California Workplace Compliance
News & Resources
Welcome to California, land of opportunity, lawsuits, wealth, unemployment, highways, droughts, earthquakes, agriculture, Hollywood, Silicon Valley, farmland, beaches, deserts, forests, national parks and crowded urban centers. Or, to put it simply: Welcome to California, land of contradictions.
For years, companies have alternately benefited from and bemoaned California’s business climate. While a broad population of consumers and a constant influx of skilled workers make it easy to build a business, the state’s complex and onerous regulatory laws make it difficult to survive and achieve sustained growth.
Stay on top of safety and compliance the right way with this California-specific information but be sure to seek legal counsel when you’re looking for how these changes will directly impact your business. Wherever available, KPA products are updated with the latest government notices and posters for employers.
California Safety News
If you haven’t done so yet, it’s time to calculate your 2023 CDTFA fees. Two specific fees will need to be paid based on your business practices and employee counts: the Generation and Handling Fee and the Environmental Fee. Most businesses may need to setup an CDTFA account.
Generation and Handling Fee
The Generation and Handling Fee is an annual fee paid by businesses that generates more than five tons of hazardous waste in the applicable reporting period. Please note that if this is your first year paying the fee you may have to manually add this as a business activity in the CDTFA portal. The CDTFA will not proactively add this business activity.
Examples of hazardous wastes typically generated at an automotive dealership that are subject to this annual fee include but aren’t limited to:
- Used motor oil
- Waste coolant
- Waste paper filters
- Oily water
- Waste paper filters
- Non-manifested universal waste
- Recycled hazardous waste (including recycled oils)
You will need to determine the amount of hazardous waste your dealership produce and calculate the cost of your fees.
Calculating Your Fee
The Generation and Handling fee is charged at a flat rate per ton (or fraction of a ton) on hazardous waste generated during the applicable reporting period. For this year, this is waste produced in the calendar year 2022. Submittals are required for each generator site which is determined by individual EPA ID number. Please note this is referred to as the Dec 2023 filing in the CDTFA portal.
If you do not know the amount of hazardous waste generated, you can contact your hazardous waste hauler to determine the amount of hazardous waste generated. Fees are calculated at $49.25/ton or fraction of a ton. As you enter tonnage data into the CDTFA portal, the system will calculate the fee for you.
The initial payment was due on November 30, 2023. This should have been equal to 50 percent of the total amount due for the hazardous waste generation and handling fee. The final payment for your fees is due February 28, 2024. If you didn’t make your prepayment, you should make a full payment at this time.
Environmental Fee
The Environmental Fee is an annual fee paid by businesses and organizations that use, generate, store, or conduct activities related to hazardous materials. All businesses, unless otherwise exempted, are subject to the hazardous waste environmental fee if they have 100 employees or more that worked greater than 500 hours during the calendar year 2023.
Exemptions are limited to specific businesses that provide residential social and personal care for children, the aged, and persons with limited capacities.
Simply enter the number of employees in the CDTFA portal and the portal will calculate the applicable fees
In February 2023, California’s Office of Administrative Law approved the COVID-19 Prevention – Non-Emergency Standard. It classifies COVID-19 as a permanent workplace hazard for employers to address. It’s now in effect for the next 2 years until February 3, 2025. Recordkeeping obligations are in place through 2026.
The permanent non-emergency standard:
- Modified definitions for “close contacts,” “infectious period,” and “returned case.”
- Allows employers to address COVID-19 procedures in their written Injury and Illness Prevention Plan (IIPP) or maintain a separate document.
- Requires employees to be trained on the new regulation requirements.
- Removes daily symptoms check. Encourage employees to stay home when they’re sick.
- Eliminates exclusion pay — employers do not have to maintain an excluded employee’s earnings and benefits.
- Permits employers to put up a poster for 15 days in a noticeable area of the facility, such as a break room, to notify employees about close contacts.
- Stipulates reporting major outbreaks (20+ employee cases) to Cal/OSHA. However, employers don’t need to report them to local health departments unless specifically instructed to do so.
- Requires that employers make COVID-19 testing immediately available to employees during work hours at no cost when there’s a major outbreak.
Resources
- Standards Comparison (old ETS vs. non-emergency standard)
- What Employers Need to Know Fact Sheet
- Cal/OSHA Guidance
Last year, California Senate Bill 158, took effect and removed used oil and other wastes that were previously exempt from hazardous waste fees.
The hazardous wastes typically generated at an automotive dealership that are now subject to this annual fee include:
- Recycled hazardous waste (including recycled oils)
- Non-manifested universal waste
- Waste sent outside California for disposal
- Used motor oil
- Waste coolant (CA Code 134)
- Oily water (CA Code 223)
- Waste paper filters (CA Code 352 or 223)
Additionally, under California’s Department of Toxic Substances Control (DTSC), if you dispose of used metal oil filters as hazardous waste, those filters must be added to your hazardous waste tonnage calculations. NOTE: If you punch or crush metal oil filters, they can be disposed of as scrap metal and aren’t subject to this hazardous waste fee.
You will need to determine the amount of hazardous waste your dealership produces and calculate the cost of your fees.
Calculating Your Fee
The Generation and Handling (GH) fee for hazardous waste is calculated using a flat rate per ton or fraction of a ton on hazardous waste generators for each generator site that produces 5 or more tons of hazardous waste in California within a calendar year.
Your fee for the previous calendar year must be calculated and submitted to the California Department of Tax and Fee Administration (CDTFA) annually on the last day of February. Your fee may include:
- Environmental Fees
- Generation and Handling Fees
Environmental Fees: All businesses, unless otherwise exempted, in certain industry groups identified by the DTSC that have the *qualified number of employees who are each employed for more than 500 hours in California, during the calendar year, are subject to the hazardous waste environmental fee.
*Beginning January 1, 2022, the qualifying number of employees is 100 or more workers have that worked more than 500 hours during the calendar year.
Generation and Handling Fees: For sites that produce 5 or more tons/year, the fee calculation rate is $49.25/ton or fraction of a ton. As you enter tonnage data into the CDTFA portal, the system will calculate the fee for you.
The final payment for your fee is February 28, 2023 (after the reporting period).
If You Don’t Know Your Tonnage
- Contact your dedicated waste hauler to determine your total tonnage.
- Register online with the CDTFA and complete the fee process.
- Keep records of the fee completion
- Consult with your tax consultant on the calculation of your fee and recordkeeping requirements
California HR News
Who: California healthcare employers
When: Effective June 1, 2024
On October 13, 2023, Governor Gavin Newsom signed SB 525 into law, which enacts a minimum wage for covered healthcare workers, effective June 1, 2024. Per SB 525 Section 1182.14(b)(2)(A), a healthcare employee is one who works for a healthcare facility and provides patient care, healthcare services, or services supporting the provision of health care. It also applies to contractors if their work would otherwise be considered covered work and the healthcare facility directly or indirectly exercises control over the contractor’s wages, hours, or working conditions.
Most healthcare facilities are considered “covered,” including, but not limited to, medical hospitals, psychiatric hospitals, skilled nursing facilities, home health agencies, and patients’ homes when healthcare services are delivered by an entity owned or operated by a general acute care hospital.
The applicable minimum wage depends on the type of healthcare facility. There are four minimum wage schedules that go into effect on June 1, 2024. For large healthcare systems with 10,000 or more full-time employees and all dialysis clinics, the minimum wage is $23.00 per hour. For small healthcare systems, which include various types of clinics and skilled nursing facilities, the minimum wage is $21.00 per hour. For hospitals with high populations of Medi-Cal/Medicaid patients, the minimum wage is $18.00 per hour. For all other covered healthcare facilities, the minimum wage is $21.00 per hour.
These rates are significantly higher than the state’s current minimum wage of $16.00 per hour for all workers.
The law also establishes a new standard for salaried employees. Covered employers must ensure that salaried employees earn a monthly salary equivalent to the greater of 1) at least 150% of the health care worker minimum wage or 2) 200% of the applicable minimum wage.
How:
- Determine which type of facility you are running per SB 525.
- Update your minimum wage and salaried employee policies to comply with the law.
- Consult with legal counsel as needed.
