The time for passing new laws in 2023 has expired and now we know what will be new for 2024 and beyond. Outlined below are the new laws most likely to affect our clients. We have not included every new law that may impact your organization, but instead, highlighted a few industry-specific laws as a reminder that you should always check for any new laws that may specifically impact your organization. These new laws become effective January 1, 2024, unless otherwise noted. For a full copy of the new laws covered here, simply follow the links. Let us know if you have specific questions about the new laws or how they affect your organization.

Food Safety - Food Handlers

SB 476

Existing law, with specified exceptions, requires food handlers to obtain a food handler card within 30 days of their date of hire and to maintain the food handler card throughout the duration of their employment as a food handler. Existing law did not require employers to pay for the food handler’s time or costs associated with obtaining or maintaining a food handler card.

This bill requires an employer to treat the time spent by an employee to complete food handler training and take the associated examination as compensable “hours worked” for which an employer shall pay the employee. This bill also requires an employer to pay the employee for any necessary expenditures or losses associated with the employee obtaining a food handler card.

The bill further requires an employer to relieve the employee of all other work duties while the employee is taking the food handler training course and examination.

This bill mandates that an employer cannot make it a condition of employment that an applicant or employee holds an existing food handler card.

Additionally, this bill requires the state Department of Public Health to post a link to the internet websites of certain accredited food handler training programs on its website by January 1, 2025. Local health departments will be required to link the state department’s web page on their own websites.

Protected Employee Conduct - Equal Pay and Anti-Retaliation Act

SB 497

Existing law prohibits a person from discharging an employee or in any manner discriminating, retaliating, or taking adverse action against any employee or applicant for employment because the employee or applicant engaged in protected conduct, as specified in the California Labor Code and California’s Equal Pay Act.

Existing law prohibits employers from making, adopting, or enforcing a rule, regulation, or policy preventing an employee from disclosing information that the employee has reasonable cause to believe is a violation of a law, as specified. This includes certain entities and any public body that is conducting an investigation, hearing, or inquiry. In addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding $10,000 for each violation of this provision.

This bill creates a rebuttable presumption of retaliation in favor of an employee’s claim if an employee is disciplined or discharged within ninety days of engaging in certain activity protected by the California Labor Code and California’s Equal Pay Act, including making a bona fide complaint or initiating an action.

This bill establishes that in addition to other remedies, any employer, regardless of business formation, is liable for a civil penalty not to exceed $10,000 per employee for each violation of this provision, to be awarded to the employee who was retaliated against. The bill requires that the Labor Commissioner, in assessing this penalty, consider the nature and seriousness of the violation based on the evidence obtained during the course of the investigation.

Minimum Wages - Healthcare Workers

SB 525

Existing law generally requires the minimum wage for all industries to not be less than specified amounts as adjusted by California’s Director of Finance each year as required under the Labor Code.

This bill establishes a minimum wage schedule for “covered healthcare employees,” with five scheduled minimum wage increases beginning on June 1, 2024, and thereafter increasing over three years. The specific minimum wage increases are dependent upon how facilities are classified and is codified at Labor Code sections 1182.14 and 1182.15. Dependent on the classification of the facility, the initial minimum wage schedule will range from $18.00 – $23.00 per hour. These increases impact both hourly and salaried employees and the law provides a private right of action for employees to enforce the new wage requirements.

This bill requires the Department of Industrial Relations to develop a waiver program by March 1, 2024, allowing covered employers to apply for a one year pause or phase in schedule of the minimum wage requirements.

This bill also requires the California Department of Healthcare Access and Information to publish on their website the classifications of covered healthcare facilities, no later than January 31, 2024.

Notably, this bill provides a mechanism for a covered healthcare facility that believes they were inappropriately excluded from the list of healthcare facilities subject to a lower wage schedule to file a request to be classified differently through January 31, 2025, and specifies the information required with such requests.

Workplace Violence, Restraining Orders, and Workplace Violence Prevention

SB 553

This bill has two distinctive parts.

