As a follow up to our recent article regarding pay transparency for employers, there are additional recently enacted laws that California employers and employees should be aware of.
Minimum Wage Increase
As of Jan.1, 2023, minimum wage in San Diego is now $16.30. California has also increased its minimum wage in 2023, bringing the statewide minimum to $15.50.
SB 189 – Civil Rights Department
Senate Bill 189 changed the name of the Department of Fair Employment and Housing (DFEH) to the Civil Rights Department (CRD). It also changed the name of the Fair Employment and Housing Council (FEHC) to the Civil Rights Council (CRC). Thus, it is important to remember to update any handbooks or templates that you may have, and to use the department’s correct title in future correspondences.
AB 1041 – CFRA Expansion and CA Paid Sick Leave to Include Non-Family
Assembly Bill 1041 expands an employee’s ability to take protective leave under the California Family Rights Act (CFRA) and California Paid Sick Leave law by adding “designated person” to the definition of “family member.” This bill took effect Jan. 1, 2023.
The CFRA allows employees working for a California employer with five or more employees to take up to 12 workweeks in any 12-month period for family care and medical leave. Prior to this law’s enactment, employees only qualified for leave under the CFRA to take care of another when the other person was a “family member,” such as a biological, adopted, or foster child. However, this bill expands an employee’s ability to take leave for the care of another under the CFRA by allowing employees to qualify for leave when taking care of any “designated person.” A “designated person” under the bill is “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” The designated person may be identified at the time that leave is requested, and an employer may limit an employee to one designated person per 12-month period.
AB 1041 also expands the definition of “family member” to include a designated person under California’s Paid Sick Leave law. Prior to the enactment of this bill, employees were only able to use paid sick leave for the employee, or the employee’s child, parent, spouse, registered domestic partner, grandparent, grandchild, and sibling. With the addition of “designated person,” an employee may now take paid sick leave for a person identified by the employee at the time the employee requests paid sick days. As with CFRA, the new law allows an employer to limit an employee to one designated person per 12-month period.
Employers should review and update their policies to reflect the change in law and consider revising protected leave and sick leave policies to restrict employees to one “designated person” per 12-month period.
AB 1949 – Unpaid Bereavement Leave
AB 1949 creates protected bereavement leave under the Government Code and makes it unlawful for an employer to refuse to grant an employee the ability to take up to five days of bereavement leave upon the death of a qualifying family member. A qualified family member includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The five-day bereavement leave is in addition to the 12 weeks of leave permitted under the CFRA.
An employee is eligible for bereavement leave once they have been employed for at least 30 days prior to the commencement of leave. The bereavement leave must be completed within three months of the date of death, may be intermittent, and the leave must be taken pursuant to any existing bereavement policy of the employer. The employer may require the employee to provide documentation of the death of a family member, such as a death certificate or published obituary, within 30 days of the first day of leave. The employer must maintain the confidentiality of an employee requesting bereavement leave and all related documentation provided. If an employer’s existing policy provides for less than five days of bereavement leave, a total of at least five days of bereavement leave must be allowed. In the absence of existing policy, the leave may be unpaid. However, AB 1949 authorizes an employee to use certain other leave balances available to the employee, including accrued and available paid sick leave.
This bill does not apply to employees who are covered by a collective bargaining agreement if the agreement expressly provides for bereavement leave equivalent to that required in the bill and certain wage and hour metrics are met. This bill also creates a small employer family leave mediation pilot program for alleged violations of specified family care and medical leave provisions, applicable to employers with between five and 19 employees. Under the pilot program, when an employee requests an immediate right to sue alleging a violation, the department shall notify the employee in writing of the requirement for mediation prior to filing a civil action if mediation is requested by the employer or employee. Employers should review and update their bereavement policy to reflect this change in the law.
