California employers should begin preparing for a number of changes as a result of new laws enacted during this year's legislative session that were signed by Governor Gavin Newsom. Below are some of the major updates for employers in the state.
- Paid sick leave increases. Under current law, employees who work in California are entitled to three days or 24 hours of paid sick leave, accruing no less than one hour of paid sick leave per every 30 hours worked for the same employer. Pursuant to Senate Bill 616, the paid sick leave mandate jumps to five days or 40 hours per year. The new law also increases the accrual and carryover cap to ten days or 80 hours, although no accrual or carryover is required if the employer provides five days or 40 hours of paid sick leave upfront each year of employment. SB 616 takes effect on January 1, 2024.
- Rebuttable presumption of retaliation. Senate Bill 497 establishes a rebuttable presumption of retaliation where an employee is subjected to an adverse employment action within 90 days of an employee engaging in conduct described in Labor Code sections 98.6 and 1197.5, which protect an employee who is making complaints about equal pay violations, unpaid wages or other claims related to rights under the jurisdiction of the Labor Commissioner. Civil penalties also grew from $10,000 generally to $10,000 per employee per violation.
- Protection for prior cannabis use. As of January 1, 2024, employers are prohibited from discriminating against a job applicant based on information regarding the prior use of cannabis learned from the applicant's criminal history. Senate Bill 700 amended the Fair Employment and Housing Act (FEHA) but does not preempt state or federal laws that require an applicant to be tested for controlled substances; nor does it prohibit an employer from asking an applicant about criminal history as long as the inquiry complies with state law. The measure builds on last year's Assembly Bill 2188, which prohibits employers from discriminating against a person in hiring, termination, or any term or condition of employment based on a person's use of cannabis off the job and away from the workplace (with an exception for preemployment drug testing) or based on an employer-required drug screening that found the individual to have nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.
- Reproductive loss leave. Employers with five or more employees must provide up to five days of "reproductive loss" leave for employees who have worked for at least 30 days, with the passage of Senate Bill 848. The new law defines a "reproductive loss" to include a miscarriage, a failed surrogacy, a stillbirth, an unsuccessful "assisted reproduction" (such as artificial insemination or embryo transfer) or a failed adoption. If an employee suffers more than one reproductive loss within a 12-month period, an employer is not required to provide total leave in excess of 20 days. Leave may be taken on nonconsecutive days but must be completed within three months of the reproductive loss. The leave may be unpaid, although SB 848 permits employees to use other leave, including paid sick leave. The new law—which also prohibits retaliation against an employee who uses such leave and mandates employer confidentiality—takes effect January 1, 2024.
- Plan for workplace violence protection. With the enactment of Senate Bill 553, all California employers must establish, implement and maintain an effective workplace violence prevention plan (WVPP). As part of the WVPP, employers must maintain a violent incident log, train employees on workplace violence hazards and conduct periodic reviews of the plan. SB 553 features several exemptions for various categories, including health care facilities; employees who work remotely; and places of employment where fewer than ten employees are working at any given time, that are not accessible to the public, and that are in compliance with the requirement to develop and maintain an injury illness prevention plan. Several requirements of the new law take effect on July 1, 2024, with the state's OSHA set to propose standards by December 1, 2025.
- Fast Food Council returns. Remember the Fast Food Council established by the Fast Food Accountability and Standards (FAST) Recovery Act? Enacted in 2022, the law created a ten-person Fast Food Sector Council tasked with creating a bill of rights for fast-food workers. A coalition of California restaurateurs, franchises and business owners objected and proposed a referendum challenging the FAST Recovery Act. The coalition reached a deal in September with labor unions to withdraw the referendum, in part due to Assembly Bill 1228, which repeals the FAST Recovery Act, establishes a modified Fast Food Council until January 1, 2029, and defines the objectives, responsibilities and constraints of the council. The measure also sets minimum wage increases for fast-food workers, with a bump to $20 per hour starting April 1, 2024, with annual increases each January 1 thereafter.
- Employer restraining orders. In other workplace violence legislation, employers will be permitted to seek a temporary restraining order and an injunction on behalf of employees pursuant to Senate Bill 428. An employer must show clear and convincing evidence that an employee has suffered harassment, that great or irreparable harm would result to an employee, and that the respondent's course of conduct served no legitimate purpose, where the employee has suffered violence or a credible threat of violence from any individual that can reasonably be construed to be carried out or to have been carried out at the workplace. Employees have the option to decline to be named in the order before the filing of the petition, and courts are prohibited from issuing such an order to the extent that it would prohibit speech or activities protected by the National Labor Relations Act or provisions governing the communications of exclusive representatives of public employees. SB 428 takes effect on January 1, 2025.
While several new laws were enacted, a handful—including a bill adding "caste" as a protected class, a measure that would have required an employer to provide 30 days' written notice to remote employees that they have the right to ask for continued remote work as a reasonable accommodation before returning to work, a proposal that would have expanded the application of California's Worker Adjustment and Retraining Act to all places of employment that employed 75 or more employees in the preceding 12 months, and a bill adding "family caregiver" as a protected class under FEHA—were vetoed by the governor.
Why it matters
California employers should familiarize themselves with the applicable new laws and should begin preparing for compliance, as several take effect in the coming months. In addition, the general statewide minimum wage will see an increase from $15.50 to $16 as of January 1, 2024.
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