There have been several modifications to employment legislation in recent years. Employers must be aware of these changes in the law to maintain compliance and keep out of trouble.
In California, a new legislative session ended, and many new law revisions were already going into effect on January 1, 2022.
In recent months, the COVID-19 pandemic has been a significant source of difficulty for the California Legislature, and the governor has seen several hundred laws pass through his desk. In 2022, many of these measures immediately affected California employers.
For California employers, a new year means employment law updates. Employers in California will want to start updating employee handbooks and policies immediately so that they are ready to abide by these new regulations when most of them take effect on January 1, 2023.
Here are five recent employment legislation employers in California must be aware of.
Importance of Employment Law Updates
Unfortunately, incidents of prejudice or harassment happen frequently all around us. These occurrences mainly occur at work. The government has established rules to ensure that such problems do not arise in the workplace. Employment law is a category of legislation that is very significant in the business world.
Employees may benefit from speaking with an employment lawyer to learn their legal options if they believe they have been sexually harassed, discriminated against because of their gender, color, or another trait, or think they were wrongfully terminated.
In this case, Bohm Wildish & Matsen, LLP is one of those professional firms which can provide you with the best services relating to employment laws.
Payment, discrimination, recruiting, and working conditions are also some of the critical issues on which employment law primarily focuses. Additionally, it determines when an employer may hire workers and when an employee may begin working.
A company must have appropriate employment legislation to guarantee a secure and productive workplace. A severe violation of the terms of this legally binding agreement may have legal repercussions.
Employment regulation's role in supporting our economy cannot be emphasized. They have developed over time to reflect the ideals of equality for all individuals and the values our society holds dear.
Businesses must implement best practices to safeguard the safety of the organization and its employees because when they break the law, they risk severe penalties from the government and legal action.
Employment Law Updates in 2022
The protection of employees' rights is the primary objective of employment laws. It guarantees that each employee is treated fairly and gives them a sense of security.
Both state and federal law safeguard their rights. Businesses must act within the confines of the government's established employment legislation. The ones from 2022 that have been updated are listed below.
On October 5, 2021, AB 654 became law immediately effective in an emergency. It clarified employers' COVID-19 workplace exposure notice and reporting duties and fixed AB 685 language errors. The time employers must notify of an outbreak has been extended, and informing employees on-site throughout the infectious period is now necessary.
Employers must report a COVID-19 outbreak to the regional public health office within 48 hours or one business day, whichever comes first.
The measure also broadens the list of licensed businesses, such as community clinics, adult day health centers, community care facilities, and child daycare facilities, excluded from employers' COVID-19 outbreak reporting obligations.
Employers must comply with the following legal requirements within one working day or 48 hours of the alert, whichever is later:
- In writing, inform all staff members and subcontracted workers on the property during the infected period that they may have been infected with COVID-19.
- Inform the exposed workers of any COVID-19-related benefits to which they may be entitled under relevant federal, state, and local laws. This includes workers' compensation perks, corporate sick leave, COVID-19-related leave, government leave, additional sick leave, and security measures against retaliation and discrimination.
- Inform the employers of subcontractors whose employees were exposed about the disinfecting and cleaning plan the employer would follow.
Following Governor Newsom's signing of Assembly Bill 152 (AB 152), California's COVID-19 supplemental paid sick leave (SPSL) has been available through December 31, 2022. Notably, the law increases employees' time to use any excess break (of the 80 hours allocated) that has not yet been spent this year rather than creating a new leave allocation.
In addition to changing the existing leave rules, AB 152 also establishes the SPSL Relief Grant Program and a program to reimburse expenses for qualified NGOs and small enterprises that provide COVID-19 SPSL. For legitimate COVID-19-related causes, SPSL offers two banks of leaves, each 40 hours long.
Only if an employee presents proof that they or a close relative has tested positive for COVID-19 is the second bank made available.
Employees who have already used up their 2022 leave allocation may be compelled to take further leave. Employers must also consider whether the employee would be eligible for exclusion pay under the still-applicable Cal-OSHA Emergency Temporary Standards owing to their exposure or a COVID-19 sickness.
