California Workplace Compliance
News & Resources

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

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:

Approved Regulations

Civil Rights Council Final Text of Modifications to Employment Regulations Regarding Criminal History

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:

Woodworth v. Loma Linda Univ. Med. Ctr.

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:

Adolph v. Uber Technologies, Inc.

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:

Industrial Welfare Commission Wage Orders

Industrial Welfare Commission (IWC)

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:

CCPA Frequently Asked Questions (FAQs)

Attorney General Bonta Seeks Information from California Employers on Compliance with California Consumer Privacy Act

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:

CCPA Laws & Regulations

CCPA Frequently Asked Questions (FAQs)

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:

California Section 1102.5(b)

California Whistleblower Protections Notice

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:

SB 731

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

California Notice of Approval

California Consumer Privacy Act Regulations

California CCPA Frequently Asked Questions (FAQs)

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:

2023 Minimum Wage Ordinance Wage Rate Increase Notice

Los Angeles City Office of Wage Standards

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

Understanding the Health Care Security Ordinance

Understanding the Fair Chance Ordinance

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:

1. The employee is covered by a valid collective bargaining agreement under the Railway Labor Act and
2. 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:

SB 41

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

California Pay Data Reporting Portal

Who: California employers

When: Effective immediately

On February 15, 2023, the 9^th 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:

Federal Arbitration Act

U.S. Chamber of Commerce v. Bonta

Assembly Bill No. 51

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

San Francisco Office of Labor Standards Enforcement Website

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:

Los Angeles Fair Workweek Ordinance

County of San Mateo County

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:

Los Angeles Fair Workweek Ordinance

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:

Military Leave Protection Act

San Francisco Office of Labor Standards Enforcement Website

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:

Senate Bill No. 1162

California Equal Pay Act: Frequently Asked Questions

California Pay Data Reporting

California Pay Data Reporting: Frequently Asked Questions

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 15^th 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:

AB 257

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:

AB 1041

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:

AB 1949

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:

Overtime Exemption for Computer Software Employees

Overtime Exemption for Licensed Physicians and Surgeons

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:

SB 1044

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:

Modified Text of Proposed Regulations

California Consumer Privacy Act Regulations

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:

AB 1601

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:

SB 1162

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 15^th 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:

AB 257

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:

AB 1041

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:

AB 1949

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:

Overtime Exemption for Computer Software Employees

Overtime Exemption for Licensed Physicians and Surgeons

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:

SB 1044

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:

Modified Text of Proposed Regulations

California Consumer Privacy Act Regulations

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:

AB 1601

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:

SB 1162

Who: California employers

When: Effective immediately

On July 1, 2022, California renamed its Department of Fair Employment and Housing (DFEH) to the Civil Rights Department of California (CRD). The CRD is not a new government agency. The reason for the name change is to better reflect all of the civil rights laws the department enforces and all of the services available. California will release an education program to inform Californians about the CRD.

The website address has changed to https://calcivilrights.ca.gov. The old DFEH website address is being rerouted to the new website address.

How:

• Monitor for the updated posters, brochures, guides, fact sheets, and any additional materials that include the new name change and logo for the CRD, and post them when they have been published.

Additional Resources:

State of California Budget Change Proposal – Cover Sheet

Civil Rights Department State of California About CRD

Civil Rights Department State of California California’s Civil Rights Agency

Civil Rights Department State of California Posters, Guides and Fact Sheets

Civil Rights Department State of California Sexual Harassment Prevention Training

Who: California employers

When: Effective immediately

On August 26, 2022, Governor Gavin Newsom signed SB 1126 into law, which expands the definition of eligible employer as applies to the CalSavers retirement savings program created in 2016 and fully launched in 2019. That program requires employers that do not sponsor an employee retirement plan to participate in a state-run retirement program. The state-run program gives employees the opportunity to defer wages to a retirement savings program through payroll deductions.

SB 1126 expands the definition of eligible employer to a person or entity that:

• Has at least one eligible employee; and
• Satisfies the requirements to establish or participate in a payroll deposit retirement savings arrangement.

The previous eligibility requirements, which still apply, are:

• A person or entity engaged in a business, industry, profession, trade, or another enterprise in the state that
• Has five or more employees.

The existing legislation excludes specified federal, state, and local governmental entities from the definition of “eligible employer.”

Eligible employers with five or more employees that do not offer a retirement savings program must have a payroll deposit saving arrangement in place within 36 months after the board opens the program for enrollment. Eligible employers with at least one but fewer than five employees have until December 31, 2025, to register for the program or provide their own retirement plan.

How:

• Make arrangements to have a payroll deposit savings program in place by the applicable deadline.

Additional Resources:

SB 1126

CalSavers Retirement Savings Program

Who: Los Angeles employers

When: Effective immediately

The Los Angeles Minimum Wage Increase for Healthcare Workers was supposed to go into effect on August 13, 2022, but it was suspended pending the outcome of the referendum petition challenge filed with the city clerk’s office on August 10, 2022.  The office must review the petition to determine if there are enough valid voter signatures (40,717) to compel a public vote on the matter in 2024. If there aren’t enough valid signatures, the city will issue a certificate of insufficiency and the ordinance will go into effect.

How:

• Monitor for the outcome of the referendum petition challenge signature count.

