October 2022 California Labor and Employment Law Update

The October 2022 release of Essentials marks the end of the California legislative session. As a helpful summary, we’ve outlined the key provisions of many of California’s new employment laws for 2023:

The most significant, generally applicable new laws

SB 1162 – Payment Transparency Act

Existing law requires companies with more than 100 employees to submit certain wage data to the Department of Fair Employment and Housing. SB 1162 requires companies with more than 15 employees to post salary scales on job titles and to provide salary scales to current employees upon request. In addition, SB 1162 requires wage data reports for companies with more than 100 employees (including employees through contract contractors) to include the median and average hourly rate for each combination of race, ethnicity, and gender within each job category for employees.

SB 1162 also requires employers to keep records of each employee’s job title and wage history for the duration of employment plus three years after termination of employment so that the California Labor Commissioner can determine if there is a pattern of wage irregularities. If an employer fails to comply with the requirements of SB 1162, the aggrieved party may file a written complaint with the state’s Office of Labor Standards Enforcement (DLSE). The injured party can also file a civil lawsuit. For violations, the DLSE may impose a civil penalty of between $100 and $10,000 per violation. The DLSE will not assess a penalty for a first violation if the employer can demonstrate that all job postings for open positions have been updated to include the required pay scale information. However, if the employer does not keep such records, there is a rebuttable presumption in favor of the employee’s wage discrepancy claim.

AB 2188 – Prohibits employers from discriminating against off-the-job cannabis use

AB 2188 amends California’s Fair Employment and Housing Act (FEHA) to make it illegal for an employer to “discriminate against a person in the hiring, termination, or any conditions of employment” because of an employee’s off-duty and off-duty use of cannabis or for failure to comply with an employer-mandated drug screening. If an employer wants to punish an employee for cannabis-related conduct, they must prove that the employee was either in possession of or under the influence of cannabis in the workplace. The new law does not apply to construction workers; or applicants or employees hired for positions that require a federal government investigation or security clearance in accordance with regulations issued by the United States Department of Defense. It does not affect the employer’s rights or obligations under federal law or regulation.

AB 1041 – Expands family leave to include non-family members

The California Family Rights Act makes it an unlawful employment practice for a California employer with five or more employees to refuse to comply with an employee’s request (who meets the specified requirements) to take up to 12 work weeks in any 12-month period. for family care and medical leave. AB 1041 expands the class of persons for whom an employee may take caregiving leave to include a designated person who would be identified at the time the employee requests the leave. A designated person can be someone the employee considers to be the equivalent of a family relationship. The employer will be able to limit the employee to one designated person per 12-month period.

SB 523 – Contraceptive Equity Act of 2022

Effective January 1, 2024, SB 523 amends FEHA to prohibit employers from discriminating based on “reproductive health decision-making” or requiring disclosure of reproductive health decision-making as a condition of employment. Reproductive health decision-making includes, but is not limited to, decisions to use or access a particular reproductive health drug, device, product, or medical service. In addition, SB 523 requires health care plans to cover over-the-counter contraceptives and prohibits plans from imposing any cost-sharing requirements on vasectomies.

COVID

AB 152 – Supplemental Paid Sick Leave COVID-19

AB 152 extends the current iteration of SPSL requirements for COVID-19 leave from September 30, 2022 to December 31, 2022. Importantly, it does not entitle employees to a new SPSL bank.

AB 2693 – Exposure to COVID-19

Labor Code section 6409.6 requires employers to prominently display to employees a notice related to COVID-19 containing the following information: (i) the dates that the employee with a confirmed case of COVID-19 was on the premises at the time of infection, (ii) the location of the exposure, including the department , floor, building, or other area, but the location need not be so specific as to permit the identification of individual workers, (iii) contact information for employees who will receive information about COVID-19 benefits to which the employee may be entitled under applicable federal, state, or local laws, and (iv) contact information for employees who receive a cleaning and disinfection plan that the employer implements in accordance with the guidelines of the federal Centers for Disease Control and Prevention and the COVID-19 Prevention Program under the Cal-OSHA COVID-19 Interim Standards.

Notice can now also be given in a way that the employer normally uses to communicate about employment law matters, for example by email. The requirements of section 6409.6 were set to expire on January 1, 2023 and are extended to January 1, 2024 by AB 2693.

AB 1751 – Extends COVID-19 workers compensation eligibility by two years

AB 1751 expands the current rebuttable presumption, which places the burden on California employers to prove that specific employees did not contract COVID-19 at work. AB 1751 extends the presumption to January 1, 2025. AB 1751 provides that if an employee has paid sick leave benefits specifically available for COVID-19, those benefits must be exhausted before any temporary disability benefits under the workers’ compensation system become payable.