SB 1334 – Meal and Rest Periods for Hospital Employees
SB 1334 requires public employers to provide meal and rest periods to employees who provide direct patient care or support direct patient care in a general acute care hospital, clinic, or public health setting. This bill entitles these employees to one unpaid 30-minute meal period on shifts over five hours and a second unpaid 30-minute meal period on shifts over 10 hours. However, employees are authorized to waive those meal periods, and the bill provides for on-duty meal periods as well. The bill also entitles the covered employees to a rest period based on the total hours worked daily at the rate of 10 minutes net rest time per every four hours worked, or a major fraction thereof. If an employer fails to provide meal or rest periods, the bill entitles employees to recover an additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest period is not provided. Employees who are exempt from overtime under state law are not covered by SB 1334. Additionally, employees who are covered by a valid collective bargaining agreement that provides for meal and rest periods are also not covered by SB 1334.
Public employers should establish new recordkeeping policies to track meal and rest periods for employees who now qualify for meal and rest breaks under SB 1334 and update their meal and rest break policies, if needed.
SB 523 – Reproductive Health Decisionmaking
Under SB 523, the Fair Employment and Housing Act (FEHA) is revised to include “reproductive health decisionmaking” as a protected category. The inclusion of this phrase as protected category makes it unlawful for an employer to discriminate against individuals based on their decisions regarding reproductive health decisionmaking. Under this amendment to FEHA, employers may not condition employment, continued employment, or a benefit of employment on the disclosure of information relating to an applicant’s or employee’s reproductive health decisionmaking. Reproductive health decisionmaking includes a decision to use or access a particular drug, device, product, or medical service for reproductive health. Additionally, various changes were made by the bill to expand coverage of contraceptives by health care service contracts, health insurance policies, and health benefit plans.
AB 2188 – Cannabis Discrimination
Effective Jan. 1, 2024, it will be unlawful for an employer to discriminate against an applicant or employee for the use of cannabis off the job and away from work. Further, employers may not discriminate against employees or applicants based on an employer-required drug test that found non-psychoactive cannabis metabolites in the person’s hair, blood, urine, or other bodily fluids. Employers may still test employees and applicants for cannabis, but they must ensure that the drug screening does not screen for non-psychoactive metabolites. Certain applicants and employees are exempt from this new law based on their profession, such as those in the building and construction trades, and based on their relation to the federal government, such as an applicant for a position requiring a federal background investigation. Thus, it will be important to keep this new law in mind for 2024, as many employers will need to revise their application and drug screening procedures.
SB 1044 – Retaliation & Emergency Conditions
Under SB 1044, employers are now prohibited, in the event of an emergency condition, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace or worksite within the affected area due to an employee’s “reasonable belief” that the workplace or worksite is unsafe. Further, employers are now prohibited from preventing any employee from accessing their mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or confirming the safety of another. However, employees are required to notify an employer of the emergency condition before leaving or refusing to report to the workplace or worksite. In light of the recent health concerns caused by COVID-19, the bill specifies that a health pandemic is not an “emergency condition” for purposes of the new rule. Accordingly, employers should keep in mind that a new arena for retaliation claims has developed, and policies regarding mobile devices in the workplace may need to be updated to comply with the new law.
AB 257 – Fast Food Accountability and Standards Recovery Act (Fast Recovery Act)
In response to the rampant workplace health and safety violations that occurred at fast food restaurants during the COVID-19 pandemic, the Governor signed AB 257 into law, establishing a Fast-Food Council (Council) that will oversee and regulate all qualifying restaurants. The Council will establish sector-wide minimum standards on wages, working hours, and other working conditions related to the health, safety, and welfare of fast-food restaurant workers. To qualify as a restaurant covered by the Fast Recovery Act, a restaurant must be part of a set of fast-food restaurants consisting of 100 or more establishments nationally that share a common brand or are characterized by standardized options for decor, marketing, packaging, products, and services.
In January 2023, a court stayed the enforcement of this bill and the Fast Recovery Act will join other employment-related measures on the November 2024 ballot. If the referendum challenging AB 257 fails, franchisees, other “chain style” restaurant operators, and their employees should be aware of the Council as the new authority governing many aspects of their employment relationship.