Additional Resources:

Referendum Against Ordinance No. 187566 (Healthcare Worker Minimum Wage) Petition Filed with the City Clerk

City of Los Angeles Office of Wage Standards

Who: Los Angeles, California hotel employers

When: Effective immediately

The City of Los Angeles Office of Wage Standards has posted model notices for the posters required under the hotel worker protection ordinance that Los Angeles Mayor Eric Garcetti signed on July 7, 2022. The law is intended to increase safety and protections for hotel workers, limit their daily workload, and raise their wages. The new ordinance took effect on August 12, 2022.

Hotel employers must post a notice on the back of the entrance door to each guest room and hotel restroom facility that includes the heading “The Law Protects Hotel Workers From Threatening Behavior” in a font size of no less than 18 points.  Hotel employers must also notify each employee of their rights under the ordinance at the time of hire or within 30 days of the effective date of the ordinance. The notice must be in English, Spanish, and any language spoken by more than 10% of the workforce.

The City of Los Angeles also published rules and regulations for the hotel worker protection ordinance that cover:

• Who is a hotel employer;
• Who is a hotel worker;
• Which aspects of the ordinance apply to which hotel employers;
• Security protection for hotel workers;
• Rights related to the personal safety device;
• Measures for fair compensation;
• Exemptions and waiver; and
• Enforcement and retaliation.

Employers must provide annual training for employees on the use and maintenance of personal security devices.

How:

• Update your related policies as needed to comply with the law.
• Prepare and install signage in the guest rooms and restrooms.
• Provide the required notice of employee rights in required languages to employees and new hires.
• Prepare an annual training program for employees on the use and maintenance of personal security devices.

Additional Resources:

Hotel Worker Protector Ordinance

Hotel Worker Protection Ordinance Notice (English)

Hotel Worker Protection Ordinance Notice (Spanish)

Hotel Worker Protection Ordinance Notice of Workers’ Rights (English)

Hotel Worker Protection Ordinance Notice of Workers’ Rights (Spanish)

Hotel Worker Protection Ordinance Rules and Regulations

City of Los Angeles Office of Wage Standards

Who: Los Angeles, California employers

When: Effective August 13, 2022

What: On July 8, 2022, Los Angeles Mayor Eric Garcetti signed into law a minimum wage increase for certain healthcare workers. For certain privately owned healthcare facilities, the minimum wage will increase to $25.00 an hour, effective August 13, 2022. Covered facilities include:

• General acute care hospitals and their clinics and skilled nursing facilities;
• Acute psychiatric hospitals and their clinics and skilled nursing facilities;
• Residential care facilities for the elderly that are located or licensed at the same address or located on the campus of an acute psychiatric hospital; and
• Chronic dialysis clinics.

The new minimum wage applies to employees who provide patient care or healthcare services and those who provide supporting services. It does not apply to managers, supervisors, or employees whose primary work assignments are principally outside a covered facility.

The minimum wage will increase again on January 1, 2024, and annually thereafter based on the annual cost of living index.

The ordinance prohibits employers from funding the increase through worker layoffs; decreases in hours, vacation, or healthcare; or increasing fees for parking or work-related materials.

A court may grant a one-year waiver to employers that can prove by providing substantial evidence that complying with the ordinance would raise substantial doubt about the employer’s ability to continue as a going concern.

How:

• Review pay practices and policies to comply with the law.

Additional Resources:

Healthcare Minimum Wage Ordinance

Who: Los Angeles, California hotel employers

When: Effective immediately

What: The Glendale City Council passed the Hotel Workers Protection Ordinance (HWPO), which went into effect July 27, 2022. The law provides for personal security devices, limits the daily workload, and increases minimum wage.

The law requires employers to provide personal security devices (aka panic buttons) to hotel workers assigned to work in a guest room or restroom facility where other workers are not also assigned. This provision applies to all hotel employers, regardless of size. Workers can activate the device if they believe violent or threatening conduct is occurring in their presence. The device must transmit a signal to a security guard who can receive the alerts and provide immediate on-scene assistance. A hotel supervisor or manager may fulfill the security role, subject to certain training requirements. Hotels must post signage on the back of guest room doors that states the hotel staff have personal alarms.

The new law contains an anti-retaliation provision that protects workers who exercise their rights under the law. Hotel employees that report violent or threatening conduct by a guest must receive reasonable accommodation, including paid time off to report to law enforcement. The hotel may not threaten or take adverse action against an employee who chooses not to report such conduct to law enforcement.

Employers must provide initial training on HWPO to employees by August 25, 2022, and annually thereafter. New hires must be trained within 30 days of hire.

The HWPO imposes workload limits, depending on the number of guest rooms and type of space being cleaned. HWPO limits the square footage a worker must clean in a day before it triggers double-time wage premiums for ALL hours worked that day, not just overtime hours. The workload limits are to be appropriately prorated if an employee works less or more than an eight-hour shift. Employers must maintain records of the square footage of cleaning assignments for three years.

Workload limits also include a limit on the number of hours worked in a day. A hotel may not require a worker to work more than 10 hours in a day, unless the worker agrees in writing. The employer may not take adverse action against an employee who refuses to work more than 10 hours in a day.

