California’s protections for Employee rights at the workplace have been expanded to include more workplace protections, new criminal liabilities for wage theft, and requirements in response to COVID-19.
1) SB 331: The “Silenced No More Act,” which prohibits confidentiality clauses relating to sex-based discrimination and harassment, is amended to impose further restrictions for Employers concerning severance and settlement agreements. Current law prohibits confidentiality and non-disparagement agreements that would prevent the disclosure of sexual harassment or discrimination claims. SB 331 now expands those protections to cover harassment or discrimination on any protected basis and creates additional obligations for claims asserted either in civil court or with administrative agencies, as well as claims that are addressed prior to litigation, such as in separation and severance agreements.
As of January 1, 2022, the settlement of litigation or administrative agency actions may not include language preventing the disclosure of factual information relating to any type of workplace harassment, discrimination, or retaliation based on any protected characteristic under the Fair Employment and Housing Act. The amount of the settlement may still be kept confidential and the Employee may still request that facts which could lead to the discovery of the Employee’s identity to be confidential.
Separation and severance agreements must include language for the employee’s right to disclose unlawful acts in the workplace, whether in a settlement agreement or in a separation or severance agreement. Specifically, such agreements must include the following: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
All Employees, regardless of age, signing a separation and severance agreement must be provided with at least five days to consider a severance agreement and to be advised that they have the right to consult an attorney regarding the agreement. An Employee may still sign prior to the five-day period as long as the shortened period is “knowing and voluntary,” and not induced by the employer’s “fraud, misrepresentation, or threat to withdraw or alter the offer.” However, this does not apply to negotiated settlements resolving a pre-litigation claim under the Fair Employment and Housing Act (FEHA) if: (1) the separation agreement is voluntary, deliberate, and informed; (2) the agreement provides consideration of value to the employee; and (3) the employee is given notice and the opportunity to retain an attorney or is represented by an attorney.
2) SB 807: Employers are required to now maintain personnel records for four years from the date of creation, instead of the prior two years, and also four years from the date of termination of an employee or non-hire of an applicant. In addition, SB 807 adds many new requirements to the FEHA with respect to the procedures and time frames for filing complaints under the FEHA and litigating claims. If an Employer has notice that a verified complaint has been filed against it under the FEHA, then it must preserve all records and files until: (1) the time period for filing the civil action has expired, or (2) the first date after the complaint has been fully and finally disposed of and all administrative proceedings, civil actions, appeals, or related proceedings have terminated.
3) SB 657: Employers are provided with alternative posting options as more employees work remotely. The new law allows Employers to provide certain workplace postings to employees via email. However, Employers must still must comply with existing California posting requirements and physically post documents in their actual workplace. Such required postings include, but are not limited to, the appropriate California Wage Orders, regular payday schedules and the time and place of payment notices, safety rules, and employee rights under whistleblower laws. This law does not alter nor amend federal posting requirements, such as the minimum wage and posting requirements under the Family Medical Leave Act (“FMLA”).
4) AB 1033: The California Family Rights Act (“CFRA”) which defines “family member” to include a child, parent, grandparent, grandchild, sibling, spouse, or domestic partner who has a serious health condition is expanded to also include “parents-in-law.” In addition, the Department of Fair Employment and Housing is required (“DFEH”) to notify an employee in writing of the requirement for mediation under the DFEH’s small employer mediation program prior to filing a civil action, and requires an employee to contact the DFEH’s dispute resolution division to indicate whether they are requesting mediation.
5) AB 654: Labor Code section 6409.6 requires Employers to notify employees, the employees’ exclusive representative (such as a union), and subcontractors that they might have been exposed to COVID-19 within one business day of the employer receiving notice. Beginning January 1, 2022, Employers must notify all employees, employees’ exclusive representative (such as a union), and subcontractors who were “on the premises at the same worksite as the qualifying individual within the infectious period.” Pursuant to the CDC, the “infectious period” for asymptomatic individuals generally is 10 days after the first positive test. For symptomatic individuals, it is 10 days after onset of symptoms and after resolution of fever for at least 24 hours and improvement of other symptoms. Further, the definition of “workplace” is amended to exclude locations: (1) where the employee worked alone without exposure to other employees; (2) the employees’ personal residence; and (3) an alternative work location chosen by the employee when the employee is working remotely. The new law also amends notice requirements in the event of an “outbreak.” Under current law, if the Employer was notified of the number of cases that meet the definition of “outbreak,” the Employer must, within 48 hours, notify the local public health agency of the names, number, occupation, and worksites of employees who meet the definition of “qualifying individual.” Effective January 1, 2022, notice is required within 48 hours or one business day, whichever is later. Note that additional industries are exempt from the reporting requirement, which include: (1) community clinics, (2) rural health clinics, (3) federally qualified health centers, (4) chronic dialysis clinics, (5) adult day health centers, (6) home health agencies, (7) pediatric day health and respite care facilities, (8) hospices, (9) community care facilities, (10) residential care facilities for persons with chronic life-threatening illness, (11) residential care facilities for the elderly, and (12) child day care facilities. This law sunsets on January 1, 2023.