Additional Resources:
Who: California fast food employers
When: Effective immediately
On March 25, 2024, Governor Gavin Newsom signed AB 610 into law, which adds exceptions to the FAST Recovery Act. The Act went into effect on April 1,2024, which increases the minimum wage to $20.00 per hour for fast food workers.
Per AB 610, the fast food minimum wage doesn’t apply to restaurants located in an airport, on corporate campuses, or on certain public lands owned by the city, county, or state. AB 610 also exempts restaurants connected to or operated in conjunction with hotels, event centers, theme parks, gambling establishments, or public or private museums. These restaurants are exempted because they do not have the same characteristics as traditional fast-food restaurants. Their employment structures are different; they are often subject to concession or food-service contracts and operated as part of a larger enterprise.
How:
- Consult legal counsel if you are unsure whether your business is exempt from the fast food minimum wage per AB 610.
Additional Resources:
Who: California employers
When: Effective immediately
In the ruling on Huerta v. CSI Electrical Contractors, a California class action lawsuit, the court stated that California employers must compensate employees for time spent waiting for security checks to be conducted on the way in or out of the employer’s premises. Specifically, the court said that employer-mandated exit procedures that require a representative of the employer to visually inspect the employee’s personal vehicle are compensable time.
The judge determined that in this particular case, the employer was exercising sufficient control over the employee to warrant a ruling of compensable time. The exit procedure could take five to 30 minutes because the employee had to wait for the procedure to be completed for the vehicles in line in front of them. Compensable time does not include swiping or showing a badge to gain access to the employer’s parking lot.
Employers should move time clocks outside of the security screening area so employees can clock in or out after bag or vehicle screening is complete.
Employers must also be mindful of compensating employees for required rest and meal periods in California. Huerta argued that the employees were owed meal premiums because they were required to be on the premises during their meal periods. The court ruled that meal periods count as “hours worked” if the employer prohibits the employees from leaving the premises during the meal period and the restriction prevents the employees from otherwise engaging in personal activities.
Lastly, the court ruled that the time the employee spends traveling from an employer’s security gate and the employee parking lot is not compensable time. However, it is compensable as employer-mandated travel if a security gate is the first location an employee is required to be for an employment reason other than accessing the worksite.
How:
- Review your entry and exit procedures.
- Determine whether you must pay employees for time spent waiting for security screening.
- Review your policies and procedures related to required meal and rest breaks, travel time requirements, security procedures, and limitations on employee movement or activities during off-duty time.
- Consult with legal counsel as needed.
Additional Resources:
Who: California employers
When: Effective Immediately
Some California employers were confused about how the paid sick leave law applied to part-time employees. California’s Division of Labor Standards Enforcement (DLSE) released FAQs to clarify.
The law states that as of January 1, 2024, employers must provide at least 40 hours or five days of paid sick leave per year. Employees earn paid sick leave at the rate of one hour for every 30 hours worked. Employers must accrue a minimum of 24 hours of paid sick leave by the 120th day of employment or of the year or 12-month period and a minimum of 40 hours by the 200th day of employment or of the year in a 12-month period. Employers may choose to accrue the leave as earned or by frontloading the entire amount.
The FAQs clarify that the 1:30 accrual schedule (one hour of paid sick leave for every 30 hours worked) schedule was intended to apply to full-time workers. Employers who use that accrual method are considered to be in compliance with the law with regard to part-time employees, even if they don’t meet the 120th and 200th-day benchmarks.
How:
- Post the Paid Sick Leave Notice in the workplace.
- Ensure your paid sick leave policies comply with the law as it pertains to part-time employees.
Additional Resources:
California Paid Sick Leave: Frequently Asked Questions
Who: California employers
When: Effective immediately
On September 28, 2023, Governor Gavin Newsom signed AB 1228 into law, which increases the minimum wage to $20.00 per hour for nonexempt fast food restaurant employees, effective April 1, 2024.
To be considered exempt, an administrative, professional, or executive employee must make $83,200 per year ($1,600 per week) and meet other specific requirements of California Labor Code section 515. To be considered a fast food restaurant, it must be a limited-service restaurant with limited or no table service, part of a chain of at least 60 establishments nationwide, and be primarily engaged in selling food and beverages for immediate consumption. Bakeries that make or sell bread and grocery establishments are exempt.
The California Department of Industrial Relations has released a Fast-Food Minimum Wage FAQ to help employers understand the AB 1228 law.
How:
- Post the Supplement for Fast Food Restaurant Employees Wage Order in the workplace.
Additional Resources:
California Labor Code section 515
Supplement for Fast Food Restaurant Employees Wage Order
Who: California employers
When: Effective July 1, 2024
Ahead of California’s new workplace violence prevention law (SB 553) going into effect, the California Department of Industrial Relations released a Model Written Workplace Violence Prevention Plan for the General Industry. The model plan is a fill-in-the-blank plan with examples. It “provides the essential framework to identify, evaluate, and control workplace violence hazards.” Employers may use the model plan or create their own.
The agency published a Workplace Violence Prevention in General Industry Information for Employers Fact Sheet to give employers additional guidance on the requirements of the law. It covers some of the key statutory requirements, such as what a compliant workplace violence prevention plan must contain, how to log workplace violence incidents, employee training, and recordkeeping.
The agency also published a Workplace Violence Prevention in General Industry for Employees Fact Sheet to provide employees with additional guidance. It defines four types of workplace violence, explains how to prevent workplace violence, and discusses the rights of employees.
The workplace violence prevention law requires employers to adopt procedures by July 1, 2024, for receiving and responding to reports of workplace violence, emergency response procedures, evacuation and sheltering-in-place plans, and investigation procedures, among others. Employees must be involved in creating the plan and receive interactive training. Employers must periodically review the plan and update it as needed.
How:
- Complete the model Workplace Violence Prevention Plan or use it as the basis for your own.
- Create a compliant training program.
- Train supervisors on the recordkeeping requirements.
Additional Resources:
Model Written Workplace Violence Prevention Plan for the General Industry
Workplace Violence Prevention in General Industry Information for Employers Fact Sheet
Workplace Violence Prevention in General Industry Information for Employees Fact Sheet
Who: California employers
When: Effective immediately
After a ruling in a lawsuit brought by the California Chamber of Commerce, enforcement of the California Consumer Privacy Act (CCPA) was set to go into effect on March 29, 2024—delayed from the original effective date of July 1, 2023. The California Privacy Protection Agency and the California Attorney General appealed the decision, and on February 9, 2024, the court ruled that enforcement of the law may begin immediately. The law applies to the privacy of consumer and employee data.
The rules affected by the most recent ruling relate to transparency requirements, honoring requests to exercise privacy rights, requirements for service providers and third parties, the handling of children’s and teens’ data, training, and recordkeeping. The California Chamber of Commerce has filed an appeal to attempt to reverse the decision.
How:
- Review and update your CCPA notices and privacy policies and distribute them to employees and B2B partners.
- Update your procedures and forms to comply with the law.
- Train employees involved with CCPA compliance on the new rules.
- Verify that your vendors have procedures in place to comply with the law.
Additional Resources:
Who: California employers
When: Effective immediately
California enacted AB 51 to prevent employers from requiring applicants and current employees to sign a mandatory arbitration agreement as a condition of employment. A federal district court judge has permanently enjoined California from enforcing AB 51, including Labor Code Section 432.6 and Government Code Section 12953, because it is preempted by the Federal Arbitration Act (FAA). What this means is that employers may choose to require arbitration agreements as a condition of employment as long as the agreements are covered by the FAA.
Not all arbitration agreements are covered by the FAA. The FAA generally applies to any business involved in interstate commerce but it exempts employment contracts with seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.
How:
- Review your employment arbitration agreements to ensure they state that the agreements are covered by the FAA.
- Review all new-hire documents to make sure they do not contain language mandating arbitration.
- Continue to monitor for challenges to FAA exemptions and new legislative attempts to prohibit arbitration.
Additional Resources:
Chamber of Commerce of the USA et al. v. Becerra et al
Who: California janitorial employers
When: Effective immediately
AB 547 passed in 2019, which requires janitorial employers to provide two hours of in-person sexual harassment and sexual violence prevention training once every two years for all employees, including supervisors and nonsupervisors. The requirements of the law were suspended due to the COVID-19 pandemic. Now that the COVID-19 public health emergency has ended, the Division of Labor Standards Enforcement has ordered a resumption of the training.