Beginning September 24, 2022, the ordinance increases minimum wage for hotel workers to $17.64 per hour, or the hourly wage required by Los Angeles Municipal Code Section 186.02, whichever is higher. The minimum wage will be the same as required by the Los Angeles code starting July 1, 2023.

Workers or the city attorney can bring civil actions against employers for violations of this law. Failure to maintain proper records could result in statutory damages of up to $1,000 per day. Other violations could result in liability for actual damages suffered by the worker, plus statutory damages of $100 per aggrieved person, per day, with no cap. Willful violations are subject to treble damages. The prevailing plaintiff may be awarded fees and costs for attorneys and other experts.

Hotel employers may obtain a one-year waiver if they can demonstrate that compliance would require them to reduce their workforce by more than 20% or curtail all workers’ hours by more than 30% in order to avoid bankruptcy or shutdown.  Before applying, the employer must supply a copy of its waiver application to all employees, and the employer must provide written notice to the hotel workers of the outcome of the request within three days.

• Update all related policies to comply with the law, including the paid overtime policy.
• Ensure you have in place the security staff required to respond to emergency calls from personal security devices.
• Prepare and install notices on the back of guest room doors.
• Provide the required training for employees by August 25, 2022.

Additional Resources:

Ordinance 5991: Hotel Workers Protection Ordinance

Hospitality Workers Workplace Protections (Draft)

Who: Los Angeles, California hotel employers

When: Effective August 12, 2022

What: Los Angeles Mayor Eric Garcetti signed the Hotel Worker Protection Ordinance (HWPO) on July 7, 2022, which increases protections for hotel workers. The law goes into effect August 12, 2022. Among other things, it provides for personal security devices, limits the daily workload, and increases minimum wage. It applies to all hotel employers and all workers in a hotel, including restaurant and spa workers. It covers employees contracted through another hotel, a temporary staffing agency, or any type of employee leasing agency.

The law requires employers to provide personal security devices (aka panic buttons) to hotel workers assigned to work in a guest room or restroom facility where other workers are not also assigned. The intent is to protect hotel workers against assaults and violence while working alone. The device must signal the employee’s location and provide direct contact with hotel security or management. Employers must provide annual training on how to use the device and keep records of such training. Larger hotels with 60 or more rooms must translate these trainings in languages spoken by 10% or more of the workforce.

Hotels with 60 or more rooms must have a dedicated security guard on duty at all times. The guard must be able to receive alerts from the personal security devices and provide on-scene assistance. For hotels that have less than 60 rooms, a hotel supervisor or manager may fulfill the security role. Hotel employees that report violent or threatening conduct by a guest must receive reasonable accommodation, including paid time off to report to law enforcement. Hotels must post signage about the panic buttons on the back of guest room doors and in restrooms.

The HWPO imposes workload limits on hotels with 45 or more guest rooms. First, the HWPO limits the square footage a worker must clean in a day before it triggers double-time wage premiums. The limit varies based on hotel size and how much special attention the rooms require. Employers must maintain records of the square footage of rooms cleaned and other related data for three years. Additionally, the HWPO states that hotels may not require workers to work more than 10 hours a day unless the worker agrees in writing to do so.

The new law contains an anti-retaliation provision that protects workers who exercise their rights under the law.

The ordinance increases minimum wage for hotel workers to $18.17 per hour in hotels with 60 or more rooms. Formerly, this minimum wage applied only to workers in hotels with 150 or more rooms.

Hotel employers must provide written notice of employees’ rights to them within 30 days of the effective date of the law, or upon hire. The notice must be in English, Spanish, and any language spoken by more than 10% of the workforce.

How:

• Obtain personal security devices before August 12.
• Provide the required notice of employee rights in required languages.
• Ensure you have retained/trained staff to fulfill the security obligations and respond to emergency calls prompted by the personal security devices.
• Prepare and install signage in guest rooms and restrooms.
• Ensure your paid time off policies comply with the ordinance.
• Prepare overtime consent forms.
• Prepare your system for calculating square footage limitations and collecting and storing all other data required for recordkeeping.
• Develop a recordkeeping system for this data.
• Prepare an annual training program for employees on the use and maintenance of personal security devices.
• Update all related policies to comply with the law.

Additional Resources:

Hotel Worker Protection Ordinance

Who: California employers

When: Effective immediately

What: On June 15, 2022, the U.S. Supreme Court issued its long-awaited ruling on Viking River Cruises v. Moriana, a case that involved an employee suing in state court under California’s Private Attorney General Act (PAGA) on behalf of herself and other employees for alleged wage and hour law violations. The Court held that California employers can enforce arbitration agreements to the extent that they require employees to arbitrate individual claims under PAGA and that once the employee’s individual claims are compelled into arbitration, that employee does not have standing to bring a representative claim under PAGA on behalf of other employees.

Generally, PAGA allows employees to bring suit to recover penalties as a proxy for the state of California (75% of penalties recovered go to the state and 25% go to the employees). PAGA actions can be brought on behalf of the employee and on behalf of other aggrieved current or former employees.

In Viking River Cruises, Moriana sued her former employer on behalf of herself and other employees under PAGA. Prior to that, Moriana had signed an arbitration agreement that contained a “class action waiver.” Her former employer moved to compel arbitration of her PAGA claims. The trial court denied this motion and the California Court of Appeal affirmed this decision based on a prior case, Iskanian v. CLS Transportation of Los Angeles, where the California Supreme Court held that arbitration agreements containing waivers of the right to bring a PAGA representative action were unenforceable.