Cal/OSHA Workplace COVID-19 Mandates
Due to an Executive Order issued by Gov. Newsome, which initially took effect on November 30, 2020, the California Division of Occupational Safety and Health (Cal/OSHA) Standards Board reinstituted its COVID-19 Emergency Temporary Standards on April 21, 2022.
Beginning May 6, 2022, a new version of ETS took place, lasting through December 31, 2022. The ETS mandates employers to design, execute, and manage a COVID-19 Prevention Program, among other things, for any employees not protected by Cal/Aerosol OSHA's Transmissible Disease Standard or employees working alone or at home.
California employers must be aware of several substantial changes, even if most of the present ETS will remain similar. Employers should review the most recent guidance from the California Department of Public Health (CDPH) and create, enforce, and maintain efficient policies and procedures to properly assess the effectiveness of current COVID-19 prevention measures in the workplace and the need for extra steps to prevent or lessen the risk of COVID-19 transmission.
Employment Wage and Hour Law
In particular, AB 1003 criminalizes grand theft when an employer "intentionally" steals pay, which now includes gratuities over $950 (from any one employee) or $2,350 (from two or more employees) in any successive 12-month period.
The measure expressly permits the recovery of wages, bonuses, incentives, or other compensation subject to legal action under these clauses as restitution. Independent contractors are considered employees under this law.
If an employer fails to pay employees or independent contractors their total earnings while knowing that such payments are due and obligated under AB 1003, such failure constitutes wage theft.
According to the Penal Code section 487m amendment, independent contractors are comprised of the definition of "employee" for the new law's objectives, and the employing entities of independent contractors are included in the definition of "employer."
Businesses that incorrectly define workers as independent contractors may also be subject to legal penalties. Additionally, AB 1003 permits workers and independent contractors to claim any earnings, bonuses, incentives, or other remuneration that target a section 487m prosecution as restitution.
This bill stipulates that in any situation when an employer is compelled to publish information physically, the employer may also send the linked document or documents to employees via email. According to the bill, this does not change the employer's duty to publish the required notice.
On January 1, 2022, Senate Bill 657 (SB 657) went into force. Despite the possibility that SB 657 could permit the electronic delivery of notices needed by California law via email, this did not relieve employers of their duty to post posters in the workplace.
The visible posting obligation extended to the employee's house if they worked remotely. You must provide your staff instructions to physically mail the notices if you want to deliver messages electronically.
While a mandated or optional dispute settlement is ongoing, this bill extends the time for the California Department of Fair Employment and Housing (DFEH) to bring a civil action following the FEHA.
The time for plaintiffs to file their civil actions under specific regulations would also be tolled when a complaint is filed with DFEH for an alleged violation of those laws. This is until either the DFEH files a civil action or one year after the DFEH notifies the plaintiff in writing that it has closed its inquiry and decided not to file a civil action.
Even though the four-year period "resets" from the termination date or "non-hire" of an applicant, employers must keep records for four years from the date they were created.
The first warehouse transparency law in the country took effect on January 1, 2022, permanently altering the quota criteria in the warehouse distribution sector.
According to AB 701, warehouse employers must give their staff members written information on distribution quotas. These quotas will not be met at the sacrifice of employees' breaks for meals or rest.
The legislation was first presented in the State Assembly by Assemblywoman Lorena Gonzalez, and Governor Newsom signed it on September 22, 2021.
"The tireless warehouse employees who have helped support us during these unusual times should have to avoid injury or not suffer reprimand as a result of unfair quotas that breach basic health and safety," Gov. Newsom said in a statement after signing AB 701 into law.
Aside from requiring firms to explain productivity quotas to their employees, AB 701 forbids the use of algorithms that interfere with fundamental worker rights, including rest intervals, restroom breaks, and adherence to health and safety regulations.
The law prevents firing or retaliating against employees for not meeting an unsafe quota and enables current and past employees to seek injunctive remedies.
The Garment Worker Protection Act, also known as Senate Bill 62 (SB 62), went into effect on January 1, 2022. The new law tackles several significant issues, including the duty of parties entering into contracts to do garment operations and the proper compensation of employees in the apparel business.