A covered employer is defined as any person or entity that employs at least one covered worker or otherwise engages by contract, subcontract, or franchise agreement for the provision of janitorial services by one or more covered workers. A covered worker is defined as an individual predominantly working as a janitor, including employees, independent contractors, and franchisees. The U.S. Department of Labor defines janitorial work in the Service Contract Act Directory of Occupations (SCADO). AB 547 defines exemptions to the covered worker definition.
Employers must use the content developed by the Labor Occupational Health Program (LOHP), which is available on the Department of Industrial Relations website.
Employers must work with a qualified organization to provide the required in-person training. Employers that cannot find a qualified trainer to provide the training may use a trainer as prescribed by the Civil Rights Department to fulfill their obligations under Labor Code section 1429.5.
How:
- Provide the required training to all supervisory and nonsupervisory personnel.
Additional Resources:
California Labor Code section 1429.5.
Article 6. Sexual Violence and Harassment Prevention Training for Property Service Workers
SCA DIRECTORY OF OCCUPATIONS Fifth Edition
Qualified Organization Application Process
Sexual Harassment Prevention Training for Janitorial Services Employers
Sexual Violence and Harassment Prevention Training for Supervisors
Sexual Violence and Harassment Prevention Training for Workers
Who: California employers
When: Effective immediately
The California Civil Rights Department published an updated version of the “California Law Prohibits Workplace Discrimination and Harassment” poster, which employers must post where it’s visible to employees. The poster includes information about protections for taking bereavement leave or leave for reproductive loss (under SB 848), as well as information about prohibitions against discrimination based on an applicant’s use of cannabis outside of the workplace (under SB 700).
If more than 10% of employees speak a language other than English, employers must also display the poster in that language.
How:
- Post the updated California Law Prohibits Workplace Discrimination and Harassment poster.
Additional Resources:
California Civil Rights Department Required Posters
California Law Prohibits Workplace Discrimination and Harassment Poster
Who: California employers
When: Effective immediately
As of January 1, 2024, employers must update their Wage Theft Prevention Notice for nonexempt employees to comply with AB 636. The wage theft notice must now include information about federal and state declarations of emergency or disaster and health and safety issues that:
- Apply to the county(ies) where the employee is to be employed;
- Are issued within 30 days before the employee’s first day of employment; and
- May affect the employee’s health and safety during their employment.
Another change employers must include is the amount of paid sick leave available to employees, which has increased from three days or 24 hours to five days or 40 hours (under SB 616). This includes the accrual and request for paid sick leave.
Employers are not to retaliate or terminate employees for exercising their right to use paid sick leave.
The California Labor Commission has a template notice that employers may use in lieu of creating their own. Employers that create their own notice must include all required information.
How:
- Post an updated Wage Theft Prevention Notice.
- Consult with legal counsel as necessary to ensure compliance with the law.
Additional Resources:
Who: California employers
When: Effective immediately
As of January 1, 2024, employers must update their Wage Theft Prevention Notice for nonexempt employees to comply with AB 636. The wage theft notice must now include information about federal and state declarations of emergency or disaster and health and safety issues that:
- Apply to the county(ies) where the employee is to be employed;
- Are issued within 30 days before the employee’s first day of employment; and
- May affect the employee’s health and safety during their employment.
Another change employers must include is the amount of paid sick leave available to employees, which has increased from three days or 24 hours to five days or 40 hours (under SB 616). This includes the accrual and request for paid sick leave.
Employers are not to retaliate or terminate employees for exercising their right to use paid sick leave.
The California Labor Commission has a template notice that employers may use in lieu of creating their own. Employers that create their own notice must include all required information.
How:
- Post an updated Wage Theft Prevention Notice.
- Consult with legal counsel as necessary to ensure compliance with the law.
Additional Resources:
Who: California employers with 5 or more employees
When: Effective January 1, 2024
Governor Gavin Newsom signed SB 848 into law on October 11, 2023, which establishes unpaid leave for employees who experience a reproductive loss event. Such event is defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The law applies to California employers with five or more employees. To be eligible, an employee must have worked for an employer for at least 30 days.
Employees can take a leave of absence for up to five days, and they can take the leave non-consecutively but must generally take the leave within three months of the triggering event for the leave. Total leave in a 12-month period may not exceed 20 days. Employees do not have to document the reason for the leave, and employers cannot retaliate against employees who take the leave. Employers must maintain the confidentiality of persons requesting leave.
Leave is unpaid unless the employer has an applicable leave policy in place. In that case, eligible employees may use accrued and available sick leave, vacation time, or other paid time off.
How:
- Decide whether reproductive loss leave will be paid or unpaid based on your existing leave policies.
- Update your leave policies and employee handbooks to comply with the law.
- Train HR personnel, managers, and supervisors on this law.
Additional Resources:
Who: California employers with 5 or more employees
When: Effective January 1, 2024
Governor Gavin Newsom signed SB 848 into law on October 11, 2023, which establishes unpaid leave for employees who experience a reproductive loss event. Such event is defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The law applies to California employers with five or more employees. To be eligible, an employee must have worked for an employer for at least 30 days.
Employees can take a leave of absence for up to five days, and they can take the leave non-consecutively but must generally take the leave within three months of the triggering event for the leave. Total leave in a 12-month period may not exceed 20 days. Employees do not have to document the reason for the leave, and employers cannot retaliate against employees who take the leave. Employers must maintain the confidentiality of persons requesting leave.
Leave is unpaid unless the employer has an applicable leave policy in place. In that case, eligible employees may use accrued and available sick leave, vacation time, or other paid time off.
How:
- Decide whether reproductive loss leave will be paid or unpaid based on your existing leave policies.
- Update your leave policies and employee handbooks to comply with the law.
- Train HR personnel, managers, and supervisors on this law.
Additional Resources:
Who: California employers
When: Effective January 1, 2024
Beginning January 1, 2024, the California minimum wage will be $16.00 an hour for all employers, an increase from $15.50 in 2023. Some cities and counties have different minimum wage requirements that could be higher than $16.00, and employers need to ensure they are paying their employees in accordance with those regulations.
The increase in minimum wage changes the overtime exemption limits for professional, executive, and administrative employees as well. To be considered exempt, an employee must earn a minimum annual salary of $66,560 and meet the duties requirements. The overtime exemption rate for software employees will increase to an annual salary of $115,763.35.
Employers must post the Minimum Wage Order and the Wage Order applicable to their workplace where they are visible to all employees. They must update their Wage Theft Protection Act Notice with the new minimum wage and overtime exemption rates.
Employees who are not being paid minimum wage may file a wage claim by contacting the California Labor Commissioner’s Office Call Center at 833-526-4636.
How:
- Update your notices for minimum wage and wage theft prevention with the new minimum wage and overtime exemption rates and issue them within seven calendar days of the effective date of the new rates.
- Review your exempt employee classifications.
- Audit your payroll processing procedures to ensure compliance with the law.
Additional Resources:
California Labor Code Section 515.5.
Who: California employers
When: Effective January 1, 2024
Governor Gavin Newsom signed SB 699 into law on September 1, 2023, which adds Section 16600.5 to the California Business and Professions Code. The law goes into effect January 1, 2024, and expands the already significant restrictions on noncompete agreements between employers and employees. Business and Professions Code section 16600 currently provides, with limited exceptions for the sale or dissolution of corporations, partnerships, and LLCs, that “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” SB 699 makes it unlawful for employers to enforce agreements that are void and unenforceable under section 16600 irrespective of when or where the agreement was entered into.
In other words, the law allows California courts to invalidate restrictive covenants in noncompete agreements even if they were signed in another state, if the employee is located in another state, or if the employee resided in another state at the time they signed the agreement. SB 699 also prohibits employers from entering into contracts with employees that have a provision that is void per section 16600.
An existing, former, or prospective employee may bring a civil action to obtain injunctive relief or to recover actual damages, or both. If they prevail, they are entitled to recover reasonable attorney’s fees and costs.
