New Employment-Related Laws for 2022 That California Employers Need to Know
The California Legislature again had a busy session and passed a number of laws that will materially impact California employers and their business operations. Below is a list of some of the key employment-related bills that have been signed into law by Governor Gavin Newsom. For a more comprehensive summary of these bills and others, we suggest you sign up for our complimentary webinar on November 30, 2021, where we will discuss these bills and others in a more in-depth format.
All new laws listed below take effect on January 1, 2022, unless otherwise noted.
Wage and Hour - Warehouse Distribution Employees - AB 701: Requires employers with large warehouse distribution centers (employers with 100 or more employees at a single warehouse distribution center or 1000 or more employees at one or more warehouse distribution centers in California) to provide employees with “a written description of each quota to which the employee is subject to, including the quantified number of tasks to be performed or materials to be produced or handled, within a defined period of time, and any potential adverse employment action that may result from failure to meet the quota.” The bill prohibits an employer from taking adverse action against an employee for failure to meet a quota that has not been disclosed or for failure to meet a quota that does not allow a worker to receive compliant meal periods, rest periods, or protection under occupational health and safety laws.
Expansion of CFRA - AB 1033: Amends the California Family Rights Act (CFRA) to include parents-in-law to the list of family members with serious health conditions for which an employee can take leave under CFRA.
COVID-19 Reporting - AB 654: Amends and revises the language of AB 685 with respect to the employer’s COVID-19 reporting obligations to its employees regarding COVID-19 related benefits and information after potential COVID-19 exposure. Employers are now required to give notice to the local public health agency of a COVID-19 outbreak, and to give that notice within 48 hours or one business day, whichever is later. The bill also expands the types of employers that are exempt from the COVID-19 outbreak reporting requirement to various licensed entities, including, but not limited to, community clinics, adult day health centers, community care facilities, and child daycare facilities. By way of urgency legislation, AB 654 took effect on October 5, 2021.
Settlement Agreement Language Limitation Expansion - SB 331 (“Silenced No More Act”): Broadly prohibits non-disclosure provisions (of factual information related to a claim filed in a civil action or a complaint filed in an administrative action) in settlement agreements involving workplace harassment or discrimination based on any protected status under the Fair Employment and Housing Act (FEHA), not just based on sex. It does not prohibit the entry or enforcement of a provision that precludes the disclosure of the amount paid in settlement of a claim. The bill also limits the use of non-disparagement or other contractual provisions in employment agreements, including but not limited to separation agreements, even if no civil action or complaint is filed. Any non-disparagement agreement, separation agreement, or other contractual provision that restricts an employee’s ability to disclose information related to workplace conditions must include the following language: “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.” Separation agreements that include such provisions must notify employees that they have at least five business days to consider the agreement and that they have a right to consult an attorney regarding the agreement.
Tip Distribution for Food Delivery Employees - AB 286: This bill makes it unlawful for a food delivery platform to retain any portion of amounts designated as a tip or gratuity. Instead, it requires a food delivery platform to pay any tip or gratuity for a delivery order, in its entirety, to the person delivering the food or beverage, and to pay any tip or gratuity for a pickup order, in its entirety, to the food facility.
Personnel Records Retention and SOL Tolling - SB 807: Extends the current personnel records retention requirement to 4 years. The bill also tolls the deadline for the DFEH to file a civil action pursuant to the FEHA while a mandatory or voluntary dispute resolution is pending. When a complaint is filed with DFEH for an alleged violation of certain laws, the time for complainants to file their own civil actions under those provisions would be tolled until either the DFEH files a civil action or one year after the DFEH issues written notice to the complainant that it has closed its investigation and elected not to file a civil action.
Criminalization of Wage Theft - AB 1003: This bill makes the intentional theft of wages, including gratuities, in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees, by an employer in any consecutive 12-month period punishable as grand theft. The bill specifically authorizes wages, gratuities, benefits, or other compensation that are the subject of a prosecution under these provisions to be recovered as restitution. This bill includes independent contractors within the meaning of employee.
Expanding Enforcement Rights of Labor Commissioner - SB 572: Authorizes the Labor Commissioner to create a lien on real property to secure amounts due from the cited parties named in the final citation, findings, or decision with the county recorder of any county in which the parties’ real property may be located.
CAL-OSHA Presumption Creation - SB 606: Creates a rebuttable presumption that a workplace safety violation committed by an employer that has multiple worksites is enterprise-wide if the employer has a written policy or procedure that violates certain health and safety regulations, or the division has evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer’s worksites. In addition, each instance of an employee exposed to an “egregious violation” will be considered a separate violation for purposes of the issuance of fines and penalties (a violation is an “egregious violation” if one or more factors are present as outlined in the statute). The bill also expands Cal-OSHA’s enforcement power in a variety of respects. The division may now issue and enforce a subpoena if an employer fails to promptly provide requested information, and may seek an injunction restraining certain uses or operations of employment if it has grounds to issue a citation.
Again, for more information regarding these and other important employment laws for 2022, key judicial decisions, and important regulatory developments affecting California employers in the new year, please register and tune in to our annual employment law update webinar scheduled on November 30, 2021, at 9:30 a.m. My partner Mark S. Spring and I will be conducting the webinar and we hope to see you there. Webinar registration is available here.