Compliance

AB 257 – FAST Recovery Act

The FAST Recovery Act (FAST Act) establishes within the Department of Industrial Relations a Fast Food Council (Council) consisting of ten members (a representative of the Department of Industrial Relations, two representatives of fast food franchisors and franchisees, two representatives of fast food restaurant employees, two restaurant employee attorneys fast food, a representative from the governor’s office). The board must promulgate minimum standards for employees in fast food restaurants, including standards for wages, working conditions and training. A fast food chain is defined as a collection of restaurants consisting of 100 or more establishments nationally that share a common brand. At least once every three years, the board must conduct a full review of the adequacy of the minimum health, safety and employment standards of fast food restaurants and issue, modify or withdraw the standards as necessary. The minimum wage set by the council for 2023 cannot exceed $22.

The FAST Act also provides protection to fast food employees from discrimination or retaliation for disclosing public health or safety information.

AB 2777 – Concealed Sexual Assault Claims Against Employers: One Year Period for Reviving Statutory Statute of Limitations

AB 2777 creates a one-year statute of limitations to revive claims against employers who claim they covered up sexual assault. Claims that would otherwise be time-barred before January 1, 2023 may be brought between January 1, 2023 and December 31, 2023. Plaintiffs must allege the following: (A) the plaintiff was sexually assaulted; (B) one or more entities are legally liable for damages resulting from the sexual assault; and (C) an entity or entities, including but not limited to their officers, directors, representatives, employees or agents, who have engaged in concealment or attempted to conceal a prior instance or allegation of sexual assault by the alleged perpetrator of such abuse. “Cover-up” means a concerted effort to conceal evidence of a sexual assault that motivates an individual to remain silent or prevents information regarding a sexual assault from becoming public or disclosed to a plaintiff, including, but not limited to, the use of a non-disclosure agreement or agreement about confidentiality. AB 2777 also revives any related claims, including but not limited to wrongful termination and sexual harassment, arising out of the sexual assault underlying the claim. The bill applies to sexual assault claims where the assault occurred on or after the individual’s 18th birthday.

SB 1044 – State of emergency: Employer retaliation

In the event of an emergency, SB-1044 prohibits an employer from taking or threatening to take adverse action against any employee for refusing to report to or leaving a workplace or workplace in an affected area because he or she has a reasonable belief that the workplace or workplace is unsafe unless otherwise. A state of emergency means the existence of either: (i) conditions of disaster or extreme threat to the safety of persons or property in the workplace or workplace caused by natural forces or criminal activity; or (ii) an order to evacuate the workplace, the workplace, the worker’s home, or the worker’s child’s school as a result of a natural disaster or crime.

Furthermore, an employer may not prevent any employee from accessing an employee’s mobile device or other communication device for the purpose of seeking emergency assistance, assessing the safety of a situation, or communicating with a person to confirm their safety. The employee is obliged to notify the employer of an emergency situation that requires the employee to leave or refuse to come to the workplace or workplace.

These provisions do not apply to certain employees, such as a first responder or an employee who is required by law to render aid or remain on the premises in the event of an emergency.

AB 1601 – Employee protections for mass layoffs, transfers, and terminations for call centers

AB 1601 expands the California Worker Adjustment and Retraining Act (Cal/WARN Act) to prohibit a call center employer from ordering the relocation of its call center (for example, by moving it out of the country) without complying with the above Cal/WARN Act requirements. In addition, it requires the California Department of Employment Development to publish a list of call center employers who have terminated and provide workforce services to the employer and the call center.

AB 1788 – Seeks to make hotels, motels liable for sex trafficking

AB 1788 establishes a cause of action against hotels if a superior hotel employee either knew of the nature of sex trafficking or acted recklessly and disregarded the activity and failed to timely notify law enforcement, or if the employee benefits from sex. human trafficking in the hotel. AB 1788 allows city, county, or city and county attorneys to seek civil penalties of $1,000 for a first violation, $3,000 for a second violation in the same calendar year, and $5,000 for a third and any other sex trafficking violation within the same calendar year .

AB 1949 – Mandatory leave on death

AB 1949 requires public sector employers and private employers with five or more employees to provide employees (who have at least 30 work days) up to five days of unpaid leave upon the death of a family member. If the employer does not have a paid death policy, the leave is unpaid, except that the employee may use vacation, personal leave, accrued and available sick or compensatory leave otherwise available to the employee. The leave must be completed within three months of the date of death.

SB 951 – Revision of formula for paid family leave and state disability insurance for lower wage earners

SB 951 removes restrictions on workers’ compensation in the case of disability pension compensation and increases the wage reimbursement formulas under the State Paid Family Leave (PFL) and State Disability Insurance (SDI) programs.

Currently, those on lower incomes are entitled to up to 70% of their regular wages under PFL and SDI. From 1 January 2025, these lower wage earners will be entitled to 90% of their regular wages under these schemes.

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