Governor Newsom also signed AB 1076 into law on October 13, 2023, which states that the courts should broadly interpret the new law so that any contract that restrains a person from engaging in a lawful profession, trade, or business is void. In addition, the law requires employers to notify current and former employees in writing by February 14, 2024, if a noncompete agreement they signed is void under the new law. They must send the notice to the employee’s last known address and email address. Employers who do not comply are subject to civil penalties.
Companies outside of California that have employees in California or employees who subsequently move to California are subject to these laws and they need to determine how they’re going to handle noncompete agreements going forward.
How:
- Review and revise your restrictive covenants and noncompete agreements to comply with the law.
- Prepare to send notices to employees whose noncompete agreements are void under the law.
- Consult with legal counsel as necessary to ensure compliance with the law.
Additional Resources:
Who: California employers
When: Effective January 1, 2024
On October 7, 2023, Governor Gavin Newsom signed SB 700 into law, which bans employer discrimination against applicants and employees for prior use of cannabis and provides additional protections for those who use cannabis while off duty. SB 700 impacts the hiring process and amends the Fair Employment and Housing Act (FEHA), effective January 1, 2024. Governor Newsom signed AB 2188 on September 18, 2022, which also goes into effect on January 1, 2024. The law prohibits employers from taking adverse employment action against workers who use cannabis while off duty.
Employees may not be impaired while on the job. Employers can still maintain a drug-free workplace; test for controlled substances and active impairment/THC; and conduct criminal background checks, as long as they meet the requirements of the law. Employers may no longer test for non-psychoactive cannabis metabolites. Employees may not bring cannabis to the workplace.
Federal contractors, employers in the construction industry, and employers who hire or employ workers who must have a security clearance are exempt from SB 700 and AB 2188.
How:
- Review and revise your drug use, drug testing, and anti-discrimination policies as needed to comply with the law.
- Review and revise your employment applications and other new-hire documentation as needed to comply with the law.
Additional Resources:
Who: California employers
When: Effective January 1, 2024
On October 4, 2023, Governor Gavin Newsom signed SB 616 into law, which amends the Healthy Workplaces, Healthy Families Act of 2014. It increases the amount of paid sick leave from 24 hours or three days (whichever was greater) per year to 40 hours or five days per year.
Employees accrue one hour of paid sick leave for every 30 hours worked. Employers can choose how to accrue the time but must make sure to accrue 1) 24 hours of paid sick leave by the 120th calendar day of employment and 2) at least 40 hours of paid sick leave by the 200th calendar day of employment.
Employers can frontload paid sick leave, in which case they are not obligated to roll over unused time at the end of the year. If they do not frontload the leave, they must roll it over. The cap is now 80 hours or 10 days instead of 48 hours or six days.
The amendment impacts all California employers regardless of size and applies to all full-time, part-time, and temporary workers who qualify for paid sick leave. Employees must work in California for at least 30 days for the same employer to be eligible.
Employees that are party to a collective bargaining agreement are exempt from the law. Employers must take into consideration local paid sick leave laws that may provide for more sick leave and protections than this new law does.
How:
- Monitor for the release of an updated Paid Sick Leave Notice.
- Update your sick leave/PTO policies, training materials, and employee handbooks to comply with the law.
- Ensure your payroll system and pay stubs comply with the law.
- Train supervisors, managers, and HR personnel on the new law.
Additional Resources:
Who: Covered Berkeley, California employers with 10 or more employees
When: Effective January 12, 2024
Effective January 12, 2024, Berkeley, California employers in certain industries with 10 or more employees working in the City of Berkeley must adhere to the new Fair Workweek Ordinance. Specifically, it applies to these organizations:
- Workers are primarily engaged in the building services, healthcare, hotel, manufacturing, retail, or warehouse services industries, and the business employs 56 or more employees globally;
- Workers are primarily engaged in the restaurant industry, and the business employs 100 or more employees globally;
- Workers that are franchisees primarily engaged in the retail or restaurant industries and associated with a network of franchises with franchisees employing 100 or more employees globally in total; and
- Section 501 not-for-profit corporations in the industries specified under subsection (a)(1), (2), and (3) and that employ 100 or more employees globally.
Covered employees are those who qualify for minimum wage and work at least two hours in a work week in Berkeley.
Employers must provide a written, good-faith estimate of a new hire’s schedule that indicates the minimum hours they will be expected to work. The employee may request a modification, which the employer can accept or reject. The employer must notify the employee in writing of their decision prior to or on the first day of employment.
At least 14 days in advance, an employer must notify current employees of their schedules. They can post it in a conspicuous place that is visible and available to all employees or send it to employees electronically.
Employers must offer additional hours first to qualified current employees before hiring a new employee to cover those hours. Employees have 24 hours to respond in writing if they choose to accept the extra work.
Covered employers have to notify employees of schedule changes within 24 hours. An employee can turn down unscheduled hours if the employer gives the employee notice less than 14 days before the first day of the schedule.
An employer must pay the employee predictability pay when they change the employee’s schedule under certain circumstances. If the employer adds or subtracts hours, moves a scheduled shift to another date or time, cancels a shift, or adds a previously unscheduled shift to the schedule with less than 14 days’ notice and more than 24 hours’ notice, the employer must pay one hour of predictability pay at the employee’s regular rate of pay.
When the employer takes any of those actions with less than 24 hours’ notice, the employer must pay four hours of predictability pay, or the number of canceled or reduced hours in the employee’s scheduled shift, whichever is less, or when hours are canceled or reduced. For all other changes with less than 24 hours’ notice, they must pay one hour of predictability pay. Just because an employee agrees to work additional hours or shifts, that action does not exempt the employer from predictability pay.
Predictability pay is not required under certain circumstances, such as when two employees mutually agree to swap shifts or cover each other’s shifts.
An employee is allowed to decline work hours that occur less than 11 hours after the end of the previous day’s shift or during the 11 hours following the end of a shift that spanned two days. If the employee accepts such shifts, the employer must pay one and one-half times the employee’s regular rate of pay for any hours worked less than 11 hours following the end of a previous shift.
The City Manager’s Department will enforce the law, which includes prohibitions against retaliation. The fine for retaliation is $1,000, and $500 for other offenses.
How:
- Provide written notice of employee rights under the law to each employee and to new employees upon hire.
- Post the notice of the Fair Workweek Ordinance in the workplace.
- Review your scheduling practices and procedures and update them as needed to comply with the law.
- Train managers on the law.
- Monitor for the release of additional regulations and guidance.
Additional Resources:
Who: California employers
When: Effective July 1, 2024
On September 30, 2023, Governor Newsom signed legislation that will require workplaces to adopt and implement a workplace violence prevention plan, document any threats or workplace violent incidents, and train employees. Cal/OSHA has been designated as the enforcement agency for this new law.
The prevention plans must cover:
- The name and title of responsibile individual for program implementation.
- Procedures for receiving and responding to reports of workplace violence
- Employers are prohibited from retaliating against an employee who reports an incident
- How employees can report a violent incident, threat, or other concern to their employer or law enforcement without fear of retaliation
- Procedures for alerting employees of the presence, location, and nature of a workplace violence emergency
- Evacuation or sheltering-in-place plans
- How reports will be investigated and how employees will be informed of the results
- Procedures for enlisting employees in developing and implementing the violence prevention plan
- The review of the plan for effectiveness and revising it as needed
How:
- KPA will continue to monitor this topic for additional information from Cal/OSHA as the effective date nears.
Additional Resources:
Who: California employers
When: Effective October 1, 2023
The California Civil Rights Department finalized and adopted regulations for the Fair Employment and Housing Act (FEHA) on July 24, 2023, effective on October 1, 2023. The regulations relate to the law that governs whether employers may or may not inquire about and use an applicant’s criminal history in employment decisions. Changes and clarifications include:
- Employers may not add statements to job advertisements, postings, applications, or other related material that say they won’t consider applicants with a criminal history.
- Existing law states that employers may not request or use criminal history information until after they have made a conditional offer of employment. Applicant is now defined as “an existing employee who is subject to a review and consideration of criminal history because of a change in ownership, management, policy or practice.” The prohibition now also applies to current employees regarding promotion, training, discipline, lay-off, or termination decisions.
- If an applicant discloses their criminal history voluntarily before receiving a conditional offer of employment, an employer may not use the information until they make the conditional offer (unless the employer is required by law to conduct the background check per the new regulations).
