The 2021 California Legislative year resulted in a number of new laws affecting California employer practices. This Alert summarizes key new laws that have either recently taken effect or will go into effect on January 1, 2022. Companies should work with legal counsel to assess the best approach for complying with these new developments.
- Non-Disclosure and Non-Disparagement Agreements
- Payment of Arbitration Fees
- FEHA Employee Record Retention
- CFRA Leave Expansion
- Wage & Hour
- Workplace Safety
Part 1: Major Legislation
Part 2: Additional Developments in CA Legislation Relating to COVID-19, Wage & Hour Laws, and Workplace Safety
- AB 654: (Employers’ notification, benefits, and disinfecting requirements after COVID-19 exposure have been clarified).
- This law is already in effect and expands upon COVID-19 requirements enacted in 2020. Previously, employers were required to notify “employees who may have been exposed” to a person with COVID-19 in the workplace. Now, within one business day of notice of potential exposure, employers must notify “all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period.” Notice must be written, but this may include email or text message if that is a reasonable form of communication.
- In the notice, employers must explain any applicable benefits (e.g., workers’ compensation, sick leave, etc.) to which the exposed may be entitled, along with the cleaning and disinfection plan the employer has implemented under CDC and Cal/OSHA standards.
- If any employer sustains the number of cases that qualify as a “COVID-19 outbreak” (as defined by the State Department of Public Health), the employer must notify the local public health agency with requisite details within 48 hours or one business day, whichever is later.
- The law enumerates some industries that are exempt from these requirements (e.g., certain health clinics and residential care facilities). The provisions sunset January 1, 2023.
Wage & Hour
- AB 286: (Food delivery and facility personnel will keep their tips).
- This law makes it unlawful for any food delivery service to retain any money designated as a tip or gratuity. For deliveries, the service must provide the entire gratuity to the delivery person. For pick-up orders, the platform must provide the money to the food facility.
- The law also expands consumer disclosure requirements as to how prices are calculated.
- AB 701: (Warehouse distribution centers required to disclose quotas to nonexempt employees).
- Effective January 1, 2022, this law requires covered warehouses to provide a written description of any quota to which an employee is subject, such as tasks to be performed or products generated. The explanation must provide potential adverse actions for failure to meet the quota. Covered warehouses are those with 100 or more employees at a single warehouse center, or 1,000 or more at one or more warehouses in the state.
- Employers may not take adverse action against employees who fail to meet undisclosed quotas, or quotas that do not allow a worker to comply with rest, health, and safety laws.
- Upon request of a current or former employee who believes that a quota violated their right to rest periods or laws protecting their health and safety, an employer must provide a written description of each quota and the most recent 90 days of the employee’s work speed data.
- AB 1003: (Intentional wage theft will be punishable as grand theft).
- Intentional theft of wages, including gratuities, greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees, by an employer in any consecutive 12-month period will be punishable as grand theft.
- Any wages, gratuities, benefits, or other compensation that are the subject of a prosecution under these provisions can be recovered as restitution.
- Independent contractors are included within the meaning of employee and hiring entities of independent contractors are included within the meaning of employer for the purposes of these provisions.
- SB 657: (Employers will be permitted to distribute required employment-related posters via e-mail).
- Employers may distribute any information that they are required to physically post to employees via email.
- However, the distribution by email will not change the employer’s obligation to physically display the required posting.
- SB 606: (Cal/OSHA can issue citations for two new categories of health and safety violations).
- There will be a rebuttable presumption that an employer’s written policy that violates specified health and safety regulations exists at all of the employer’s worksites.
- Cal/OSHA can issue an “egregious violation” if one of seven criteria is true; the egregious violation carries specified additional penalties.
- Cal/OSHA will have the power to seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation.
- Cal/OSHA has the authority to issue a subpoena during an inspection if the employer fails to promptly provide the requested information.