However, the U.S. Supreme Court overruled the Court of Appeal, holding that the rule preventing the division of PAGA claims into individual and non-individual claims is preempted by the Federal Arbitration Act (FAA). Accordingly, the Court held that Moriana should have been forced to arbitration her individual PAGA claims, and that once Moriana’s individual claims are sent to arbitration, she is unable to bring non-individual PAGA claims on behalf of other employees.

How:

• Work with legal counsel to bring your arbitration agreements in line with the ruling.
• Monitor whether the California legislature amends PAGA in light of the Viking River Cruises ruling.
• Monitor current litigation related to AB 51 that could result in the disallowance of mandatory arbitration agreements as a condition of employment.

Additional Resources:

Viking River Cruises Inc. v. Moriana Ruling

Who: California employers

When: Effective immediately

What: On May 13, 2022, a Los Angeles Superior Court ruled California SB 826 unconstitutional. The law required publicly held corporations to appoint a minimum number of women to their boards of directors based on board size. The court stated that SB 826 violated the California Equal Protection Clause because it affected men and women in an unequal manner. The state failed to prove that the law was narrowly tailored to remedy gender discrimination and that the law was necessary to fulfill “a compelling state interest.”

In April, a different Los Angeles Superior Court overturned and overturned and ruled unconstitutional AB 979, which required publicly held corporations to add representatives of underrepresented communities to their boards of directors. The two rulings together negate the diversity requirements for California employers’ board of directors.

How:

• Monitor California legislation for an appeal of the ruling.

Additional Resources:

SB 826

Who: California employers

When: Effective immediately

What: Per Labor Code Section 226.7, an employer who unlawfully makes an unsalaried employee work during part or all of a meal or rest period must pay the employee an additional hour of pay at the regular rate of compensation. On May 23, 2022, in the matter of Naranjo v. Spectrum Security Services, Inc., the California Supreme Court ruled that such payments are considered wages, not penalties.

Employers must report the payments as wages on statutorily required wage statements. Per California Labor Code Section 226.7, employers that knowingly and intentionally fail to report the payments on wage statements may incur penalties. Per Labor Code Section 203, employers that willfully fail to make timely payments when an employee terminates may incur penalties. The Court determined that the prejudgment interest rate for such penalties is 7%.

How:

• Update your wage and hour policies and procedures to comply with the law.
• Train managers and payroll personnel on the new requirements.

Additional Resources:

Naranjo v. Spectrum Security Services, Inc.

California Department of Industrial Relations

California Labor Code Section 226.7

California Labor Code Section 203

Who: City of West Hollywood employers

When: Effective July 1, 2022

What: Effective July 1, 2022, in accordance with its Minimum Wage Ordinance, City of West Hollywood employers are subject to a higher minimum wage and new leave laws. Employers with 50 or more employees must pay a minimum wage of $16.50 per hour. Employers with fewer than 50 employees must pay a minimum wage of $16.00 per hour. Hotel employers must pay a minimum wage of $18.35 per hour.

Employers must provide paid leave for sick leave, vacation, or personal necessity for employees who have worked at least six months, or in accordance with the employer’s policy, whichever is sooner. Full-time employees qualify for up to 96 hours of leave. Part-time employees accrue compensated time off pro-rata with hours worked. If an employee uses all paid leave, the employer must provide an additional 80 hours of unpaid leave for sick leave for an employee’s illness or the illness of a member of the employee’s immediate family.

Employers may apply for one waiver application if compliance would force them to shut down, file for bankruptcy, or cause a 20% or greater reduction in their workforce.

The City published Administrative Regulations to provide guidance on several topics, including how to calculate the number of employees, methods for distribution of leave, guidance for application for waivers for certain employers, and required notices.

Employees may file a complaint with the City if they do not receive their minimum hourly wage or compensated/uncompensated leave.

How:

• Post the minimum wage posters.
• Retain employee payroll records for at least three years.

Additional Resources:

City of West Hollywood Minimum Wage Ordinance Administrative Regulations

West Hollywood Minimum Wage Poster English

West Hollywood Minimum Wage Poster Spanish

West Hollywood Hotel Minimum Wage Poster English

West Hollywood Hotel Minimum Wage Poster Spanish

City of West Hollywood

Who: San Francisco, California employers with 20 or more employees

When: Effective July 12, 2022

What: On March 14, 2022, San Francisco Mayor London Breed signed new legislation that amends the Family Friendly Workplace Ordinance (FFWO) for employers with 20 or more employees, regardless of their location. The new law goes into effect July 12, 2022 and affects employees who are employed within the geographic boundaries of the city, regularly work at least 8 hours a week, and have been employed for at least six months. It also applies to workers who telecommute to San Francisco.

The amendment has updated the definition of caregiver to an employee who is a primary contributor to the ongoing care of:

• A child or children for whom the employee has assumed parental responsibility;
• A person or persons with a serious health condition in a Family Relationship with the caregiver; or
• A parent person who is age 65 or over of the caregiver.

The amendment allows such employees to request a flexible or predictable working arrangement that allows them to attend to caregiving responsibilities.