Additionally, regardless of the number of layers of contracting, the new law holds all parties agreeing to the delivery of garment contracts accountable for the appropriate payment of garment workers.
Contractors and suppliers must enroll with the Labor Commissioner's Office to participate in the garment manufacturing business. Performing garment manufacturing operations on your own or hiring a contractor is being engaged in garment manufacturing.
In April, Governor Newsom enacted a state-wide recall bill (Senate Bill 93). It went into action right away and will continue to do so until December 31, 2024.
The state law, like the local ordinances, has a time limit and is targeted at the businesses whose workforces are most affected by COVID: hotels, event venues, exclusive clubs, airport hospitality operations, airport service companies, and businesses that provide janitorial, preservation, and security services for commercial properties.
Employers in specific sectors must inform workers laid off due to COVID-19-related causes about current openings and offer those positions to the laid-off workers first, using a qualification-based preference system, until December 31, 2024.
Any post-layoff changes to a company's ownership, organizational structure, or location will not exempt a company from these recall procedures as long as the operations are the same as they were before the epidemic.
Personal protective equipment (PPE) measure from the previous year, SB 275, which created a state stockpile of PPE in the case of a pandemic, is expanded by AB 73.
AB 73 expands the legal definition of a health emergency to include wildfire smoke incidents and adds agricultural workers to the list of essential workers. Additionally, the legislation mandates that Cal/OSHA examine and update the wildfire smoke training that all businesses must use.
All personnel records must be kept for a minimum of four years starting in 2022. This was previously two years under California's Fair Employment and Housing Act.
In California, "chain community pharmacies" are those with 75 or more locations owned by the same person or entity (SB 362). These pharmacies can no longer set "quotas" that pharmacists must meet to perform their jobs.
Cal/OSHA can now look into safety issues for companies with multiple locations. Now that the government has proof of workplace safety violations in one place, it can utilize that evidence to investigate potential breaches at other sites. Cal/OSHA can issue "enterprise-wide" penalties even in areas where no violations were discovered.
If they are protected by a collective-bargaining agreement that satisfies specific requirements, new SB 646 prohibits janitorial personnel from pursuing a civil action under California's Labor Code Private Attorneys General Act (PAGA).
The relevant collective bargaining agreement must, among other things, include a grievance and binding arbitration procedure to address Labor Code violations that permits the arbitrator to award otherwise obtainable solutions, as well as provisions for employee wages, hours of work, and workplace circumstances.
An employee whose primary responsibilities are to clean and maintain the cleanliness of commercial working places and restrooms, the facilities of an office, residential institution, industrial facility, healthcare facility, theme park, conference center, etc., is referred to as a "janitorial employee". The following are not considered "janitorial employees":
- Employees who wash windows as a specialty.
- Employees in charge of housekeeping, whose primary duties include making beds and changing linens.
- Employees who are cleaning airplane cabins or working on airport facilities.
- Personnel who work in restaurants, card rooms, motels, or other food service establishments.
- Staff members of pharmacies and grocery stores.
California Family Rights Law
AB 1033 updates and expands on SB 1383 from the previous year, which significantly broadened the scope of the California Family Rights Act (CFRA) to include small employers and widened the definition of a family member eligible for leave. This new bill clarifies that workers may take family and medical time off to care for in-laws who are seriously ill.
To clarify, permitted leave to care for a "parent" includes a biological, foster, adoptive parent, stepparent, legal guardian, or another person who stood in place of parents to the employee when the employee was a child. AB 1033 broadens the scope of CFRA's proper family care and medical leave.
Government Code section 12945.2 governs the requirements for what makes an "eligible" employee and, with few exemptions, specifies that the employee must have earned more than 12 months of service with the company and at least 1,250 hours of service during the previous 12-month period.
All employees working in California should be well aware of the employment law updates made in 2022. Being on par with such laws is essential to ensure you understand your importance in the workplace.
However, with the possibility that any of these updates are breached, you can lean on Bohm Wildish & Matsen, LLP, to help you navigate through your problems. From managing employees to employers, we make all your troubles vanish.
Originally published 27 Oct, 2022
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.