To no one's surprise, the California state legislature passed several bills during the past year that will impact workplace law in 2025. Below are four notable changes, all of which will go into effect on January 1, 2025.
Expanded Protections under FEHA
California's Fair Employment and Housing Act1 (FEHA)
prohibits discrimination and harassment across the employment
lifecycle, from the hiring process (applications, interviews) to
the working relationship (compensation, promotions, transfers), and
finally, to the end of the working relationship (terminations,
reductions in force).
- Currently, FEHA prohibits employers with 5 or more employees from discriminating or harassing employees based on several protected characteristics, such as race, sex, age, or physical or mental disability. Beginning January 1, the law will expand to explicitly prohibit such actions based on "intersectional identities," which is defined as a combination of any two or more of the already protected characteristics (for example, an African Muslim)2.
- In addition, FEHA is being amended to make it unlawful for an employer to include in a job advertisement, posting, application or other material a statement that the applicant must have a driver's license, unless (1) the employer reasonably expects the duties of the position to require driving; and (2) the employer reasonably believes that an individual could not satisfy the job duties using an alternative form of transportation (e.g., ride share, taxi, carpool, bicycle, walking) in a comparable amount of time or cost to the employer.3
To prepare for compliance, employers are encouraged to consult with legal counsel to determine if updates to their anti-discrimination and anti-harassment policies, as well as job postings and applications, are needed.
Expanded Protections for Employee Victims of
Violence
California law presently provides leave and accommodation
protections for employees who are victims of certain crimes, and
prohibits an employer from discharging, discriminating or
retaliating against an employee because of (a) the employee's
status as a victim of crime or abuse or (b) for taking time off for
certain specified purposes, such as complying with a subpoena or
seeking a restraining order. The legislature has revised and
expanded these protections in AB 2499, which goes into effect on January 1,
2025.
- AB 2499 moves the current leave and accommodation protections from the Labor Code to FEHA, essentially clarifying that failure to provide appropriate protection is an unlawful employment practice. The move also shifts the responsibility of enforcement to the CA Civil Rights Department (CRD), which oversees FEHA.
- Beginning January 1, 2025, use of the phrases "crime or abuse" or victims of "domestic violence, sexual assault, or stalking" to describe victims' eligibility for time off will be replaced by the phrase "qualifying acts of violence" (or QAV), which means domestic violence, sexual assault, stalking, or any act, conduct, or pattern of conduct that includes (a) bodily injury or death to another individual; (b) exhibiting, drawing, brandishing, or using a firearm or other dangerous weapon; or (c) a perceived or actual threat to use force against another individual to cause physical injury or death. Importantly, a QAV is based solely on the conduct that occurred and is not dependent on whether any person is arrested, charged, prosecuted, or convicted of a crime.
- The new law expands reasonable accommodation protections to include employees who are victims of a QAV or who have a "family member" (as defined in FEHA) who is a victim of a QAV.
- In addition to existing prohibitions on discrimination and retaliation, the new law also prohibits employers with 25 or more employees from discharging, discriminating, or retaliating against an employee who is a victim of a QAV, or whose family member is a victim of a QAV, for taking time off for certain additional enumerated reasons, including seeking, obtaining, or assisting the family member who is a victim of a QAV with medical attention, domestic violence services, psychological counseling, legal services, or locating a new residence.
- Finally, employers will be required to give employees notice of their rights to leave for reasons related to being a victim of a QAV (a) at the time of hire, (b) annually, (c) upon request, and (d) in the event an employee provides notice to the employer that a family member is a victim. The CRD is developing a form of notice that will comply with these requirements, which is expected by July 1, 2025.
Again, employers may wish to consult with employment counsel to determine if updates to their paid sick leave policies are needed in order to comply with the expanded protections, and for assistance with preparing notice as required under AB 2499.
Expanded Access to Paid Family Leave
Under California's current Paid Family Leave program (PFL), eligible
employees are provided time off to (a) care for seriously ill
family members (as defined in the statute), (b) bond with a minor
child within one year of birth or placement, or (c) participate in
certain qualifying military events of covered family members.
Additionally, an employer may require an employee to take up to two
weeks of accrued vacation before, and as a condition of, receiving
PFL benefits.
Beginning on January 1, 2025, employers will no longer be allowed to require the use of accrued vacation before, or as a condition of, receiving PFL benefits. Accordingly, employer leave policies may need to be updated to ensure compliance with PFL's expanded protections.
Freelance Worker Protection Act (FWPA)
On September 28, 2024, California Governor Gavin Newsom signed into
law SB 988, the Freelance Worker Protection Act
(FWPA), which imposes minimum requirements for written agreements
between "freelance workers" and "hiring
parties" for the provision of "professional
services," as such terms are defined under this new law.
- "Hiring parties" are generally private entities or organizations in California who contract with "freelance workers," who in turn are defined as "a person or organization composed of no more than one person . . . that is hired or retained as a bona fide independent contractor" to provide "professional services," which include marketing, human resources, travel agent services, graphic design, grant writing, photography, videography, freelance writing, editing, and more.
- Beginning January 1, 2025, the FWPA requires that (a) contracts for freelance work of $250 or more be documented in writing by hiring parties, and (b) payment is made (i) on the date specified by the contract, or (ii) no later than 30 days upon completion of services, if no date is provided.
- The FWPA prohibits a hiring party from conditioning timely payment upon requiring a freelance worker to (a) accept less money or provide additional goods or services, or (b) grant additional intellectual property rights. Likewise, hiring parties are prohibited from discriminating or retaliating against a freelance worker for asserting or seeking to enforce rights under the FWPA, opposing any practice prohibited by the FWPA, or participating in any proceedings relating to the enforcement of the FWPA.
Employers are encouraged to consult with legal counsel to determine what steps may be needed to prepare for compliance under FWPA, including updates to existing independent contractor agreements.
OGC's employment law team is happy to answer your questions and assist with compliance. Please contact Sarah Biran at sbiran@outsidegc.com to get started.
Footnotes
1 California Government Code, as sections 12900–12996
2 Pursuant to SB-1137, enacted into law on September 27, 2024
3 Pursuant to SB-1100, enacted into law on September 28, 2024
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