- The regulations include additional examples of relevant evidence when an employer performs an individualized assessment.
- The definition of employer is now “any entity that evaluates an applicant’s conviction history on behalf of an employer, or acts as an agent of an employer, directly or indirectly.”
- Employers must now conduct an “initial” individualized assessment before sending the notice of preliminary decision.
- The regulations give examples of the types of evidence of rehabilitation or mitigating evidence an applicant or employee may provide. Employers cannot require specific documentary evidence or refuse to consider information the applicant or employee presents.
- The regulations give examples of evidence to consider when conducting an assessment.
- The regulations add factors employers may want to consider during reassessment.
- The regulations clarify how “received” is defined as it relates to the preliminary decision notice being sent to the applicant/employee.
How:
- Update your screening policies as they apply to background checks, applications, offer letters, adverse actions notices, guidance for recruiters, and other similar documents to comply with the regulations.
- Consult with legal counsel to ensure compliance.
- Train managers and HR personnel on the revised law.
Additional Resources:
Who: California employers
When: Effective immediately
On July 24, 2023, the California Supreme Court ruled in Woodworth v. Loma Linda Univ. Med. Ctr. The case was a PAGA claim a registered nurse who worked at the Loma Linda Medical Center brought against her employer. She claimed that the Center had violated wage and hour rules by using timecard rounding practices and thereby avoided paying her overtime compensation that was due. The employer rounded time punches to the nearest tenth of an hour, and they had deemed it neutral because neither the center nor the employees had a systematic advantage.
The Court ruled against Loma Linda, noting that current technology makes it easy to accurately track all employee hours worked and therefore rounding is not permitted. Employers need to consider discontinuing timecard rounding practices and paying compensation based on the actual punch-in and punch-out times to ensure they are paying employees for all hours worked.
How:
- Conduct a wage and hour audit that includes overtime, timekeeping, pay structure, and meal and rest periods. Update your policies as needed.
Additional Resources:
Who: California employers
When: Effective immediately
On July 17, 2023, the California Supreme Court ruled in Adolph v. Uber Technologies, that 1) the Federal Arbitration Act (FAA) requires PAGA plaintiffs to arbitrate their individual claims and that 2) these individual plaintiffs have standing to pursue representative PAGA claims in court.
Specifically, the Court stated, “Where a plaintiff has brought a PAGA action comprising individual and non-individual claims, an order compelling arbitration of the individual claims does not strip the plaintiff of standing as an aggrieved employee to litigate claims on behalf of other employees under PAGA.” However, the ruling requires that such plaintiffs pursue non-individual claims on behalf of others only after their individual claims are arbitrated and they are found to be an “aggrieved employee.” If the arbitrator does not find that the plaintiff has been aggrieved, the plaintiff may not move forward with non-individual claims.
California employers can no longer rely on the U.S. Supreme Court Viking River Cruises v. Moriana ruling, which held that an employee’s individual PAGA actions could be separated from their non-individual PAGA actions and compelled to arbitration, leaving the non-individual claims to be dismissed for lack of standing. Employers may still enforce and compel arbitration of individual PAGA claims under arbitration agreements governed by the FAA.
How:
- Review your arbitration agreements with legal counsel to ensure compliance.
- Audit the wage and hour practices that include overtime, timekeeping, pay structure, as well as meal and rest policies.
- Train employees and managers on the wage and hour policies and practices.
Additional Resources:
Who: California employers
When: Effective immediately
On July 1, 2004, the Industrial Wage Commission (IWC)—which regulates wages, hours, and working conditions through wage orders in California—was defunded. Except for wage orders regarding minimum wage, other wage orders have not been updated since 2001.
On July 10, 2023, California Governor Gavin Newsom signed Assembly Bill 102, which is effective immediately and amends the Budget Act of 2023. Assembly Bill 102 allots $3 million to re-fund the IWC. The agency will be restaffed, make final recommendations for updating the wage orders by January 1, 2024, and issue new wage orders by October 31, 2024.
How:
- Familiarize yourself with IWC procedures so that you can have a voice in IWC and wage board hearings.
Additional Resources:
Who: California employers
When: Effective immediately
On July 14, 2023, California Attorney General Rob Bonta announced that his office is conducting an investigative sweep of large employers’ employment data to ensure compliance with the California Consumer Privacy Act (CCPA). Investigators will determine if companies are compliant with data privacy and consumer protection requirements as they relate to employees and job applicants.
As of January 1, 2023, the CCPA gives all employees the same rights that other consumers under the CCPA have related to data collected from or about them. The scope of employees includes:
- Current and former employees;
- Family members, dependents, beneficiaries, and emergency contacts of current and former employees;
- Job applicants; and
- Independent contractors.
How:
- Review your privacy notices and policies and ensure you have updated and distributed them as required.
- Implement a system for receiving and responding to CCPA requests from job applicants and employees.
- Ensure your vendors who store covered data are in compliance with the CCPA.
Additional Resources:
Who: California employers
When: Effective date delayed until March 29, 2024
The California Privacy Rights Act (CPRA) was set to go into effect July 1, 2023, but a California court ruling on June 30, 2023, has resulted in a postponement of the implementation of the regulations until March 29, 2024. The California Chamber of Commerce brought the suit in light of the fact that businesses had only three months to come into compliance with the regulations.
Th ruling appears to only apply to the California Consumer Privacy Act (CPPA) regulations. Therefore, employers should still comply with the CPRA provisions that were on the ballot initiative (i.e., the statutory text itself). Employers should take this time to come into compliance, because the process can be a lengthy one.
How:
- If you haven’t already, update your CCPA notices and privacy policies.
- Ensure you are compliant with the requirements that are enforceable right now.
- Finalize your plan to come into compliance with the regulations that go into effect on March 29, 2024.
- Train employees involved with CCPA compliance on the new rules.
Additional Resources:
Who: California employers
When: Effective immediately
On May 22, 2023, the California Supreme Court ruled in People ex rel. Garcia-Brower V. Kolla’s, Inc, which expands whistleblower protections by reinterpreting the term “disclosure” under California’s Labor Code Section 1102.5(b). Previously, whistleblowers were not protected from retaliation if they brought a complaint against an employer for an alleged violation of the law that the employer or a government agency already knew about it.
In the Kolla’s ruling, the Court stated that disclosure “includes protection for disclosures made to ‘another employee who has the authority to investigate… or correct the violation,’ without regard to whether the recipient already knows of the violation.” In this case, the employer already knew it was in violation of wage laws by withholding payment to the employee. Even so, the Court said that the employer’s retaliatory actions—including termination, threatening to report her to immigration authorities, and telling her not to return to work—were unlawful under Section 1102.5(b).
California’s whistleblower law promotes compliance with employment-related laws and regulations and protects employees that disclose violations. Employers can’t retaliate against employees who report violations.
How:
- Be mindful of reports of misconduct, properly investigate them, and ensure compliance with the law.
- Revise your policies and procedures as needed to comply with the ruling.
- Provide code of conduct training.
- Post the California Whistleblower Protections Notice.
Additional Resources:
Who: California private employers with 5 or more employees
When: Effective July 1, 2023
California SB 731 goes into effect July 1, 2023, which expands the “Clean Slate” law related to sealing criminal records. Records of felonies for non-violent crimes committed after January 1, 2005, will be automatically sealed as long as certain conditions are met. California private employers with five or more employees may not lawfully rely on records of such crimes to make hiring decisions after conducting employment background checks on applicants. The law is intended to help formerly incarcerated Californians rehabilitate and obtain a job more easily.
For the record of the felony to be sealed, the convicted individual must have completed their required incarceration, probation, mandatory supervision, parole, and any other terms of their conviction, and have gone at least four years with no new felony offenses. The law does not apply to registered sex offenders or those who have committed more serious crimes, such as murder, manslaughter, rape, kidnapping, attempted murder, assault with a deadly weapon, robbery, or similar crimes.
How:
- Review and update your policies to comply with the law.
Additional Resources:
Who: California employers
When: Effective immediately and will be enforced on July 1, 2023
The California Privacy Protection Agency (CPPA) Office of Administrative Law approved new California Privacy Rights Act (CPRA) regulations on March 29, 2023, which were effective immediately and will be officially enforced starting July 1, 2023. The new regulations are intended to help clarify how the CPPA will enforce the CPRA, which governs the collection and processing of California residents’ personal data. Non-compliance with CPRA could be as high as $2,500 per violation, with each instance potentially creating separate violations.
