Brownstein Client Alert, January 11, 2021
In a bill passed with little fanfare, Assembly Bill (“AB”) 1963 [modified California’s Child Abuse and Neglect Reporting Act (Penal Code §§ 11164 - 11174.3) (the “Act”) to impose child abuse reporting requirements on certain supervisors and human resources professionals, as well as mandating training. The new requirements, which became effective Jan. 1, 2021, apply to entities with five or more employees that also employ minors. Under the Act as amended, certain human resources professionals and non-HR supervisors are now designated as “mandated reporters” as to minor employees. AB 1963 does not modify or limit mandatory reporting requirements that may be applicable under other sections of the Act.
The amended law requires significant adjustments for a wide range of employers, potentially including retail shops, grocery stores, movie theaters, educational and recreational camps, tutoring/test preparation and educational services, production companies, entertainment industry professionals (e.g., directors, hair and makeup, wardrobe, production assistants), restaurants and other hospitality companies, among others, that traditionally employ minors on a part-time or seasonal basis. Such employers now will need to train employees to comply with strict reporting requirements, violation of which carries criminal penalties.
HR Representatives and Non-HR Supervisors Are Mandated Reporters. For purposes of these new requirements, “human resource employees” are those employees designated by the employer to accept complaints of misconduct as required by the Fair Employment and Housing Act. Supervisors covered by these new obligations include adults whose duties require direct contact with and supervision of minors in the performance of the minors’ duties in the workplace. (See Penal Code § 11165.7.) Importantly, these definitions are based on an employee’s duties, not title, and cover employees who may not have a human resources role. Human resources employees are mandated reporters of “child abuse,” while supervisors’ reporting responsibilities are limited to “sexual abuse,” as defined in Penal Code § 11165.1.
What Does It Mean to Be a Mandated Reporter? Mandated reporters must promptly report known or reasonably suspected child abuse or neglect to designated authorities in the manner specified in the Act. Child abuse includes acts and omissions constituting physical abuse, sexual abuse (including both sexual assault and sexual exploitation), willful cruelty or unjustified punishment, unlawful corporal punishment, injury and neglect. As noted above, human resource employees are subject to the broader reporting requirements, while the obligation of covered supervisors is limited to reporting sexual abuse, as defined by statute.
Penalties. Failure by a mandated reporter to report an incident of known or reasonably suspected child abuse or neglect is a misdemeanor punishable by up to six months in county jail, a fine of $1,000, or both. This is increased to up to one year in jail and a fine of up to $5,000 (or both) if the failure to report is willful, or the person impedes or inhibits the report, where the abuse or neglect results in death or great bodily injury. If the mandated reporter intentionally conceals the failure to report, the offense continues until the appropriate agency discovers it.
Training and Documentation Requirements. Covered employers must provide training to mandated reporters. This must include training in both the identification and reporting of child abuse and neglect. The requirement may be met by completing the general online training for mandated reporters offered by the Office of Child Abuse Prevention in the State Department of Social Services.
As newly mandated reporters, covered supervisors and HR representatives also must receive and sign specified notices of their obligations. The notice requirements of Penal Code section 11166.5 specify that each mandated reporter, prior to commencing employment and as a prerequisite to employment, sign a statement on a form provided by the employer to the effect that he or she has knowledge of the provisions of Section 11166 and will comply with those provisions. The statement must inform the employee that he or she is a mandated reporter, and must inform the employee of the reporting obligations under Section 11166 and confidentiality rights under Section 11167(d). In addition, the employer must provide a copy of Penal Code sections 11165.7, 11166 and 11167 to the employee. The employer should retain a copy of the signed documentation.
Employer Takeaways: Companies that employ minors may wish to revisit that practice in light of these sweeping new requirements. Entities that do continue to employ minors must ensure that newly designated mandated reporters are aware of their obligations, receive and acknowledge appropriate documentation and are provided with required training. Employers also would be wise to implement internal policies and protocols on these issues in conjunction with legal counsel to ensure compliance.
This document is intended to provide you with general information regarding modifications to California’s Child Abuse and Neglect Reporting Act. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.
The information in this article is accurate as of the publication date. Because the law in this area is changing rapidly, and insights are not automatically updated, continued accuracy cannot be guaranteed.