Existing law allows an employer, whose employee has suffered unlawful violence or a credible threat of violence that can be reasonably construed to be carried out (or was carried out) in the workplace, to seek a restraining order on behalf of the employee and/or other employees at the workplace.

Beginning January 1, 2025, this bill expands existing law to (1) allow an employee’s collective bargaining representative to obtain restraining orders intended to prevent workplace violence, and (2) allows an employer or employee’s collective bargaining representative to obtain a restraining order on the grounds of harassment, in addition to the existing grounds of unlawful violence or a credible threat of violence.

Also beginning on January 1, 2025, this bill requires the employer or collective bargaining representative, prior to filing a restraining order petition, to provide the employee who suffered unlawful violence an opportunity to decline to be named in the temporary restraining order (TRO). However, this right does not prohibit the employer or collective bargaining representative from seeking a TRO on behalf of other employees at the workplace and, if appropriate, other employees at other workplaces of the employer.

Existing law imposes safety responsibilities on employers and employees, including the requirement that an employer establish, implement, and maintain an effective injury and illness prevention program (IIPP), and makes specified violations of these provisions a crime.

No later than July 1, 2024, this bill requires employers to develop and implement a written workplace violence prevention program into their IIPP. The new bill lists numerous elements that must be addressed in a workplace violence prevention program, including:

• Providing an initial training and subsequent trainings every year.
• Designating who is responsible for implementing the plan (by name(s) or job title (s)), including procedures for facilitating the active involvement of employees (and authorized employee representatives) in developing and implementing the plan. These methods must include employee and representative involvement in identifying, evaluating, and correcting workplace violence hazards; designing and implementing training; and reporting and investigating workplace violence incidents.
• Methods the employer will use to coordinate implementation of the plan with other employers, when applicable. These methods shall ensure that all employees are provided the required training and that workplace violence incidents involving any employee are reported, investigated, and recorded.
• Providing effective procedures for:

1. The employer to accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report.
2. Communication with employees at different key moments prior to or throughout an incident.
3. Responding to actual or potential workplace violence emergencies.
4. Identifying and evaluating workplace violence hazards, scheduled inspections, and correcting identified hazards.
5. Post-incident response and investigation.
6. Reviewing and revising the plan as needed, with the active involvement of employees and authorized employee representatives.

This bill also creates record-keeping requirements for employers, which must be kept for at least five years (and provided to Cal/OSHA upon request) including:

• Records of workplace violence hazard identification, evaluation, and correction.
• Training records.
• A violent incident log for all workplace violence incidents.
• Records of workplace violence investigations.

This bill provides exemptions including, places of employment with less than ten employees working at any given time (where the worksite is not accessible by the public); certain healthcare facilities; the Department of Corrections and Rehabilitation; certain law enforcement agencies; and worksites of employees who telecommute (where the location of the work is the employee’s choice and not under the employer’s control).

Another law signed this year by the Governor, SB 428, includes the workplace restraining order language that is also included in this bill. For purposes of this Newsletter, the new rules relating to restraining orders are covered in this entry.

Paid Sick Days

SB 616

Existing law establishes requirements relating to paid sick days and paid sick leave.

Existing law excludes specified employees from its provisions, including an employee covered by a valid collective bargaining agreement (i.e., “CBA employees”).

Existing law imposes procedural requirements on employers regarding the use of paid sick days, including prohibiting retaliation for using paid sick days, prohibiting the imposition of certain conditions on the use of paid sick days, and by requiring the use of paid sick days for specified healthcare and situations.

This bill extends the above-described procedural requirements on the use of paid sick days to CBA employees.

Existing law requires an employee to accrue a minimum of one hour of sick leave for every 30 hours worked. This portion of the law is unchanged.

Existing law allows an employer to utilize an “alternative” accrual rate other than one hour for every 30 hours worked, provided that the employee accrues 24 hours of paid sick leave by the 120^th day of employment.

This bill adds, in addition to the requirement to accrue 24 hours by the 120^th day of employment, a requirement that an employee must also accrue no less than 40 hours of paid sick leave by the 200^th day of employment to remain compliant with the “alternative” method.