The regulations include:
- Prohibitions against using “dark patterns” to manipulate individuals into sharing personal data;
- Treating global privacy controls as valid opt-out requests;
- Guidance on how to offer the right to limit the processing of sensitive data, plus six exemptions; and
- How the CPPA shall conduct investigations and hearings and take action against violators.
How:
- Review and update your privacy notice to applicants and employees.
- Align your website with the regulations.
- Create a data collection policy that is compliant with the CPRA.
- Provide training to all employees.
Additional Resources:
California Consumer Privacy Act Regulations Final Regulations
Who: Los Angeles, California employers
When: Effective July 1, 2023
Effective July 1, 2023, the City of Los Angeles California minimum wage will increase to $16.78 per hour. The City of Los Angeles Office of Wage Standards announced the $0.74 per hour increase on February 1, 2023, and stated they had calculated the increase based on the increase in the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W) for the Los Angeles metropolitan area.
The minimum wage applies to employees who perform at least two hours of work in any week within the geographic boundaries of Los Angeles and are entitled to payment of minimum wage under California law.
Employers must post the required notice in English and any language spoken by at least 5% of the employees at the workplace or job site.
How:
- Post the new minimum wage poster.
Additional Resources:
Who: San Francisco, California employers
When: Effective Immediately
San Francisco employers covered by the Health Care Security Ordinance and/or Fair Chance Ordinance must submit their 2022 annual Employer Annual Reporting Form to the Office of Labor Standards Enforcement (OLSE) by May 1, 2023. The report demonstrates compliance with San Francisco’s Health Care Security Ordinance and/or Fair Chance Ordinance.
The Fair Chance Ordinance prohibits employers from asking job applicants about arrest or conviction records until after they issue a conditional offer of employment. The Health Care Security Ordinance requires employers to make health care contributions for covered employees.
An employer is covered by the Health Care Security Ordinance in a calendar quarter if it:
- Employs one or more workers within the geographic boundaries of the City and County of San Francisco;
- Is required to obtain a valid San Francisco business registration certificate; and
- Is a for-profit business with 20 or more persons performing work or a nonprofit organization with 50 or more persons performing work.
An employer is covered by the Fair Chance Ordinance if it:
- Has five or more employees worldwide or
- Contracts with the City and County of San Francisco (no matter the number of employees).
Noncompliant employers may be fined up to $500 per quarter.
How:
- Submit your report to OLSE by May 1, 2023.
- Post the City & County of San Francisco Health Care Ordinance Poster and San Francisco Fair Chance Ordinance Poster.
Additional Resources:
City & County of San Francisco Health Care Security Ordinance Poster
City & County of San Francisco Fair Chance Ordinance Poster
Submit an Employer Annual Reporting Form to OLSE
Who: California employers
When: Effective immediately
On March 23, 2023, Governor Gavin Newsom signed SB 41, which states that California’s new meal and rest period requirements don’t apply to airline cabin crew employees when:
- The employee is covered by a valid collective bargaining agreement under the Railway Labor Act and
- The agreement contains any provision addressing their meal and rest periods.
The exemption also applies to the first 12 months an employee is part of a craft or class of employees represented by a labor organization pursuant to the Railway Labor Act but that employee is not yet covered by a valid collective bargaining agreement.
This law resolves long-standing contradictions between federal and state laws. It fixes the contradiction between the Federal Aviation Administration law, which says flight attendants must remain on duty at all times during a flight, and the California state law, which previously stated that all employees must be off duty during meal and rest breaks and allowed to leave the premises.
How:
- Update your policies and practices to comply with the law.
Additional Resources:
Who: California private employers with 100 or more employees
When: Submit pay data by May 10, 2023
On February 2, 2023, the California Civil Rights Department (CRD) announced that the California pay data reporting portal is open. Per Government Code Section 12999, California private employers with 100 or more employees and at least one employee working in California must file the California Pay Report with the CRD by May 10, 2023.
The California legislature implemented the reporting requirements to encourage large employers to self-audit pay disparities and comply with equal pay and anti-discrimination laws.
The filing requirement applies whether or not the employer files an EEO-1 report with the federal government. In addition, employers may no longer file an EEO-1 report with the CRD to satisfy the reporting requirement.
The pay data must include pay, pay band, and hours worked for each employee who works in California. Additional data required this year includes:
- Mean and median hourly rate of employees by establishment,
- Job category,
- Race/Ethnicity, and
- Sex.
Senate Bill 1162 became effective on January 1, 2023. In response, the CRD enhanced the reporting portal, user guide, and FAQs. Another change this year is that employers must file a separate Labor Contractor Employee Report for contractors hired in the previous year.
How:
- Submit pay data on the California Pay Data Reporting Portal by May 10, 2023.
Additional Resources:
California Pay Data Reporting Frequently Asked Questions
California Civil Rights Department Pay Data Reporting Website
Who: California employers
When: Effective immediately
On February 15, 2023, the 9th U.S. Circuit Court of Appeals blocked California AB 51, which bans the use of mandatory arbitration agreements with employees and applicants. In its opinion on the U.S. Chamber of Commerce v. Bonta case, the court said AB 51 is preempted by the Federal Arbitration Act.
For now, California employers can require new hires to sign arbitration agreements as a condition of employment, including clauses related to claims for unpaid wages and discrimination, and causes of action under the Labor Code and the Fair Employment and Housing Act. However, the State of California can still appeal this decision.
How:
- Consult with legal counsel to review your arbitration agreements and ensure compliance with the law.
- Continue to monitor for possible legal appeals.
Additional Resources:
Who: San Francisco, California private employers with 100 or more employees
When: Effective immediately
On February 16, 2023, the San Francisco Office of Labor Standards Enforcement released FAQs related to paid military leave. The FAQs clarify provisions of the Military Leave Pay Protection Act (MLPPA), which requires private employers in San Francisco, California that employ 100 or more employees worldwide to pay supplemental compensation for employees on military leave for up to 30 days each calendar year.
The FAQs address several issues, including how to calculate business size, what is defined as “San Francisco,” how to provide notice of rights and responsibilities to employees, and how to calculate and pay supplemental compensation.
The FAQs state that employers should provide employees notice of their right to supplemental compensation within “a reasonable time” after the employee gives notice that they have received written military orders and will require time off work. Employers that have employee handbooks must include a description of employees’ rights to supplemental compensation in the next edition of their handbook. In cases of foreseeable absences, employers may require employees to comply with “reasonable” notice procedures.
When calculating supplemental compensation, the employer must subtract gross military pay from gross pay the employee would have received for the time they would have worked in San Francisco, including overtime but excluding tips. Employers must also provide the same benefits during the leave period as they otherwise would have.
To determine hours that “would have been worked” for employees that don’t have a regular schedule, the employer must use a lookback period of the three monthly pay periods, six bi-weekly or semi-monthly pay periods, or 12 weekly pay periods immediately preceding the military leave. The FAQs specify that employers should make a good faith effort to pay the supplemental compensation no later than the payday for the payroll period when the military leave began.
Employers must keep records related to an employee’s schedule, hours worked, and military leave taken for four years.
How:
- Review and update your policies to comply with the law and update your handbooks as required.
- Provide a notice of employee rights when an employee requests military leave.
- Mail the notice of employee rights to employees once a year.
- Monitor for future FAQs, regulations, a notice poster, and a model compensation request form on the San Francisco, California website.
Additional Resources:
Military Leave Protection Act Ordinance No. 008-23
San Francisco Private Sector Military Leave Pay Protection Act Implementation Guidance FAQs
San Francisco Understanding the Military Leave Pay Protection Act
Who: San Mateo County, California employers
When: Effective April 1, 2023
Effective April 1, 2023, the San Mateo County minimum wage will increase to $16.50 per hour. If the employee is subject to state and federal minimum wage laws, they are entitled to the higher rate.
The San Mateo County minimum wage is distinct from that of the City of San Mateo. Starting January 1, 2024, the county will increase minimum wage by the lesser of 5% or the percentage equal to the prior year’s increase in the Consumer Price Index.