Employees must make such a request in writing. Employers have 14 days to meet with the employee, and 21 days to respond to the request. Employers must engage in a good-faith, interactive process that results in them providing a predictable or flexible working arrangement, unless it would create an undue hardship.

If granted, the employer must provide written confirmation. If denied, the employer must explain in writing the bona fide reason for denial and notify the employee of their right to request reconsideration. The law includes a nonretaliation clause that applies to employees who exercise their rights under the law or for cooperating in a city investigation.

Penalties for violation include a fine of $50 per day of violation, per affected employee, to be paid to the employee, or a penalty up to the cost of care incurred by the aggrieved employee. The city may also impose a fine of $50 per day of violation, per affected employee, or an amount up to the city of San Francisco’s costs for the investigation and remedying of the violation, if greater, to be paid to the city.

How:

• Update your policies to comply with the law.
• Monitor for an updated Family Friendly Workplace Ordinance Poster, and post it in the workplace.

Additional Resources:

Family Friendly Workplace Ordinance

Who: California employers

When: Effective immediately

What: On April 1, 2022, in the case of Robin Crest, et al. v. Alex Padilla, a Los Angeles County Superior Court Judge ruled that Assembly Bill 979 (AB 979) unconstitutionally established Corporations Code § 301.4. That law required corporate boards of publicly traded companies with a main executive office in California to have at least one member from an “underrepresented community.” Underrepresented was defined as Black, African American, Hispanic, Latino, Asian, Pacific Islander, Native American, Native Hawaiian, Alaska Native, or one who self-identifies as gay, lesbian, bisexual, or transgender.

The plaintiffs successfully argued that the law violated the state’s constitutional equal protection clause by treating similarly situated individuals (i.e., potential board members) differently based on their membership or lack thereof in certain identity groups.

In light of the fact that requiring a board member be from an underrepresented community has at least temporarily been ruled unconstitutional, employers need to re-evaluate and determine if they want to update their diversity policies. Experts note that it is important for corporations to continue their efforts to create opportunities for diverse talent. The requirement for a certain number of women on the board is still in effect, and corporations should avoid appearing to shareholders as if they are moving backward in terms of diversity efforts.

How:

• Consider reviewing your diversity policies in light of the new ruling.
• Monitor the progress of this litigation.

Additional Resources:

AB 979

SB 826

Board Diversity Matrix Instructions (February 8, 2022)

Who: California private employers with 100 or more employees

When: Report due by April 1, 2022

What: California employers with 100 or more employees must file their California Pay Report with the Department of Fair Employment and Housing (DFEH) by April 1, 2022, per Government Code Section 12999. Employers must report pay and hours-worked data by establishment, job category, sex, race, and ethnicity. The data parallels what’s required for federal EEO-1 reporting but differs in some ways.

The DFEH collects the data as part of its efforts to protect “the right of all persons to obtain and hold employment without discrimination based on specified characteristics or status.” The Department also encourages employers to self-evaluate their pay disparities and practices and voluntarily comply with anti-discrimination laws.

In February 2022, there will be a revised portal, template, and user guide released on the DFEH California Pay Data Reporting website.

How:

• Monitor the DFEH California Pay Data Reporting website for the revised template and user guide.
• Report pay and hours-worked data via the online portal by April 1, 2022.

Additional Resources:

SB-973

California Pay Data Reporting Portal

California Pay Data Reporting Resources

Who: California employers

When: Effective immediately

What: The California Employment Development Department published new Voluntary Plan Employee Contribution and Benefit Rates for 2022, as follows:

• Employee Contribution Rate: 1.10%
• Taxable Wage Ceiling (per employee per year): $145,600.00
• Maximum Contribution (per employee per year): $1,601.60
• Maximum Weekly Benefit Amount: $1,540.00
• Maximum Benefit Amount: $80,080.00
• Assessment Rate: 0.168% (applies to employers who maintain their own state-approved voluntary plan)

These rates apply to employees who are covered by the state’s program for disability insurance and paid family leave (PFL). The program requires employers to withhold employee contributions and send them to the California EDD.

Employers covered by San Francisco’s Paid Parental Leave Ordinance (PPLO) must supplement California’s PFL benefits in cases where an employee is bonding with a new child. In such a case, the employer must supplement the California maximum weekly benefit amount to achieve payment to the employee of 100% of the employee’s gross weekly wage, with a cap of $2,567 per week.

The California EDD also published an updated version of its e-book titled “Overview of California’s Paid Family Leave Program.”

How:

• Update your HR manual and employee handbook to comply with the new contribution and benefit rates.
• Work with your payroll personnel or outside payroll company to ensure compliance with the new rates.

Additional Resources:

California Employment Development Department Contribution Rates and Benefit Amounts

Overview of California’s Paid Leave Program (Publication No. DE 2530 Rev. 5)

Who: California employers

When: January 1, 2022

What:

On September 27, 2021, California Governor Gavin Newsom signed Assembly Bill 1003, which goes into effect on January 1, 2022. It criminalizes “intentional” wage theft over a certain threshold and classifies it as grand theft:

• For one employee, the threshold is $950 in any consecutive 12-month period.
• For two or more employees, the threshold is $2,350 in any consecutive 12-month period.

