Following is a quick look at some of the new employment laws about which employers should be aware. Unless otherwise stated, the new laws take effect starting January 1, 2022.
California Family Rights Act
AB 1033 cleans up and builds upon last year’s SB 1383, which dramatically expanded the California Family Rights Act (CFRA) to cover small employers and expanded the definition of family member for whom leave could be taken. This new bill clarifies that employees can take family and medical leave to care for a parent-in-law with a serious health condition.
AB 1033 also revises and adds more detailed provisions to the small employer (five to 19 employees) mediation program originally created in 2020 by AB 1867, including making participation in the mediation program a prerequisite to the employee filing a civil action. The revisions to the program should help more small businesses become aware of their ability to resolve CFRA disputes through mediation rather than costly civil litigation.
Safety, Wage Enforcement, Penalties
• SB 606 expands the enforcement authority of the California Division of Occupational Safety and Health (Cal/OSHA) by creating two new violations categories for which Cal/OSHA can issue citations.
This bill creates a rebuttable presumption that a violation committed by an employer with multiple worksites is “enterprise-wide” if the employer has a written policy or procedure that violates certain safety rules or Cal/OSHA has evidence of a pattern or practice. Cal/OSHA may issue an enterprise-wide citation requiring abatement if the employer fails to rebut the presumption. Enterprise-wide citations will carry the same penalties as citations for repeated or willful violations, up to $134,334 per violation.
Cal/OSHA also must issue a citation for an “egregious violation” if the division believes that an employer has willfully and egregiously violated an occupational safety or health standard, order, special order or regulation based on several factors listed in the statute. The bill requires each instance of an employee exposed to that violation to be considered a separate violation for the issuance of fines and penalties.
• AB 1003 makes the intentional theft of wages, benefits or compensation in an amount greater than $950 for one employee or more than $2,350 for two or more employees in a consecutive 12-month period punishable as grand theft under the California Penal Code, which prosecutors may charge as a misdemeanor or felony.
• SB 572 deals with enforcement of wage liens against employers by adding a provision to the Labor Code allowing the California Labor Commissioner to create, as an alternative to a judgment lien, a lien on real property to secure amounts due to the commissioner under any final citation, findings or decision.
Settlement Agreements
SB 331 significantly expands on laws passed over the past few years limiting the ability to use confidentiality clauses in severance and settlement agreements. Prior to SB 331, any settlement agreement in a case where sexual harassment, sexual assault or discrimination based on sex has been alleged couldn’t include a confidentiality provision prohibiting disclosure of information regarding the claim.
SB 331 expands the prohibition to include acts of workplace harassment or discrimination based on any characteristic protected under the Fair Employment and Housing Act, not just those based on sex. While employees cannot be prohibited from discussing underlying facts of the case, employers can still use clauses that prevent the disclosure of the amount paid to settle the claim. SB 331 will apply to agreements entered on or after January 1, 2022.
Industry-Specific Measures
• AB 701 specifically targets warehouse distribution centers. The new law applies to certain larger employers meeting industry definitions for General Warehousing and Storage, Merchant Wholesalers (Durable and Non-Durable Goods), and Electronic Shopping and Mail-Order Houses. The law requires covered employers to provide each nonexempt employee working at a warehouse distribution center a written description of each quota to which they are subject, including tasks to be performed, materials produced or handled, time periods and any potential adverse employment actions that may result from failure to meet quotas.
Under AB 701, employees cannot be required to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities, or health and safety laws. If employees feel that quotas are interfering with these things, they can request a copy of applicable quotas and the last 90 days of their personal work speed performance, which the employer must produce within three weeks. The law also creates a rebuttable presumption of retaliation if the employer takes adverse action against an employee within 90 days of the employee’s request for their quota and personal work speed performance or an employee’s complaint about a quota.
• SB 62 requires garment manufacturers and “brand guarantors” who contract with another person for the performance of garment manufacturing to be jointly and severally liable with manufacturers or contractors for wage violations of employees in the supply chain. For purposes of expanding the shared liability under this law, the bill expands the definition of garment manufacturing.
SB 62 also prohibits the practice of piece-rate compensation for garment manufacturing, except at worksites covered by a valid collective bargaining agreement. The bill imposes statutory damages of $200 per employee against a garment manufacturer or contractor, payable to the employee, for each pay period in which each employee is paid by piece rate.
• AB 73 expands on one of last year’s personal protective equipment (PPE) bills, SB 275, which established a state stockpile of PPE in the event of a pandemic. AB 73 broadens the scope of the law to include wildfire smoke events as a health emergency under the law and includes agricultural workers in the definition of essential workers. The bill also requires Cal/OSHA to review and update wildfire smoke training, which employers must follow.
COVID-19
• AB 654 clarifies and cleans up last year’s COVID-19 notice and reporting bill, AB 685. As previously reported, the bill revises the language AB 685 used to describe COVID-19 notice requirements to make it more consistent throughout. This was an urgency measure that took effect immediately upon being signed on October 5.
• Under SB 336, when the California Department of Public Health (CDPH) or a local health officer issues an order or mandatory COVID-19-related guidance, they must publish the order or guidance on their website along with the date that the order or guidance takes effect. The CDPH or local health officer must also create an opportunity to sign up for an email distribution list to receive updates on the order or guidance. SB 336 also went into effect immediately upon being signed on October 4.