Employers must post the San Mateo County labor law poster and provide a notice of minimum wage rate to new employees.
How:
- Post the labor law poster.
- Provide notice of the minimum wage rate to new employees.
Additional Resources:
Who: Los Angeles, California employers with 300 or more employees
When: Effective April 1, 2023
The Los Angeles Fair Work Week ordinance will go into effect on April 1, 2023, which regulates retail businesses with employees who work in the city that have 300 or more employees globally. Covered employees are those that work at least two hours during a work week within the city of Los Angeles and who qualify for minimum wage.
Employers must provide employees written notice of their work schedules at least 14 calendar days prior to the first day of the schedule. Employers may post the work schedules or provide them to employees electronically. Employees have a right to decline any hours not included in the original work schedule. If an employee consents to work the changed hours, consent must be in writing.
An employer must pay the employee premium pay (i.e., “predictability pay”) if they change the employee’s schedule. The compensation is one additional hour of pay at the regular rate for a) a schedule change that does not result in a loss of time to the employee or b) a schedule change that adds more than 15 minutes of additional work time to the employee. If the change in the schedule reduces the employee’s work time by at least 15 minutes, the employer must pay the employee one-half of the time the employee does not work as set forth in the initial schedule. Predictability pay is not required under certain circumstances, such as when the employee makes the schedule change request or when the extra hours worked will result in overtime pay.
Other provisions of the ordinance include:
- Unless the employee consents otherwise in writing, the employer must give them at least 10 hours of rest between shifts. In cases where the employee didn’t get 10 hours of rest, the employer has to pay time and a half for the shift.
- Employers must provide a good faith estimate of a work schedule and notice of rights to new employees upon hire or within 10 days of an employee’s request.
- Employees have the right to request certain hours, times, or locations of work. Denials of such a request must include an explanation and be in writing.
- Employers must offer additional work hours to current employees before hiring new employees, unless the additional work results in overtime pay.
- Employers may not require employees to find coverage for their shift if they are unable to work for reasons protected by law.
- Employers must maintain all related records for three years.
- Employers must post a notice in the workplace—published each year by the DAA—that informs employees of their rights. The notice must be posted in the required specified languages.
The City of Los Angeles may fine employers up to $500 per violation per employee. Employees may also file a private right of action for violations after notifying the employer and allowing 15 days to cure violations. The ordinance contains an anti-retaliation provision for exercising rights under the law.
How:
- Once it has been released, post the required notice and provide it to employees.
- Review and update your scheduling policies and procedures to comply with the law.
- Notify your payroll department or service of the rules for predictability pay.
- Train managers, supervisors, and HR personnel on the law.
- Monitor for additional related regulations and guidance.
Additional Resources:
Who: San Francisco, California private employers with 100 or more employees
When: Effective February 19, 2023
San Francisco Mayor London Breed signed the Military Leave Pay Protection Act on January 20, 2023, which provides differential paid leave for military reservists that must report to active duty on or after February 19, 2023. The Military Protection Act applies to all private employers with 100 or more employees, regardless of where they work.
Military duty is defined as “active military service in response to the September 11, 2001, terrorist attacks, international terrorism, the conflict in Iraq, or related extraordinary circumstances, or military service to provide medical or logistical support to federal, state, or local government responses to the COVID-19 pandemic, natural disasters, or engagement in military duty ordered for the purposes of military training, drills, encampment, naval cruises, special exercises, Emergency State Active Duty, or like activity.” The ordinance applies to part-time and full-time employees but excludes those covered by a collective bargaining agreement that expressly waives the requirements of the ordinance.
Employers must pay those called up to active duty the difference between military pay and the amount of pay they would have received from their employers working their “regular work schedule” for up to 30 days.
An employee has the right to bring a civil action for an alleged violation but first must provide a written notice to the City of San Francisco. If the City does not file a lawsuit or give the complainant notice within 90 days, the employee can move forward with a suit. Legal relief could include payment of unlawfully withheld supplemental compensation, interest, liquidated damages in the amount of $50 per day per person, the amount of unlawfully withheld supplemental compensation multiplied by three or $250, whichever is greater, and reasonable attorneys’ fees and costs.
How:
- Continue to monitor San Francisco California website for additional guidelines.
- Update your military leave policies and procedures to comply with the law.
Additional Resources:
Who: California employers with 15 or more employees and at least one employee in California
When: Effective immediately
The California Labor Commissioner released updated FAQS for the California Equal Pay Act that clarify the pay transparency requirements that took effect on January 1, 2023. Employers that must include the pay scale in their job postings include those with 15 or more employees and at least one employee in California. The law applies to jobs that can be filled remotely or in person. When counting employees, employers must include all those who performed compensable work except for bona fide independent contractors.
Pay scale is defined as the salary or hourly wage that the employer reasonably expects to pay for the position, including piece rate or commissions. Benefits do not have to be included in the job posting. The pay scale must be listed in the posting itself, not via a link or QR code. If an employer uses a third party to post jobs, they must provide the pay scale to them so they can include it in the job posting.
Employers must retain records pertaining to pay disclosure for the length of employment plus three years. Violations of the law are subject to civil penalties of $100 to $10,000 per violation.
How:
- Update your policies to comply with the law.
- Review all current job postings to ensure compliance with the new law.
- Provide training to managers and HR personnel on the provisions of the law.
Additional Resources:
Who: California employers
When: Effective January 1, 2023
On September 5, 2022, Governor Gavin Newsom signed California Assembly Bill 257, known as the Fast Food Accountability and Standards (FAST) Recovery Act, which is effective January 1, 2023. It is the first law in the United States to enact workplace rules and standards specific to fast-food employees. The law applies to non-unionized fast-food chains with 100 or more locations.
A 10-member Fast-Food Sector Council will determine standards for working conditions, training, minimum wage, and maximum working hours. The members will be worker advocates and state representatives. The Council will hold public hearings every six months and convene every three years to establish and review standards. Their new standards must go through the Office of Administrative Law rulemaking process and do not have to be approved by the legislature. The standards will go into effect the following October 15th unless legislators enact laws to prevent them from taking effect.
AB 257 allows for the formation of city and county councils, which can make their own recommendations to the statewide Council. In addition, local jurisdictions can pass their own more protective local standards.
The Labor Commissioner will enforce the law and has the power to file a civil action against alleged violators. The law also allows covered employees to bring private causes of action against employers for discharge, discrimination, or retaliation for exercising rights established by the FAST Recovery Act.
The law has complex potential implications. The Council is authorized to mandate a substantially higher minimum wage for fast-food workers than the state’s existing minimum wage, which could have a domino effect of higher consumer prices and jobs lost to technological innovations.
How:
- Update your policies, employee handbooks, and other documentation to comply with the law.
- Train employees on the requirements of the new law.
Additional Resources:
Who: California employers
When: Effective January 1, 2023
On September 29, 2022, Governor Gavin Newsom signed California Assembly Bill 1041, which amends the California Family Rights Act (CFRA). The law applies to California private and public employers with five or more employees and is effective January 1, 2023. Under existing law, employees may take CFRA job-protected leave for a child, parent, parent-in-law, grandparent, grandchild, sibling, spouse, or registered domestic partner. The law adds the term “designated person” to this list and defines such a person as “any individual related by blood or whose association with the employee is the equivalent of a family relationship.”
The law allows up to 12 weeks of unpaid sick leave to care for a designated person with a serious illness. Employers may limit an employee to only one “designated person” in a 12-month period.
AB 1041 also amends the California Paid Sick Leave Law to include a “designated person.” The California Paid Sick Leave Law (Healthy Workplaces Healthy Families Act (HWHFA) applies to California employers of all sizes. An employee that works more than 30 days can qualify to take time off. Under this law, designated person is defined as “a person identified by the employee at the time the employee requests paid sick days.” The designated person does not have to be related by blood or have a relationship equivalent to a family relationship. As under CFRA, an employer may limit an employee to taking leave for only one designated person in a 12-month period.
The law creates further complexities when it comes to coordination with state and local laws, California’s Paid Family Leave law, and federal unpaid family medical leave law. The California Civil Rights Department and the California Department of Industrial Relations Commissioners Office may release additional guidance.