6) SB 93: Certain Employers are required to rehire employees that were laid off due to COVID-19. These Employers include: (1) hotels with 50 or more guest rooms, (2) private clubs that contain at least 50 guest rooms that they offer to members for overnight lodging, (3) event centers with more than 50,000 square feet or 1,000 seats used for events, (4) airport hospitality operations, (5) airport service providers, and (6) office services that include janitorial, building or security services. This law does not impose any obligations on employers who are not engaged in any of these specific industries.
7) AB 1003: As of January 1, 2022, California Penal Code section 487m provides for criminal penalties for wage theft by an employer. This new criminal law defines the “theft of wages” as “intentional deprivation of wages” as defined in Labor Code section 200. Under this provision of the Penal code, an independent contractor is also included within the definition of an “employee.” The new law provides that the intentional theft of wages in an amount above $950 from any single employee, or $2,350 in the aggregate from two or more employees, by an employer in any consecutive 12-month period, may be punished as grand theft under state law.
8) AB 1561 & 1506: Further exemptions from AB 5, which sets forth a strict ABC test to determine whether an independent contractor is an employee, have been added. These new exemptions include insurance claims adjusters, insurance third-party administrators, construction industry subcontractors, manicurists, and newspaper carriers from the more strict ABC test for determining whether a worker is an independent contractor. These exempt workers will instead be governed by the multifactor test previously adopted in S. G. Borello & Sons, Inc. v. Department of Industrial Relations (1989) 48 Cal.3d 341.
9) AB 1561: The relationship between data aggregators and their research subjects are now clarified such that the law removes the previous requirement that research subjects are to be paid the minimum wage for the research task in which they have willingly engaged.
10) SB 3: Effective January 1, 2022, the California state minimum wage will increase to $15.00 per hour ($14.00 per hour for employers with 25 or fewer employees). As a result, the monthly salary for California exempt-status employees will increase to $5,200 per month, or $62,400 annual salary (which is equal to twice the minimum wage based on a 40-hour workweek). Employers must also note that there may be higher local minimum wage requirements imposed by counties and cities which they must follow.
11) Computer software employees must receive a minimum hourly rate of pay of at least $50.00 or a minimum monthly salary of at least $8,679.16 ($104,149.81 annually) beginning January 1, 2022. Licensed physicians and surgeons must be paid a minimum hourly rate of at least $91.07 beginning January 1, 2022.
12) AB 701: Employees will be protected from warehouse quotas at warehouse distribution centers in California that prevent employees from taking compliant meal and rest periods, use bathroom facilities, or encourage violations of occupational health and safety laws. The law applies to employers that have 100 or more employees at a single warehouse distribution center, or 1,000 or more employees at one or more “warehouse distribution centers” in California. A quota is defined as “a work standard under which an employee is assigned or required to perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period and under which the employee may suffer an adverse employment action if they fail to complete the performance standard.” The new law requires Employers to provide each employee upon hire or within 30 days: (1) a written description of each quota that applies to the employee; (2) the quantified number of tasks to be performed or material to be produced or handled within the defined time period; and (3) any potential adverse employment action that could result from the failure to meet the quota. Current and former employees who believe that meeting a quota caused a violation of their right to take a meal or rest period, or required them to violate an occupational health and safety law, may request a written description of each quota appliable to them. Employees—including former employees—may make this request orally and in writing, and employers then have 21 days to provide this information. Employees may seek injunctive relief, costs and attorneys’ fees. Employees also may pursue claims under the Private Attorney General Act, although employers have 33 days to cure any violations.
13) AB 62: Liability for retailer “brand guarantors” has been expanded to include wage and hour violations committed by their manufacturing vendors, even if the brand guarantor is unaware of any such wage and hour violations. A “brand guarantor” is defined as any person contracting for the performance of garment manufacturing, which could hold clothing brands, holding companies, and even retailers liable for violations that occur in manufacturing facilities.
14) SB 606: The authority of Cal/OSHA has been expanded to address enterprise-wide violations and egregious violations by Employer. Employers with multiple worksites have a rebuttable presumption that a violation is enterprise-wide if the employer has a written policy that violates Cal/OSHA or if Cal/OSHA has evidence of a pattern or practice of the same violation or violations committed by that employer involving more than one worksite. For egregious violations, each instance of an employee exposed to the violations is considered a separate violation for purposes of fines and penalties as opposed to a per-incident basis.
Please note that the information provided on this website is for general information purposes only and is not to be construed nor relied upon as legal advice nor the formation of an attorney-client relationship. For a free consultation with Attorney Thomas M. Lee, please contact us.
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