Existing law requires sick days to accrue up to a cap of 48 hours and carry over to the following year of employment but also authorizes an employer to limit an employee’s use of accrued paid sick days to three days or 24 hours (whichever is greater) in each year of employment, calendar year, or 12-month period.

This bill raises the sick day accrual cap to 80 hours but also authorizes an employer to limit an employee’s use of accrued paid sick days to five days or 40 hours (whichever is greater) in each year of employment, calendar year, or 12-month period.

Existing law allows an employer, rather than satisfying the accrual and carryover requirements, the option to provide the full amount of leave at the beginning of each year of employment, calendar year, or 12-month period (“front-load”). Under existing law, the “full amount of leave” for these purposes means three days or 24 hours.

This bill redefines “full amount of leave” to mean five days or 40 hours.

Noncompete Agreements

SB 699

Existing law voids contractual provisions by which a person is restrained from engaging in a lawful profession, trade, or business of any kind, baring limited exceptions (known generally as “noncompete agreements”).

This bill establishes that any contract that is void under the law is unenforceable against California employees – regardless of whether the employee executed the agreement in another state or worked in another state when executing the agreement. This protection includes employees who do not reside in California if they provide services for California. 

This bill further provides, that any employer who enters into a contract that is void under the Business and Professions Code, or who attempts to enforce such a contract that is void under the law, commits a civil violation.

This bill also enables an employee, former employee, or prospective employee to bring a private action to enforce the applicable provisions of the Business and Professions Code for injunctive relief, the recovery of actual damages, or both. If any such employee, former employee, or prospective employee prevails in an action based on a violation of the applicable Business and Professions Code sections, they will also be entitled to recover reasonable attorney’s fees and costs.

Employment Discrimination - Cannabis Use

SB 700

This bill expands on AB 2188 (details below), the primary bill related to employment discrimination for cannabis use by further prohibiting employers from requesting information about an applicant’s prior use of cannabis.

This bill also makes it unlawful for an employer to use information about a person’s prior cannabis use when such information is obtained from a person’s criminal history, unless the employer is permitted to inquire about such information pursuant to other state or federal laws.

COVID-19 Rehiring and Retention

SB 723

Existing law requires employers operating one of the following enterprises: hotel, private club, event center, airport hospitality operation, airport service provider, janitorial, building maintenance, or security services, to offer its laid-off employees specified information about job positions that become available for which the laid-off employees are qualified, and to offer positions to those laid-off employees based on a preference system, in accordance with specified timelines and procedures.

Existing law defines the term “laid-off employee” to mean any employee who was employed for six months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, non-disciplinary reason related to the COVID-19 pandemic.

This bill redefines “laid-off employee” to mean any employee who was employed by the employer for six months or more and whose most recent separation from active employment occurred on or after March 4, 2020, and was due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, reduction in force, or other economic, non-disciplinary reason due to the COVID-19 pandemic.

This bill also creates a presumption that a separation due to a lack business, reduction in force, or other economic, non-disciplinary reason is due to a reason related to the COVID-19 pandemic, unless the employer establishes otherwise by a preponderance of the evidence.

This bill extends the repeal date until December 31, 2025 (previously December 31, 2024).

Mandatory Unpaid Leave for Reproductive Loss

SB 848

This bill grants employees up to five days of unpaid reproductive loss leave following a reproductive loss event, which is defined as a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.

Applies to employers with five or more employees.

Employees must be employed for 30 or more days prior to beginning the leave.

The leave must be taken within three months of a reproductive loss event but leave days need not be consecutive. Notwithstanding, if prior to or immediately following a reproductive loss event, an employee is on or chooses to go on protected leave from work under state or federal law, the employee shall complete their reproductive loss leave within three months of the end date of the other leave.

If an employee experiences more than one reproductive loss event, an employer shall not be required to allow more than 20 days of reproductive loss leave within a 12-month period.

The leave may be unpaid (absent an employer policy stating otherwise) but employees may use earned but unused vacation, personal leave, paid sick leave, or compensatory time off otherwise available to the employee.

