Contributors

Christian Scali

Founder and Managing Shareholder

Eric P. Weiss

Principal

Jasmin B. Bhandari

Principal

In California, another year means another set of new employment laws that impose burdens on employers. The 2022 legislative session was no exception, with new laws passed and signed that address employment-related pay disclosure requirements on job postings, required bereavement leave, extended COVID-related leave, and family medical leave, to name a few areas. The good news for California employers is that none of the new laws make revolutionary changes to employee rights or employer responsibilities, but employers nonetheless need to understand these changes and adjust their practices to avoid potential liability in the future. Some laws passed do not go into effect for another year or two, allowing additional time for compliance (such as the cannabis anti-discrimination law).

AB 152—COVID-19 relief

What the law currently requires

All employers with more than 25 employees must provide full-time employees with a maximum of 80 hours of SPSL, which is divided into two “buckets” comprised of up to 40 hours of leave each for different purposes with separate requirements: one bucket when the employee is unable to work related to Covid-19 based on several specific reasons, and another bucket for positive covid-19 tests. Employers can cap vaccine or booster related leave to 3 days or 24 hours for each instance. There is specific methodology to calculate leave allotment for part-time or variable schedule employees.

How this bill changes the law

This bill went into effect when signed on September 29, 2022. It extends the time during which employees can claim supplemental paid sick leave for Covid-19 related reasons, from September 30 to December 31, 2022, but does not add any more available time off. So, any employee that has already exhausted this leave is not entitled to a new leave allotment. Further, the reasons for leave remain unchanged. As with the earlier 2022 law, the amount of Covid leave used must be reflected on the paystub.

This bill allows the employer to require a third Covid test within 24 hours after a second positive test. Additionally, employers do not have to provide additional SPSL to an employee who tests positive and refuses to provide documentation or submit to the aforementioned testing.

The law adds a California Small Business and Nonprofit COVID-19 SPSL Relief Grant Program to assist qualified small businesses or nonprofits that are incurring costs for SPSL up to $50,000. It will be repealed on January 1, 2024.

AB 257—Fast food facilities & employment

What the law currently requires

Currently, there is no council directing legislation for the entire “fast food” industry. However, California does have more employee-favorable laws applicable to restaurant workers such as not allowing tips to be used to meet minimum wage (unlike federal law)- workers must be paid minimum wage independent of tips.

How this bill changes the law

The Fast Food Accountability and Standards Recovery Act, also known as the FAST Recovery Act enacts “sectoral” legislation – affecting an entire industry. It creates a 10-member unelected group (the “Fast Food Sector Council”) that will be able to set industry-wide standards for hours, wages, and other working conditions. At this time, the bill is limited to fast-casual (pay before you eat) food establishments that have a 100 or more locations nationally.

The bill authorizes covered restaurant workers to bring causes of action for discharge, discrimination, or retaliation for exercising rights established by the FAST Recovery Act. It also permits cities or counties with populations over 200,000 to establish local councils to provide recommendations to the state council.

AB 1041—CFRA and paid sick leave for designated person

What the law currently requires

The CFRA (similar to federal FMLA leave) currently provides eligible employees of covered employers (with more than 5 employees) up to 12-weeks unpaid, job-protected leave for certain medical and family bonding reasons. These include time off to take care of relatives with serious medical conditions. The law recently expanded to include care for “parents-in-law.”

The Healthy Workplaces, Healthy Families Act (HWHFA), California’s Paid Sick Leave law, entitles employees who work for an employer for at least 30 days, to paid sick days, including to care for the employee’s family member.

How this bill changes the law

This bill further expands the categories of people for whom an employee may take leave, to include a “designated person” identified at the time of the leave request. A “designated person” is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship,” and includes domestic partners. An employer may limit an employee to one designated person per 12-month period.

AB 1949—Bereavement leave

What the law currently requires

Currently, private employers do not have to provide bereavement leave, either paid or unpaid, job-protected or not. Employees can simply ask to use existing PTO or vacation time to make funeral arrangements or mourn. While not required, many employers do offer paid or unpaid bereavement leave in their company policies.

Current law already permits certain state employees up to three days of paid bereavement leave, with an additional two days permitted if the death is out of state.