Wage theft means failing to pay full wages, gratuities, benefits, or other forms of compensation. This law applies to employees as well as independent contractors.

Violations of this new law can be classified as either a misdemeanor or felony, punishable by up to three years in prison. Remember, this new law is in addition to any civil action brought by the employee.

How:

Review your compensation policies and practices to ensure you are paying employees and contractors in accordance with current wage laws.

Additional Resources:

AB 1003

Who: California employers

When: Effective January 1, 2022

What:

California Governor Gavin Newsom signed Senate Bill 807 into law on September 23, 2021, which changes how the Department of Fair Housing (DFEH) enforces civil rights laws as follows:

• Modifies when and how DFEH may appeal adverse superior court decisions relating to DFEH’s ability to compel cooperation in investigations;
• Tolls the time DFEH has to file a civil action while attempting dispute resolution;
• Tolls the time an individual has to file a civil action for violation of certain statutes while DFEH is investigating or taking action on a complaint; and
• Gives DFEH two years to investigate a complaint and issue a right-to-sue notice to a class or group for employment discrimination complaints.

The Bill also extends the length of time an employer must retain personnel records for applicants and employees under Government Code Section 12946. Effective January 1, 2022, the retention requirement increases from two to four years from the date records were created, or employment action was taken. In cases of litigation, employers must retain records until the applicable statute of limitations runs or the litigation concludes, whichever is longer.

How:

Update your record-retention policies to reflect the new record-retention periods.

Additional Resources:

SB 807

Who: California employers

When: Effective January 1, 2022

What:

California Governor Gavin Newsom signed Senate Bill 657 into law on July 16, 2021, which allows employers to electronically distribute copies of required employee notifications or posters to an employee. Effective January 1, 2022, the employer may attach the document to an email—though the employer is still required to post it in the physical workplace. The purpose of this law is to give remote workers access to the required notices.

How:

Consult with legal counsel to determine whether the electronic distribution of your employee notices will comply with all federal and state posting requirements.

Additional Resources:

SB 657

Who: California employers with warehouse distribution centers

When: Effective January 1, 2022

What:

California Governor Gavin Newsom signed Assembly Bill 701 into law on September 22, 2021; it goes into effect on January 1, 2022. The new law regulates productivity quotas for warehouse distribution centers. It applies to a single warehouse distribution center with 100 or more employees or one or more California warehouse distribution centers with an aggregate of 1,000 or more employees. The purpose of the law is to prevent employers from penalizing workers for taking meal and rest breaks, using the restroom, or complying with health and safety standards.

Upon hire or within 30 days of the law going into effect, employers must provide a written description of the quotas an employee is subject to, along with any potential adverse actions the employee could face for not meeting a quota. A quota is defined as an assigned or required work standard that an employee must “perform at a specified productivity speed, or perform a quantified number of tasks, or to handle or produce a quantified amount of material, within a defined time period” when the employee could suffer adverse consequences if they don’t meet the standard.

The law prohibits employers from requiring employees to miss meal or rest breaks or not follow safety procedures to meet their quotas. It also keeps employers from taking adverse action if an employee doesn’t meet a previously undisclosed quota or if the employee doesn’t meet a quota that requires them to miss a meal or rest break or violate occupational health and safety laws.

A current or former employee may, orally or in writing, request a written description of each quota to which the employee was subject, along with the most recent 90 days’ worth of the employee’s personal work speed data as defined by the law. Employers must provide the information with 21 calendar days of the date of request and may not take adverse action against an employee for requesting such information. The law includes a rebuttable presumption of retaliation when the employer takes adverse action against an employee within 90 days of such a request or within 90 days of the employee making a complaint alleging the quota violates this new law.

A current or former employee may bring an action for injunctive relief to comply with quota requirements and, if successful, recover costs and reasonable attorney’s fees.

It is the responsibility of the Labor Commissioner to enforce the new law. In addition, if Occupational Safety and Health or the Division of Workers’ Compensation find that a worksite or employer has an annual employee injury rate that is 1.5 times or greater than the warehousing industry’s average, they must inform the Labor Commissioner.

How:

• Analyze quotas and standards to determine if they could impede an employee’s ability to take compliant meal and rest breaks, use the restroom, or comply with health and safety laws.
• Prepare the quota disclosure statements in advance of the January 1, 2022 effective date.
• Create a process for giving employees access to their quota and production data when they request it.

Additional Resources:

AB 701

Who: California employers

When: Effective January 1, 2022

What:

On October 7, 2021, California Governor Gavin Newsom signed Senate Bill 331, which prohibits California employers from:

• Writing settlement agreements that restrict employees from disclosing information about workplace discrimination and harassment; and
• Writing severance agreements that restrict employees from disclosing information about unlawful working conditions.

The law expands Section 1001 of the California Code of Civil Procedure to state that an employer cannot write a settlement agreement that prevents an employee from disclosing facts about any form of unlawful discrimination and harassment—not just those related to sex. The law is effective on January 1, 2022, and applies to discrimination and harassment claims settled on January 1, 2022 or later.

The law also expands Government Code Section 12964.5. The law had previously prohibited employers from writing non-disparagement agreements that limited employees’ right to disclose information about unlawful acts in the workplace. The law now applies to severance agreements as well.

When writing non-disparagement clauses or agreements, employers must include language that protects employee rights. Any agreement that limits an employee’s right to disclose information about the workplace must include the following (or substantially similar) language:

“Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

Employers can restrict an employee’s right to disclose proprietary information, trade secrets, or other confidential information unrelated to unlawful acts in the workplace. An employer may also restrict the employee from disclosing the amount of a severance payment. Employees may shield their identity and any facts that could lead to the discovery of their identity.

The new law also requires employers to notify employees that they have a right to consult with an attorney about a separation agreement. They must give the employee a minimum of five business days to do so.

How:

• Work with legal counsel to review your severance agreements, settlement agreements, non-disparagement provisions, and nondisclosure provisions to ensure compliance with the law.
• Update your templates as necessary.

Additional Resources:

SB 331

Who: California employers

When: Effective January 1, 2022

What:

On September 27, 2021, California Governor Gavin Newsom signed Assembly Bill 1033, which expanded the California Family Rights Act to include parents-in-law in the definition of a family member. The change goes into effect on January 1, 2022. It allows employees to take family and medical leave to care for a parent-in-law who has a serious medical condition as defined by the Act.

How:

• Update your policies and employee handbook to add parents-in-law as covered family members.
• Monitor for the updated California Family Rights Act poster and post when available.

Additional Resources:

AB 1033

California Department of Fair Employment and Housing

Who: California employers with subminimum wage licenses

When: January 1, 2022

What:

On September 27, 2021, California Governor Gavin Newsom signed Senate Bill 639, which goes into effect on January 1, 2022. The law phases out the practice of allowing persons with disabilities to work for less than the minimum wage, known as a “subminimum wage.”

No new licenses to pay workers subminimum wage will be issued in 2022 or thereafter, and no existing license will be renewed as of January 1, 2025. In the meantime, current license holders must meet benchmarks as outlined in the phaseout plan if they wish to renew their licenses.

The intent of the law is to end the antiquated practice of paying persons with disabilities less than minimum wage, integrate them into the work environment, and promote financial stability for these workers.

How:

Prepare to phase out your subminimum wage program and pay workers with disabilities minimum wage or higher.

Additional Resources:

SB 639

Who: California direct contractors

When: Effective January 1, 2022

What:

California Governor Gavin Newsom signed Senate Bill 727 on September 27, 2021, which amends Labor Code Section 218.7 and adds Section 218.8. Currently, the law makes direct contractors (as defined in the Labor Code) liable for subcontractors’ employees’ unpaid wages and benefits when their labor is related to the contract. However, the direct contractor is not liable for penalties or liquidated damages.

However, for all contracts entered into on or after January 1, 2022, the SB 727 amendments impose liability on direct contractors for penalties and liquidated damages. It also makes the direct contractor liable when a subcontractor does not make payments to the California unemployment fund.

How:

• Update your documentation to account for the additional potential liability.
• Implement policies and procedures to ensure subcontractors are timely paying wages.

Additional Resources:

SB 727

Who: California employers in the construction industry

When: Effective January 1, 2022

What:

On September 30, 2021, California Governor Gavin Newsom signed Assembly Bill 1561, which amends worker classification exceptions in Labor Code Section 2781. Current law exempts construction trucking subcontractors from the independent contractor test. The provision applies to work performed before January 1, 2022. AB 1561 extends the exemption to work performed before January 1, 2025.

The extension gives the industry three more years to determine proper classification of independent contractors and comply with AB 5.

How:

Consult with legal counsel to determine proper classification of subcontractors.

Additional Resources:

AB 1561

Who: California employers

When: Effective January 1, 2022

What:

If certain criteria are met, some employees are exempt from the overtime requirements stated in California’s Labor Code Section 510. One of those criteria is that the employee’s rate of pay is not less than a stated amount. That amount changes each year to adjust to the California Consumer Price Index increases. Accordingly, the California Department of Industrial Relations has adjusted the minimum hourly rate of pay for computer software employees and licensed physicians and surgeons per Labor Code Sections 515.5(a)(4) and 515.6(a). The new exemption amounts are effective January 1, 2022.

For computer software employees, the minimum hourly rate has increased from $47.48 to $50.00, the minimum monthly salary has increased from $8,242.32 to $8,679.16, and the minimum annual salary has increased from $98,907.70 to $104,149.81.

For licensed physicians and surgeons, the minimum hourly rate has increased from $86.49 to $91.07. The changes reflect the 5.3% increase in the California Consumer Price Index for Urban Wage Earners and Clerical Workers.

How:

• Adjust pay rates as needed to maintain employees’ exempt status.
• Update your payroll system and documentation to account for the new minimum pay rates.

Additional Resources:

Overtime Exemption for Licensed Physicians and Surgeons

Overtime Exemption for Computer Software Employees

Who: San Francisco employers and employees

When: Effective immediately

What: On February 22, 2022, San Francisco’s Paid Sick Leave ordinance was updated by the San Francisco Office of Labor Standards Enforcement. Under the amended guidance, a doctor’s note shall be deemed unreasonable for employee sick leave periods of five days or less.