How:
- Update your policies, protocols, and forms related to the California Family Rights Act and Paid Sick Leave (Healthy Workplaces Healthy Families Act).
- Monitor the California Civil Rights Department and the California Department of Industrial Relations Commissioners Office websites for additional guidance or proposed rules.
- Monitor the California Civil Rights Department for updated posters, guides, and fact sheets.
Additional Resources:
California Civil Rights Department
California Department of Industrial Relations Labor Commissioner’s Office
California Civil Rights Department Posters Guides and Fact Sheets
Who: California private and public employers with five or more employees
When: Effective January 1, 2023
On September 29, 2022, Governor Gavin Newsom signed California Assembly Bill 1949, which amends the California Family Rights Act (CFRA). Effective January 1, 2023, private and public employers with five or more employees must provide up to five days of bereavement leave under the California Family Rights Act (CFRA) when an employee’s family member dies and the employee requests the leave.
Under the California Family Rights Act, the definition of a family member for bereavement leave includes spouses, children, parents, siblings, grandparents, grandchildren, domestic partners, and parents-in-law. The employee must complete the leave within three months of the person’s passing. Employees may take the bereavement leave on nonconsecutive days.
To qualify for the leave, employees must have worked for the employer for at least 30 days. Employees must take the leave pursuant to the employer’s existing leave policy. If an employer has an existing policy in place that pays employees for bereavement leave, this leave must be paid. If the employer does not have a policy in place, the leave is unpaid. An employee may use their accrued paid vacation or sick leave in order to take the bereavement leave as paid leave.
It is unlawful for employers to discriminate or retaliate against employees who exercise their right to use bereavement leave.The law requires the employer to maintain employee confidentiality relating to the leave and contains an antidiscrimination provision. Employers may require certain documentation as proof of the passing of a family member.
AB 1949 does not apply to employees who are covered by a valid collective bargaining agreement that provides for bereavement leave under specific circumstances as described in the bill.
How:
- Update your bereavement leave policies to comply with the law.
- Monitor the California Civil Rights Department for updated posters, guides, and fact sheets.
Additional Resources:
California Civil Rights Department Posters, Guides, and Fact Sheets
Who: California employers
When: Effective January 1, 2023
The California Department of Industrial Relations has published its thresholds for employers to qualify for salary exemptions for computer professionals and physicians in the new year. Employers must pay computer professionals a minimum of $112,065.20 a year, or $9,338.78 per month, or an hourly wage of $53.80. Employers must pay physicians and surgeons at least $97.99 per hour to qualify for the exemption.
The duties test under California Labor Code Section 515.5 remains unchanged. The increase in the exemption threshold is indexed to the California Consumer Price Index for Urban Wage Earners and Clerical Workers, which has increased by 7.6%.
How:
- Review employee compensation and job duties for computer professionals and physicians and update your policies and procedures as needed to comply with the law.
Additional Resources:
Who: California employers
When: Effective January 1, 2023
Governor Gavin Newsom signed SB 1044 into law on September 29, 2022, which becomes effective January 1, 2023. The new law allows employees to leave work or refuse to report to work during an “emergency condition,” and prohibits employers from taking or threatening adverse action against employees for exercising their rights under the law when they have a reasonable belief that the workplace or worksite is unsafe.
An employee must notify the employer of the emergency condition they believe justifies them leaving work or refusing to report to work. The definition of emergency conditions is “conditions of disaster or extreme peril… caused by natural forces or a criminal act,” or an “order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.” The definition specifically excludes health pandemics. The law details other conditions when it does not apply.
The law prohibits employers from keeping an employee from accessing their mobile or another communication device to seek emergency assistance, assess their safety, or communicate with another person to confirm their safety.
The law excludes many categories of employees, including emergency responders and those who provide direct patient care. Refer to the bill to see a list of the exclusions.
How:
- Update your policies and procedures as needed to comply with the law.
Additional Resources:
Who: California employers
When: Effective January 1, 2023
Effective January 1, 2023, the employee exception to privacy rules that was written into the California Consumer Privacy Act (CCPA) expires. Under the new law, California’s Privacy Rights Act (CPRA), employees, applicants, emergency contacts, beneficiaries, independent contractors, and members of board of directors will now have the same privacy rights as other consumers:
- To know which personal information the employer has collected;
- To request that the information be deleted or corrected;
- To access their personal information;
- To know which personal information the employer sells or shares and to/with whom and the right to opt out of such use; and
- To limit the use of sensitive personal information.
Personal information is defined as “information that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or household.” Sensitive personal information includes data that reveals an individual’s personal information, such as passwords or a Social Security number.
Employers must give employees notice of their rights under the CPRA and create a mechanism for employees to exercise their rights. The law also includes an anti-retaliation provision for exercising one’s rights under the law.
In addition to the removal of the employee exception, the CPRA removes the exception for business-to-business (B2B) transactions. Businesses now have to give the businesses they transact with notice of their rights under the law and protect the information as they do for any consumer.
A business may deny a request to delete or amend personal information if it would be impossible to do, if it involves disproportionate effort, or if it is manifestly unfounded or excessive. The employer bears the burden of proof and should document all denials in detail.
How:
- Consult with legal counsel as needed to ensure compliance with the CPRA requirements.
- Work with HR and IT to map the personal information you collect about employees and B2B transactions, along with the personal information that your service providers and third parties collect on your behalf.
- Update your right-to-privacy notices and distribute them to employees and B2B partners.
- Amend agreements with service providers who handle employment-related information and vendors who handle your B2B information.
- Update your policies, procedures, and forms to comply with the new privacy laws.
- Provide training to employees on the updated privacy laws.
Additional Resources:
Who: California employers
When: Effective January 1, 2023
Governor Gavin Newsom signed AB 1601 into law on September 29, 2022, which goes into effect on January 1, 2023. The law states that employers of customer service employees in a call center are not allowed to move their call centers or one or more of their facilities or operating units within a call center to a foreign country unless they give prior notice in compliance with the California Worker Adjustment and Retraining Act (Cal/WARN).
Covered employers under Cal/WARN are industrial or commercial facilities that operate a call center and employ or have employed 75 or more people in the preceding 12 months. AB 1601 defines a call center as a facility or other operation where workers receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions as their “primary function.”
Under the new law, the Employment Development Department (EDD) will publish a list of employers that must provide notice of relocation in order to comply with AB 1601.
How:
- Review and update your internal policies and documentation as needed to comply with the law.
Additional Resources:
Who: California employers with 15 or more employees
When: Effective January 1, 2023
Governor Gavin Newsom signed SB 1162—a pay transparency law—on September 27, 2022, which goes into effect on January 1, 2023. The law requires all employers to provide the pay scale for a position to an applicant who requests it and to a currently employed employee who requests it for their own position. In addition, all employers must maintain job title and wage history records for all employees for the length of employment, plus three years.
There are additional requirements that apply to employers with 15 or more employees. First, employers must include the pay scale in all job postings. A pay scale is defined as the salary or hourly range that the employer reasonably expects to pay for the position. Second, if an employer uses a third party to post jobs, they must provide the pay scale to the third party so they can add it to the job posting.
Since 2020, private employers with 100 or more employees have had to submit pay data to the California Civil Rights Department (CRD) each year. SB 1162 changes the due date for that data to the second Wednesday in May 2023, and the second Wednesday of every year after. The data includes the number of employees by race, ethnicity, and sex for 10 job categories during a single pay period between October 1 and December 31 of the prior year.
Under SB 1162, covered employers must report the median and mean hourly rate for each job category and each combination of race, ethnicity, and sex. SB 1162 eliminates the requirement for employers with multiple establishments to also file a report for all employees as a consolidated unit. Employers with 100 or more employees that were hired through labor contractors must submit a separate report to the CRD.
Employers that violate the pay transparency law face penalties of $100 and $10,000 per violation. Employers that violate the pay data reporting requirements face penalties of $100 per employee for the first violation and up to $200 per employee for each additional violation.
Employers must retain wage rate history and job titles for all employees for at least three years after termination.
How:
- Determine the pay scales for existing positions.
- Update your policies to comply with the law.
- Ensure that all job postings for open positions include pay scale information.
- Consider completing a pay equity audit.
- Update your record retention policies.
Additional Resources:
