2022 will provide no exception to the ever-shifting nature of California employment law. Governor Gavin Newsom signed many new laws affecting California employers in 2022. Some of the new laws of particular importance are listed below. The effective date of each new law is indicated in the headings.
All California employers should ensure they are aware of, and understand, how these laws may impact their operations.
AB 654: Notification of COVID-19 Exposure
AB 1506: AB 5 Exemption for Newspaper Distributors and Carriers
AB 1561: Exemptions from AB 5 for Certain Industries
AB 286: Food Delivery and Facility Personnel Will Keep Tips
AB 1003: Wage Theft Is “Grand Theft”
AB 73: PPE Requirements for Wildfire Smoke Events and Agricultural Workers
SB 331: “Silenced No More Act”—Settlements and Severance Agreements
SB 657: Electronic Delivery of Workplace Notices
SB 606: Workplace Safety—Enterprise-Wide and Egregious Health and Safety Violations
SB 639: Sub-Minimum Wages—Persons with Disabilities
SB 62: Hourly Wages Required for Garment Workers
SB 646: PAGA Exemption for Unionized Janitors
AB 654: Notification of COVID-19 Exposure (effective October 5, 2021)
In response to the COVID-19 outbreak, the California Legislature previously enacted strict exposure notification and reporting requirements. AB 654 adds to those prior requirements, shortening the time employers have to notify authorities of COVID-19 cases and narrowing the definition of “worksite.” This law took immediate effect on October 5, 2021 and is set to expire on January 1, 2023.
The new law adjusts the reporting timeframe that employers must follow to notify local public health agencies from 48 hours to 48 hours or one business day, whichever is later. Employers should pay particular attention to the duty to provide written notice to employees and take note that the definition of “worksite” specifically excludes telework. In addition, in a multi-worksite environment, the employer need only notify employees who were at the same worksite as the infected individual.
AB 1506: AB 5 Exemption for Newspaper Distributors and Carriers (extended to January 1, 2025)
AB 1506 extends for three more years the temporary exemption for newspaper publishers and distributors from the application of the “ABC test” established in Dynamex. The bill also imposes critical reporting requirements on publishers and distributors to ensure that they are complying with the multifactor test for employment status previously adopted in S.G. Borello & Sons, Inc. v. Department of Industrial Relations.
AB 286: Food delivery and Facility Personnel Will Keep Tips (effective January 1, 2022)
The COVID-19 pandemic generated a sharp increase in the use of food delivery services with more and more people staying home to decrease the spread of COVID-19. AB 286 requires more transparency in food delivery services by making it unlawful for a food delivery platform to charge a customer any purchase price that exceeds the price posted on their website. This new law also prohibits food delivery platforms from retaining any portion of amounts designated as a tip or gratuity. Instead, the food delivery platform must pay the entire tip to the delivery person, and any tip for a pickup order directly to the food facility. AB 286 also requires the Company to disclose information on its platform related to fees, commissions, and all costs charged.
AB 1003: Wage Theft Is “Grand Theft” (effective January 1, 2022)
AB 1003 makes the intentional theft of wages by an employer punishable as grand theft if the wages equal more than $950 from any one employee, or $2,350 from a group of employees. Wages, gratuities, benefits, or other compensation that are the subject of a prosecution under these provisions can be recovered as restitution. Importantly, independent contractors are included within the meaning of employee, and entities that hire independent contractors are included within the meaning of employer.
AB 73: PPE Expanded Wildfire Protections for Agricultural Workers (effective September 27, 2021)
California has seen a large increase in the number of wildfires in recent years. This bill comes on the heels of the worst wildfire season in California’s history. Due to the urgency to address the effects of wildfire smoke on workers, AB 73 took immediate effect upon its enactment on September 27, 2021. AB 73 broadens the scope of current protections and specifies that wildfires are considered health emergencies for purposes of providing personal protective equipment (“PPE”) for essential workers. AB 73 requires that agricultural workers be given access to the stockpile of PPE required under existing law. AB 73 accomplishes this by including agricultural workers in the law’s definition of essential workers.
SB 331: “Silenced No More Act”: Settlements and Non-disparagement Agreements (effective January 1, 2022)
SB 331 has been dubbed the “Silenced No More Act.” The law extends the prohibition on confidentiality provisions in settlement agreements to all forms of workplace discrimination—not just discrimination based on sex. It basically renders useless non-disclosure agreements in settlement agreements entered into on or after January 1, 2022, in cases of harassment and discrimination in the workplace.
SB 331 also limits the use of non-disclosure agreements as a condition of employment or in severance agreements. The law makes it unlawful for an employer to include in its employment and severance agreements any provision that prohibits the disclosure of information about unlawful acts in the workplace. Also under this new law, an employee who is offered a severance agreement must be notified that they have the right to consult with an attorney. The employer must provide a reasonable time (not less than five business days) for consultation.
SB 657: Electronic Delivery of Workplace Notices (effective January 1, 2022)
Existing law requires employers to post a range of printed statements on workplace laws and required procedures. SB 657 is a small change to assist employers with remote workers. SB 657 provides that information employers are required to physically post may be distributed via email with document(s) attached. Notably, the new law merely allows employers to provide required notice via email and does not negate employer’s pre-existing obligation to post physical copies of such notices in workplaces. This means employers may email certain mandatory posters to teleworkers to print (at the employer’s expense) and post int their home offices—so long as the employer also physically posts the required postings in its primary workplace. SB 657 is limited to California law only and doesn’t affect federal minimum wage and Family and Medical Leave Act posting requirements.
SB 606: Workplace Safety: Enterprise-Wide and Egregious Health and Safety Violations (effective January 1, 2022)
SB 606 expands the California Occupational Safety and Health Administration’s (“Cal/OSHA”) enforcement power to address workplace safety violations in a few important ways. The law establishes two new types of violations: (1) enterprise-wide violations, and (2) egregious violations (both terms are explained below), with the largest expected impact on employers with multiple worksites such as big-box retailers.
The new law creates a rebuttable presumption that employers with multiple worksites have made enterprise-wide workplace safety violations in certain circumstances. It basically creates a provision that assumes that a violation in one location is evidence of a violation at another location and shifts the burden to the employer to prove otherwise.
An egregious violation may be found in several different circumstances. A violation may be egregious if, for example, the employer intentionally‑through conscious voluntary action or inaction‑made no reasonable effort to eliminate a known violation, or if a violation results in worker fatalities, a worksite catastrophe, or many injuries or illnesses. Egregious violations also may be found if the violations resulted in persistently high rates of worker injuries or illnesses, or if the employer has an extensive history of prior violations. For egregious violations, penalties may be assessed on a “per employee” basis, rather than a per incident basis, thus creating much greater liability exposure for employers.
SB 639: Sub-Minimum Wages: Persons with Disabilities (effective January 1, 2022)
Before SB 639 was passed, employers could apply to the Industrial Welfare Commission for a special license, renewable yearly, to hire an employee with disabilities to work for less than the minimum wage. This framework was designed to incentivize employers to integrate people with mental or physical disabilities into the workplace; employers would be permitted to pay a lower wage in exchange for hiring individuals who they might not otherwise consider. California law has long allowed for persons with disabilities to be granted a “license” to work for less than the minimum wage at a rate set by the Industrial Welfare Commission. Under SB 639, new special licenses may no longer be issued as of January 1, 2022.
SB 62: Hourly Wages Required for Garment Workers (effective January 1, 2022)
Historically, fashion companies have not been responsible for the proper payment of wages or treatment of garment workers, often hiring garment factories as third-party contractors to outsource the risk to them. SB 62 imposes joint and several liability for brand guarantors and garment manufacturers for payment of wages to their contractors’ employees. (A brand guarantor is defined as a person contracting for the performance of garment manufacturing, regardless of whether the person with whom they contract performs manufacturing operations or hires a contractor or subcontractor to perform manufacturing operations.) The new law also limits garment manufacturers’ ability to use a piecework pay framework, a pervasive system in which workers are paid per garment. There is a limited exemption for employees covered by certain collective bargaining agreements. The new law makes California the first state to require hourly wages for garment workers.
SB 646: PAGA Exemption for Unionized Janitorial Employees (effective January 1, 2022)
SB 646 creates a limited exemption from the Private Attorneys General Act of 2004 for certain janitorial employees covered by a valid collective bargaining agreement (“CBA”). The exemption only applies to work performed under a valid CBA in effect any time before July 1, 2028, and which expressly provides for the wages, hours of work, and working conditions of employees, as well as providing premium wage rates for all overtime hours worked. The PAGA exemption will expire the date the CBA expires or July 1, 2028, whichever is earlier.
Authors: Diana Maier, Founding Partner and Marta Manus, Senior Attorney
Employers should carefully review these laws to see where their policies and procedures need updating. For example, most employers will find that they need to update their COVID policies, their handbook language pertaining to leave, and their template severance agreements, to name just a few. It would also be wise to review your wage and hour policies, and to do so at least once a year, as the new law on wage theft is just one example of how the legislative body loves to pass new wage and hour laws or tweak and fine-tune pre-existing wage and hour laws on a semi-annual basis. Maier Law Group can help with these and other projects when you need us. Email Info@maierlawgroup.com for a quick response.
This article has been prepared for general informational purposes only and does not constitute advertising, solicitation, or legal advice. If you have questions about a particular matter, please contact the Maier Law Group directly.
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