The bill prohibits retaliation against an individual who uses reproductive loss leave or gives information or testimony concerning such leave and requires employers to maintain the confidentiality of any employee requesting this leave.

This bill is a separate leave requirement from California’s mandated bereavement leave and California’s Family Rights Act leave (CFRA).

Public Prosecutors Can Independently Enforce Labor Code Violations

AB 594

Existing law establishes the Department of Industrial Relations in the Labor and Workforce Development Agency, administered by the Director of Industrial Relations, and vests it with various powers and duties to foster, promote, and develop the welfare of the wage earners of California, to improve their working conditions, and to advance their opportunities for profitable employment. Existing law establishes within the department, among other entities, the Division of Labor Standards Enforcement, the Division of Workers’ Compensation, and the Division of Occupational Safety and Health, with enforcement duties and powers, as prescribed.

The bill authorizes a public prosecutor, as defined, to prosecute an action, either civil or criminal, for a violation of specified provisions of the Labor Code, including misclassification of independent contractors, or to enforce those provisions independently. The bill requires that moneys recovered by public prosecutors under the Labor Code to be applied first to payments due to affected workers. The bill also requires all civil penalties recovered pursuant to those provisions to be paid to the General Fund of the state, unless otherwise specified. This bill authorizes reasonable attorney fees and costs to be paid to the attorney who prevails to the extent the Labor Commissioner would be entitled to such fees.

The bill, except as specified, limits the action of a public prosecutor under the bill to redressing violations occurring within the public prosecutor’s geographic jurisdiction. The bill authorizes a public prosecutor, in addition to any other remedies available, to seek injunctive relief to prevent continued violations.

This bill provides that, in any action initiated by a public prosecutor or the Labor Commissioner to enforce the Labor Code, any individual agreement between a worker and employer that purports to limit representative actions or to mandate private arbitration shall have no effect on the authority of the public prosecutor or the Labor Commissioner to enforce the Labor Code.

The bill sunsets on December 31, 2028.

Additional Notice Requirements under California Wage Protection Act

AB 636

Existing law requires employers to provide to each employee a written notice at the time of hiring, in the language the employer normally uses to communicate employment-related information to the employee, containing the following information:

The rate or rates of pay and basis thereof, whether paid by the hour, shift, day, week, salary, piece, commission, or otherwise, including any rates for overtime, as applicable.

Allowances, if any, claimed as part of the minimum wage, including meal or lodging allowances.

The regular payday designated by the employer in accordance with the requirements of this code.

The name of the employer, including any “doing business as” names used by the employer.

The physical address of the employer’s main office or principal place of business, and a mailing address, if different.

The telephone number of the employer.

The name, address, and telephone number of the employer’s workers’ compensation insurance carrier.

That an employee: may accrue and use sick leave; has a right to request and use accrued paid sick leave; may not be terminated or retaliated against for using or requesting the use of accrued paid sick leave; and has the right to file a complaint against an employer who retaliates against them for using sick leave.

The bill requires an employer to include in the written notice information regarding the existence of a federal or state emergency disaster declaration applicable to the county or counties where the employee will be employed that was issued within 30 days before the employee’s first day of employment, that may affect their health and safety during their employment.

This bill adds additional requirements for employers that utilize farmworkers operating under H-2A visas by March 15, 2024.

The Labor Commissioner will prepare a template for the required notices that complies with H-2A notice requirements by March 01, 2024, and post it on the Labor Commissioner’s internet site.

Grocery Workers

AB 647

Existing law, upon change in control of a grocery establishment, requires an incumbent grocery employer, within 15 days after the execution of the transfer document, to provide the successor grocery employer a list of eligible grocery workers, as specified, and requires the successor grocery employer to maintain a preferential hiring list of eligible grocery workers, to hire from that list for 90 days after the grocery establishment is fully operational and open to the public under the successor grocery employer, and to retain each eligible grocery worker hired for at least 90 days after their commencement date, except as specified.

Existing law defines “grocery establishment” as a retail store that is over 15,000 square feet that meets specified requirements and excludes from the definition a retail store that has ceased operations for six months or more.