How this bill changes the law

This bill provides eligible employees (employed at least 30 days) up to 5 days job-protected, bereavement leave upon the death of a qualifying family member (as defined in the CFRA). This leave (under CFRA) is separate and distinct from the 12-weeks medical/family leave permitted under CFRA; it is a new form of protected leave under the CFRA. Further, the employee can use bereavement leave for each occurrence (death); there does not appear to be a limit. The leave can be intermittent, but must be completed within 3 months of the family member’s death.

If the employer has an existing (paid or unpaid) bereavement policy, the leave may be taken under that policy (subject to the remaining days being unpaid, if the existing policy provides for less than 5 days). If there is no existing policy, the leave can be unpaid but the employee can use other PTO to provide pay for this leave. So, if the existing policy is 3 paid days, the employee would be entitled to those, plus 2 unpaid days (able to use accrued PTO). Employers can ask for documentation to support the leave, but must keep the documentation confidential and cannot retaliate for requesting leave.

AB 2183—Agricultural labor relations

What the law currently requires

Currently, farmworkers do have the right to unionize. Since 1975, the California Agricultural Labor Relations Board provides state oversight for labor practices for farms across the state, allowing farmworkers to unionize in secret ballot elections at polling places designated by the Board. However, some farm workers felt there was resistance to unionization & discrimination for trying to do so.

How this bill changes the law

The Agricultural Labor Relations Voting Choice Act gives agricultural workers the option to vote by mail in union representation elections that were previously required to be held in person. It will make it easier for farmworkers to unionize. The bill was supported by President Biden. Governor Newsom signed it with conditions such as striking out half the measure.

AB 2188—Discrimination in employment

What the law currently requires

Currently, employers can conduct pre-employment drug testing, or testing on suspicion. They can also have a drug and alcohol free workplace policy. Although medical & recreational marijuana use is legal under California law, since it is still illegal federally, employers were able to take action based on drug testing indicating any marijuana use – such as non-psychoactive cannabis metabolites in the person’s system (urine, hair, blood, fluids etc.).

How this bill changes the law

This bill, effective in January 2024, affords marijuana users special protections. Specifically, it stops employers from discriminating against job applicants or taking adverse action against employees for their use of cannabis off the job and away from the workplace. The bill also stops employers from considering (in employment decisions) results of pre-employment or other drug tests that indicate the presence of non-psychoactive cannabis metabolites in the person’s system (urine, hair, blood, fluids etc.) particularly because these don’t indicate whether a person is currently impaired (the way a blood alcohol test does) and because such metabolites can stay in one’s system long after the last use.

Employers can still conduct preemployment drug screenings and take action based on THC-positive testing (because that is the psychoactive ingredient in marijuana). Further, employers can still maintain a drug-and-alcohol-free workplace. And employees cannot use, be impaired by, or possess cannabis on the job. Moreover, this new section of the law does not apply to an employee in the building and construction trades, nor to applicants or employees hired for positions that need a federal government background check or security clearance.

SB 1162—Employment

What the law currently requires

California has recently passed other pay transparency laws and laws promoting pay equality such as the California Fair Pay Act and changes thereto, to require equal pay regardless of gender, race, and ethnicity. Another recent law also prohibits asking about salary history on job applications/interviews. And employers cannot prohibit employees from discussing their wages.

A 2020 California law already requires companies with 100 or more direct-hire employees (with at least one employee in California) to submit demographic data to the DFEH (now CRD).

How this bill changes the law

This bill, effective January 2023, requires companies with 15 or more employees to disclose pay ranges on all job postings for in-state jobs. It also requires employers of all sizes to provide salary ranges for existing employees, upon request.

Companies with 100 or more employees hired through third-party staffing agencies will need to report pay data to the California Civil Rights Department for those workers, divided by race, gender, and ethnicity. Pay data will not be posted publicly but aggregate data will be posted for public awareness and accountability.

The Labor Commissioner must investigate complaints alleging violations of the pay disclosure and allows the Labor Commissioner to order a civil penalty of $100-$10,000 per violation. No penalty will apply if it is an employer’s first violation and they show that all job positions have been updated with the pay scale.

