Another legislative session has come to a close, and as expected, there is already a great deal of new law updates set to take effect on January 1, 2022. The California Legislature was presented with many challenges this past year, many pertaining to the ever-evolving COVID-19 pandemic, and the governor saw several hundred bills pass his desk. Many of these bills will directly impact California employers in 2022. To help you prepare for these important changes, here is a guide to some of the new California employment laws that employers need to be aware of.
California Family Rights Act (CFRA)
The California Family Rights Act (CFRA) states that employees who have been employed for at least 12 months and have worked 1,250 hours of service within the last 12 months can take a total of 12 weeks of job-protected leave within a 12-month period.
Assembly Bill 1033 (AB 1033)
AB 1033 builds upon and polishes 2022 changes to the CFRA. An important clarification is that an employee’s leave may be taken to care for a parent-in-law. It also revises provisions to the small employer mediation program by making participation a prerequisite to filing a civil action, requiring DFEH to inform employees of this requirement on all right-to-sue notices, and permitting smaller employers to stay in litigation to pursue mediation.
Safety and Wage Enforcement
SB 606 expands the enforcement authority of the California Division of Occupational Safety and Health (Cal/OSHA) by adding two new violation categories: Enterprise-wide violation and Egregious violations. A violation is considered enterprise-wide if the employer has enacted a policy or procedure that violates safety rules. Egregious violations are defined as willful or reckless action from an employer who violated occupational safety.
AB 1003 specifies under the California Penal Code that the criminal penalty of wage theft greater than $950 for one employee or more than $2,350 for two or more employees in a consecutive 12-month period is punishable as grand theft. Prosecutors may charge this as a misdemeanor or a felony when there is an intentional deprivation of waves, gratuities, benefits, or compensation.
SB 572 is an additional Labor Code provision that permits the California Labor Commissioner to create a lien on real property, as an alternative to a judgment lien, to secure amounts owed to the Commissioner under any final citation, findings, or decision.
Settlement and Severance Agreements
A recent revision to SB 331 amends restrictions on the use of non-disclosure provisions in cases of workplace harassment or discrimination based on any characteristic protected under the Fair Employment and Housing Act (FEHA). Though employees aren’t prohibited from discussing a case, employers can use clauses to prevent disclosure of the amount of settlement applied to severance agreements.
AB 654 is an emergency statute that went into immediate effect on October 5, 2021. It corrected inconsistencies in AB 685 terminology and clarified employers’ COVID-19 workplace exposure notice and reporting requirements. Notable changes include a revision to the time frame that employers must give notice of an outbreak and a requirement to send notice to employees who were on-premise within the infectious period.
Signed into immediate effect on October 4, 2021, SB 336 requires the California Department of Public Health (CDPH) or local health officers to issue mandatory COVID-19-related guidance. They must publish the order or guidance on their website along with the effective date and must also include the option to sign-up for an email list to receive any notification updates to the order or guidance.
Cal/OSHA Workplace COVID-19 Mandates
In September of 2021, Cal/OSHA hosted an advisory committee meeting to discuss the possibilities of permanent vaccination regulations. Though this discussion was only intended to shape a draft of what the Cal/OSHA Board might approve in 2022, we can expect some changes to go into effect regarding workplace COVID-19 mandates in California. A federal appeals court on Nov. 12 ordered OSHA to stop taking steps to implement a mandate on private employers for now but said that all other requirements (such as providing paid-time to get vaccinated or masking unvaccinated workers) under OSHA rules will take effect on December 5, 2021.
Employee Wage and Hour Law
AB 1506 and 1561
Last year, the Legislature made substantial revisions to employee classification processes by codifying the “ABC Test” adopted by the California Supreme Court in a 2018 case. AB 1506 and 1561 make small adjustments to the law by revising the “data aggregator” exception for the ABC Test and extending the exceptions for specific industries until December 31, 2024.
SB 657 states that whenever an employer is required to physically post information meant to apprise employees of their rights under applicable statutes, they may distribute workplace notices electronically. This does not invalidate an employer’s obligation to post physical copies of such notices in the workplace.
SB 807 modifies Department of Fair Employment and Housing (DFEH) enforcement procedures by including new processes for when the DFEH can appeal adverse superior court decisions. It also extends record retention requirements for personnel records and extends the time an individual can file a civil action by tolling that period during DFEH investigation.
AB 701 specifically targets warehouse distribution centers and larger employers who meet certain criteria. Qualifying employers must provide each nonexempt employee with a written quota that includes details on daily tasks they are expected to perform, materials produced or handled, and any potential adverse employment actions. However, quotas cannot violate compliance with meal or rest periods, use of restrooms, or health and safety laws.
SB 62 requires that garment manufacturers and “brand guarantors” who contract with another person for the performance of garment manufacturing to be jointly and severally liable for wage violations of employees in the supply chain. It also prohibits the practice of piece-rate compensation, unless covered by a valid collective bargaining agreement.
Urgency measure SB 93 applying to various hospitality and building services went into effect on April 16, 2021. It instituted a “right of recall” for certain employees who were laid off during the COVID-19 pandemic. Under this new law, covered employers who are hiring for new positions must first offer the position to a laid-off employee who qualifies or held the same or similar position prior to the time of layoff.
AB 73 expands on last year’s SB 275 personal protective equipment (PPE) bill that established a statewide PPE stockpile. This law expands the scope to include wildfire smoke events as a health emergency and includes agricultural workers in the definition of essential workers. Additionally, it is mandatory for Cal/OSHA to review and update its wildfire smoke training requirements.
SB 362/AB 1407
New laws SB 362 and AB 1407 both impact healthcare employers. As a result of the high demand and time commitment for COVID-19 vaccinations at pharmacies, SB 362 prohibits chain community pharmacies from instituting quotas for the number of vaccinations that pharmacists or technicians are required to perform on duty. In correlation with the healthcare industry, AB 1407 requires that hospitals and nursing education programs append implicit bias training in nursing education.
California’s Private Attorney General (PAGA) allows discontented employees to raise claims on behalf of themselves and other employees for wage and hour violations. SB 646 offers as an exception to PAGA for janitorial employees covered by a collective bargaining agreement that meets certain criteria.
The California Legislature is taking employment relationships and regulations more seriously every year. To protect both themselves and their employees and stay consistently compliant, employers should not only review but understand how to apply this batch of new employment laws. If you are concerned about any of the above legal requirements or have any further questions, please consult our team at Hackler Flynn & Associates.
DISCLAIMER: Content within this post should not be considered legal advice and is for informational purposes only. Communications made through this post do not create an attorney-client relationship. Hackler Flynn & Associates is not responsible for any content that you may access from third-party resources that may be accessed through or linked to this post. Hackler Flynn & Associates is only licensed to practice in California.
Your html code will go here