This bill, instead, excludes a retail store that has ceased operations for 12 months or more and includes distribution centers that meet specified requirements within the definition of “grocery establishment,” regardless of square footage.

This bill requires an incumbent grocery employer to also provide the list of eligible grocery workers to any collective bargaining representatives and revises the employee information an incumbent grocery employer is required to provide to the successor grocery employer.

Under the new bill, the additional information to be provided to the successor grocery employer and any collective bargaining representative includes the employment occupation classification, and, if known, the cellular telephone number and email address of each eligible grocery worker.

This bill also authorizes an employee or employee representative to bring an action in superior court and provide remedies such as front pay, back pay, and punitive damages, and further authorizes the court to award reasonable attorney’s fees and costs to the employee or employee representative who prevails in an enforcement action.

The Labor Commissioner will be authorized to enforce the provisions and will establish remedies in this regard.

Lastly, this bill makes any employer, agent of an employer, or other person who violates its provisions subject to a civil penalty of $100 for each employee whose rights are violated and an additional amount payable as liquidated damages in the amount of $100 per employee, for each day the rights of an employee are violated and continuing until the violation is cured, not to exceed $1,000 per employee, which may be recovered by the Labor Commissioner, deposited into the Labor and Workforce Development Fund, and paid to the employee as compensatory damages.

Required Employee Notices

AB 1355

Existing law, the Earned Income Tax Credit Information Act, requires an employer to notify all employees that they may be eligible for specified income tax filing assistance programs and state and federal antipoverty tax credits, including the federal and California earned income tax credits, by handing specified documents directly to the employee or mailing the specified documents to the employee’s last known address twice annually. Existing law authorizes the second notification to be sent electronically.

This bill authorizes the employer to provide the first above described notification via email to an employee’s email account instead of directly handing or mailing the document to the employee, if the employee affirmatively, and in writing or by electronic acknowledgement, opts into receipt of electronic statements or materials.

Existing law prescribes a system for the payment of benefits to unemployed individuals who meet specified eligibility criteria. Existing law requires an employer to supply each individual, at the time they become unemployed, with copies of printed statements or materials relating to claims for benefits.

This bill authorizes the employer to provide the above-described notification concerning statements and materials for benefits via email to an employee’s email account, if the employee affirmatively, and in writing, by email, or by some form of electronic acknowledgement, opts into receipt of electronic statements or materials.

This bill prohibits employers from discharging or taking other adverse employment action against an employee who does not opt into receipt of electronic statements or materials.

This bill sunsets on December 31, 2028.

Discrimination - Cannabis Use

AB 2188

Existing law allows employers to refuse to hire, discipline, or terminate employees for the use of cannabis, even though cannabis use is lawful under state law for medical and recreational use among adults who are at least 21 years or older, because cannabis is illegal under federal law.

This bill amends the Fair Employment and Housing Act (FEHA) by adding Section 12954, making it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, for either (1) the use of cannabis off-the-job and away from the workplace, or (2) the detection of nonpsychoactive cannabis metabolites in an employer-mandated drug test.

Employers are still permitted to maintain a drug-free workplace policy and prohibit employees from possessing, being impaired by, or using cannabis while working.

This bill has exceptions for:

• Employees in the building and construction trades,
• Applicants or employees hired for positions that require a federal government background investigation or security clearance in accordance with U.S. Department of Defense regulations (or equivalent regulations applicable to other agencies), or
• Applicants or employees required to be tested for controlled substantives under applicable law (such as Department of Transportation agency testing regulations) or as a condition of receiving federal funding, federal licensing-related benefits, or entering into a federal contract.

The most common form of cannabis testing involves testing for the presence of nonpsychoactive cannabis metabolites, which may last in a person’s system for several weeks after use or consumption of cannabis. This bill prohibits employers from taking any adverse action against an employee based on the presence of nonpsychoactive cannabis metabolites, but employers may still test for impairment.

Employment Discrimination - Criminal History Information and the Fair Chance Act

Existing law prohibits employers with five or more employees to include on any employment application any question that seeks the disclosure of an applicant’s conviction history. It also prohibits employers from inquiring into or considering the conviction history of an applicant until that applicant has received a conditional offer of employment. If an employer intends to deny an applicant a position based solely or in part because of the applicant’s conviction history, the employer is required to make an individualized evaluation of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain factors. If the employer determines that denial of employment is appropriate based upon the required evaluation, the employer must then provide the applicant written notification of the decision as well as an explanation of an applicant’s right to dispute.

This bill prohibits an employer from considering any criminal history information volunteered by the applicant prior to making a conditional offer of employment.

The bill requires an employer who has made a final decision to deny employment to the applicant to provide written notice to the applicant that contains the decision, any internal review procedure available to the applicant, and notice of the right to file a complaint with the Civil Rights Department (formerly the Department of Fair Employment and Housing).

This bill expands the waiting period required after sending a pre-adverse action letter to align with the applicant’s receipt of the letter rather than the date the letter was sent.

The bill expands the definition of employer from the current “a labor contractor and a client employer” to also include “any direct or joint employer, any entity that evaluates the applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly; any staffing agency; and any entity that selects, obtains, or is provided workers from a pool or availability list.”

The bill expands the scope of applicant to include: (1) existing employees who have applied for or indicated a specific desire to be considered for a different position with their current employer; and (2) existing employees who are subject to a review and consideration of criminal history because of a change in ownership, management, policy, or practice.

This bill restricts the employer’s individualized analysis and requires application of a “directly related” standard. Employers can only consider criminal records that are “directly related” to the job in question. This means that employers cannot reject an applicant solely based on their criminal record unless the conviction has a clear and specific bearing on the job duties.

This bill further requires employers must demonstrate that their screening policies are job-related and necessary for the business. Vague or overly broad policies that disproportionately impact individuals with criminal records will be considered discriminatory.

This bill prohibits an employer to include information in job postings, job applications, and other hiring materials that applicants must have a clean criminal history.

This bill went into effect on October 01, 2023.

Pregnant Workers Fairness Act (Federal)

The Pregnant Workers Fairness Act (“PWFA”), effective on June 27, 2023, and applicable to employers with 15 or more employees anywhere in the U.S., is aimed at bridging gaps in existing legal protections for workers affected by pregnancy, childbirth, or related medical conditions, found under various current laws including Title VII, the Americans with Disabilities Act (“ADA”), the Family and Medical Leave Act (“FMLA”), and various state and local laws.

Existing California pregnancy disability leave (CPDL) law requires that employers with five or more employees provide up to four months of protected leave to employees who have been determined to be disabled by pregnancy, childbirth, or related medical conditions. Employers are further required to provide reasonable accommodation(s) to support a pregnant employee’s requirement to perform their current essential job functions unless doing so would create an undue hardship on the employer’s business.

The EEOC issued proposed regulations and final rulemaking is expected to be complete by December 29, 2023; however, below are highlights of differences between this new federal law and California’s current protections that will impact California employers if finalized as currently written.

The PWFA’s definition of “pregnancy, childbirth, or related medical conditions” expands beyond CPDL and includes “current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion, among other conditions.”

The PWFA provides for the potential removal of essential job functions from an eligible employee if (1) the inability to perform an essential function is temporary, (2) the essential function could be performed in the near future, or (3) if the employee’s inability to perform the essential function can be reasonably accommodated.

The PWFA has four “predictable” simple modifications that an employer must make without requiring a medical certification from the employee, 1) allowing an employee whose work requires standing to sit, and vice versa, 2) allowing an employee to carry and drink water in their work area, 3) allowing additional breaktime for bathroom use, 4) allowing additional breaktime for eating and drinking, as needed.

The PWFA is further seeking to prohibit an employer from requiring medical certification when: 1) limitation and need for accommodation are obvious, 2) The employer already has sufficient information to support the known limitation.

The terms “reasonable accommodation” and “undue hardship” have the same meanings as provided under the ADA.

Please let us know if we can support you and your company with navigating any of these changes.

Sincerely,

Holden Law Group