Employers must maintain records by job title and wage rate history for every employee during employment and for three years thereafter. Failure to do so create a rebuttable presumption in favor of the employee’s claim, similar to other record-maintenance requirements (i.e., time records).

SB 1044—Emergency conditions and retaliation

What the law currently requires

There is no specific law governing employee rights in an emergency situation. Employers may handle it differently, per their own policies, needs, and threat assessment.

How this bill changes the law

This bill prohibits an employer, in the event of a state of emergency or an emergency condition, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace within the affected area because the employee feels unsafe. Furthermore, employees would be permitted to leave work regardless of existing health and safety standards and regardless of whether or not the employer has provided health and safety protections. This law does not apply to first responders and other medical/care providing employees.

The bill also stops an employer from preventing employees (including of public entities) from accessing their mobile phone or other communication device for seeking assistance, assessing safety, or communicating regarding their safety. The employee has to notify the employer of the emergency condition and these provisions end when the imminent and ongoing risk of harm has ended.

The health pandemic is specifically excluded as a qualifying emergency condition, which is a natural disaster or criminal act.

AB 2693—COVID exposure notice requirements

What the law currently requires

Starting January 1, 2021, if an employer learns that an employee has tested positive for COVID-19, the employer needed to provide employees, their union representatives, and the employer of any subcontracted employees, with notice of the positive case and provide special notice those who have been exposed to COVID-19. This notice had to go out to employees within one business day.

How this bill changes the law

This bill amends Labor Code section 6409.6 and extends its provisions until January 1, 2024. It goes into effect January 2023. The main change is employers will be able to post a notice of potential Covid-19 exposure at the site (and on portals), instead of providing written notice to each employee. Within one business day of the notice of potential exposure, the employer must prominently display a notice in all places where notices to employees concerning workplace rules or regulations are customarily posted (including on employee portals). The notice should cover:

• Dates on which an employee with a confirmed case was on site;
• Location of exposure;
• Contact information to get information re Covid-19 benefits and leaves; and
• Contact information re cleaning and disinfection plan.

The notice must be posted for at least 15 days and in English and any language understood by the employees. The employer must log all dates the notice was posted as required.

Employers will no longer be required to report an outbreak to the local public health agency. The definition of “close contact” between Dept. of Public Health and Cal/OSHA was harmonized.

AB 1601—Call centers and California WARN Act

What the law currently requires

Cal WARN (Worker Adjustment and Retraining Notification Act) protects employees by requiring employers to give a 60-day notice to the affected employees and both state and local representatives before a plant closing or mass layoff.

How this bill changes the law

AB 1601 provides additional Labor Commissioner enforcement mechanisms for Cal WARN Act notice violations. It also prohibits an employer from ordering the relocation of its call center, unless 60 days before the order takes effect, the employer gives written notice to affected employees, the Employment Development Department (EDD), the local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff would occur.

A “Call Center” is a facility or other operation where employees primarily receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions. Additionally, relocation includes when the employer intends to move its call center to a foreign country.

If the employer fails to provide notice regarding a relocation of its call center, the employer cannot be awarded or renew state grants or state-guaranteed loans for 5 years. They would also be ineligible to claim a tax credit for 5 taxable years as of the date that the list is published unless an appropriate agency waives the ineligibility.

This bill requires the EDD to create and publish, twice a year, a list of employers that provided notice to relocate a call center as well as provide workforce services to call center employers and their employees who are laid off as a result of a relocation.

SB 523—Reproductive health decisionmaking

What the law currently requires

This law is related to several other bills regarding reproductive autonomy, in response to many other states restricting access to care for reproductive purposes. It revises the FEHA (Fair Employment and Housing Act), which governs employees’ rights to be free from discrimination, harassment, and retaliation.

How this bill changes the law

Effective January 2024, the Contraceptive Equity Act of 2022 makes it unlawful to discriminate against an applicant or an employee based on reproductive health decision-making, or to require these individuals to share information related to such decision-making.

It also expands birth control access regardless of gender or insurance coverage status (via the Government Code): by requiring health plans to cover certain over-the-counter birth control as well as coverage for vasectomies and related services.