
(e) “Marketplace contractor” or “contractor” means any person who enters into an agreement with a digital marketplace to use the marketplace’s digital Internet Web site or digital application in connection with the provision of services to individuals or entities seeking these services.
(f) “Marketplace contractor benefit plan” or “benefit plan” means any plan, fund, or program that is funded by contributions from a
digital marketplace and is established and maintained for the purpose of providing contractor benefits to the marketplace contractors who use the digital marketplace.
(g) “Participant” means any marketplace contractor who is eligible to receive contractor benefits under a contractor benefit plan.
(h) “Participating digital marketplace” or “participating marketplace” means a digital marketplace that has elected to contribute to a benefit plan pursuant to Section 1081, except that a digital marketplace shall be deemed a participating digital marketplace only during the period beginning on the date the digital marketplace submits written notice to the department pursuant to Section 1081 and ending on the later of three months following the date the digital marketplace submits notice of the discontinuation of contributions to the department or the date of the final contribution by the
participating marketplace pursuant to Section 1081.
(i) “Plan administrator” means the person or entity so designated by the terms of the plan agreement.
(j) “Plan agreement” means a written agreement between a digital marketplace and a plan administrator that provides for the establishment and administration of a marketplace contractor benefit plan.
1081.
(a) A digital marketplace may elect to contribute to a marketplace contractor benefit plan established to provide benefits to the marketplace contractors who use the digital marketplace. Each election shall be made by providing written notice of the election to the department and by paying a fee to the department, fixed by the department in an amount needed to administer this chapter, but not exceeding five hundred dollars ($500). The department shall use revenues from those fees, upon appropriation by the Legislature, for the administration of this chapter.(b) (1) A digital marketplace that elects to contribute to a benefit plan shall contribute a minimum of ____ percent of the contractor fee for each transaction for
both of the following:
(A) Services provided wholly or partially in the state by resident marketplace contractors.
(B) Services provided wholly in the state by nonresident marketplace contractors.
(2) The contribution amount for each transaction may be indicated on the invoice or billing submitted to the customer for the covered services.
(c) The initial contribution shall be made no later than 45 days following the date the digital marketplace submits the written notice specified in subdivision (a) to the department and shall include the aggregate contribution amount for all subject transactions completed during the first 30 days following the date this notice is submitted. The contributions shall be transmitted in accordance with the terms of the plan
agreement, or, if no plan agreement has been executed, shall be paid into an escrow account and held until a plan agreement has been executed, at which time the amount held in escrow shall be transmitted pursuant to the terms of the plan agreement. Subsequent contributions shall be made on a monthly or quarterly basis in accordance with the terms of the plan agreement.
(d) A digital marketplace that elects to contribute to a marketplace contractor benefit plan shall provide these contributions for a minimum of one year. A participating digital marketplace that elects to discontinue contributions to a benefit plan after the expiration of the initial one-year period shall provide written notice of this election to the department no later than three months before the date of the final contribution by the participating digital marketplace.
1082.
(a) Each participating digital marketplace shall enter into a written plan agreement with a plan administrator. The plan agreement shall require the plan administrator to establish and maintain a benefit plan to provide benefits to the contractors who use the digital marketplace.(b) Every contractor benefit plan shall comply with the following:
(1) Shall be governed by a written instrument that provides a procedure for carrying out the objectives of the plan and the basis on which payments are made to and from the plan.
(2) Shall provide that the plan shall be administered for the exclusive purpose of providing
benefits to participants and their beneficiaries and defraying reasonable expenses of administering the plan.
(3) (A) Except as provided in subparagraph (B), shall maintain an account for each contractor and shall deposit into that account the contributions paid by the participating digital marketplace attributable to the contractor’s aggregate contractor fees for the relevant period, less reasonable administrative costs, not to exceed ____.
(B) A benefit plan may require a contractor to earn a minimum amount in contractor fees, not to exceed ____ dollars ($____), in order to be eligible to receive benefits. A plan with a minimum contractor fee threshold shall provide a mechanism to distribute the contributions paid by the participating digital marketplace attributable to these nonqualifying contractor’s aggregate contractor fees to the participants who
qualified for benefits during the year in which those contributions were paid.
(4) Shall provide a mechanism for participants to do both of the following:
(A) To transfer accrued benefits to another benefit plan established pursuant to this chapter.
(B) To withdraw the monetary value of the accrued benefits, less a reasonable administrative fee and less a withdrawal penalty of ____ percent of the total monetary value of the accrued benefits.
(5) Shall provide for one or more named fiduciaries who, jointly or severally, shall have authority to control and manage the operation and administration of the plan.
(6) May be established or maintained to provide benefits to contractors of multiple
participating digital marketplaces.
(7) Shall ensure that all insurance and retirement policies and plans comply with applicable federal and state requirements.
(8) May include any other provisions for the establishment or maintenance of the plan to the extent not inconsistent with this chapter.
(c) A plan administrator shall remit to the department withdrawal penalties collected pursuant to subdivision (b). These sums shall be used by the department, upon appropriation by the Legislature, in the administration of this chapter or for any other purpose authorized by this code.
1083.
(a) Participating digital marketplaces shall establish a procedure for representatives of the marketplace contractors to meet with representatives of the participating digital marketplaces to discuss issues relating to the operation of the participating marketplace. These issues may include the provision of training to the marketplace contractors and any other issues not otherwise prohibited by state or federal law. These meetings shall be held no fewer than four times per year.(b) Participating digital marketplaces shall not be required to take any action on issues discussed with marketplace contractors during these meetings.
1084.
(a) Notwithstanding any other law, for purposes of the provisions of state and local laws that govern employment, including this code and the Unemployment Insurance Code, a marketplace contractor that offers services through a digital marketplace shall be treated as an independent contractor of the digital marketplace.1085.
(a) A participating digital marketplace may provide education and training, whether directly or through a third-party provider, including by a plan administrator, to marketplace contractors that use the digital marketplace on either of the following subject matters:(1) On the use of the digital marketplace’s digital application or Internet Web site.
(2) On standards and methods for providing the services offered by the marketplace contractor through the digital marketplace, provided that the education and training is offered to the marketplace contractor on a voluntary basis.
(b) A participating digital
marketplace’s election to provide education and training as provided for in this section shall not be considered and is inadmissible for the purpose of determining the independent contractor or employment status of a marketplace contractor that uses the digital marketplace.
1086.
The Legislature finds and declares that the lack of benefits commonly associated with employment for the expanding category of independent contractors who engage in market transactions facilitated by Internet and smartphone applications is a matter of statewide interest and concern. A county, municipality, or other political subdivision, including a charter city or county, shall not enact or enforce any law, ordinance, or rule inconsistent with this chapter.It is the intent of the Legislature to enact legislation relating to portable employee benefits in California.