For sick leave periods of five days or more, a doctor’s note shall be deemed reasonable if an employee takes a sick leave is taken for one of the following reasons:

• A public health official or healthcare provider requires or recommends a period of isolation or quarantine for the employee.
• The employee has scheduled a COVID-19 vaccination appointment/is experiencing debilitating vaccination side effects.
• The employee must provide care for a family member who is sick with COVID-19, has scheduled a COVID-19 vaccination, is experiencing debilitating vaccination side effects, and/or has to stay home due to a temporary school closure, childcare provider closure, senior care provider closure, or work closure.

The sick leave program leave is only for employees unable to work a portion of their scheduled hours. Employees are also forbidden to use the sick leave program as a way to supplement a reduction of work hours. Employees who have been laid off by their employers are not eligible for paid sick leave.

San Francisco’s Sick Leave ordinance is set to remain in effect for the duration of the public health emergency

How:

• Review your current policies and procedures and update them to comply with the guidance.
• Educate and inform your employees about local mandates and safety protocols.

Additional Resources:

San Francisco COVID-19 Resources

San Francisco Department of Health

San Francisco Paid Sick Leave and the Coronavirus

San Francisco’s Paid Sick Leave Ordinance and COVID-19 (February 22, 2022)

Who: California employers with multiple worksites

When: Effective January 1, 2022

What: On September 27, 2021, California Governor Gavin Newsom signed SB 606, directly impacting businesses with multiple worksites. The new law is effective January 1, 2022. It gives Cal/OSHA the authority to issue a citation that encompasses an entire business when they find that:

• One worksite has a written policy or procedure that isn’t compliant with a Section 25910 health safety code, rule, standard, order of regulation; or
• A business has a pattern of violations involving multiple worksites.

In other words, if there is a violation at one worksite, Cal/OSHA will presume the same violation is occurring at all company locations or worksites. Enterprise-wide violations could cost companies up to $124,709 per violation.

The law also creates a category for “egregious violations,” a definition that applies when Cal/OSHA determines that one or more of the following seven circumstances has occurred:

1. The business consciously, intentionally, knowingly, or through voluntary action/inaction made no “reasonable effort” to fix a known violation.
2. The violation(s) resulted in a fatality, catastrophe (defined as inpatient hospitalization of three or more employees resulting from a workplace injury, exposure, or illness), or a large number of injuries or illnesses.
3. The employer has a persistent high rate of injuries or illnesses.
4. The employer has an extensive prior history of violations.
5. The business has intentionally disregarded its health and safety responsibilities.
6. The employer’s conduct demonstrates bad faith in performing their duties.
7. The employer has committed a large number of violations that significantly undermine the effectiveness of its health and safety program.

Cal/OSHA can issue repeat citations for egregious violations if the underlying conduct occurred in the last five years. Each employee subject to an egregious violation is considered a separate violation regarding fines and penalties, which can be up to $134,334 per violation.

The law also significantly expands Cal/OSHA’s authority to seek an injunction to restrain certain uses or operations of a business. Previously, Cal/OSHA could only take such an action in the case of “a serious menace” to the lives or safety of people at the workplace. Now it can seek an injunction any time it has grounds to issue a citation.

In addition, the law gives Cal/OSHA the authority to issue a subpoena if an employer doesn’t promptly provide requested information. As determined by Cal/OSHA, it can enforce the subpoena if the employer fails to provide the requested information within a “reasonable” amount of time, as determined by Cal/OSHA.

How:

• Review your workplace policies and procedures, including your Injury and Illness Prevention Program, across all locations to ensure they are up to date and compliant with Cal/OSHA regulations.
• Review and ensure all your workplace health and safety protocols related to COVID are up to date and compliant.
• Train all employees on the new law’s provisions and any changes you make to your safety policies and procedures.

Additional Resources:

SB 606

Who: California employers

When: May 6, 2022

Update 5/10/22: Following the third adoption of the ETS in May 2022, Cal/OSHA released:

• An updated FAQ Page: COVID-19 Emergency Temporary Standards Frequently Asked Questions
• An updated FAQ Page: Revisions to the COVID-19 Prevention Emergency Temporary Standards (effective May 6, 2022) Frequently Asked Questions
• An Updated Fact Sheet Page: What Employers and Workers Need to Know about COVID-19 Isolation & Quarantine
• An Updated Fact Sheet Page: COVID-19 Prevention Emergency Temporary Standards. What Employers Need to Know About the April 21 Standards

Update 4/28/22: Cal/OSHA adopted the latest version of the ETS, going into effect once it is approved by the Office of Administrative Law, likely by May 5, 2022. The standard will remain in effect from May 6, 2022 until December 31, 2022. New FAQ guidance is expected soon and is expected to clarify the ETS and CDPH’s updated isolation and quarantine guidelines. Changes to the ETS include:

• All employees are still covered but with a few exceptions: workplaces with one employee who has no contact with others; employees working from home, employees covered by Cal/OSHA’s aerosol transmission standards (e.g., workers in laboratories, health care facilities, etc.), and employees teleworking from a location not controlled by the employers.
• Employers should check CDPH guidance and create and implement policies that prevent the transmission of COVID-19 by close contacts.
• “Close contact” and “high-risk exposure” definitions were adjusted to reflect CDPH’s guidance, e.g., “high-risk exposure” is now an “infectious period.”
• The face covering definition was updated to remove language about holding a mask up to a light to see if it shines through the material. Face covering requirements were also updated to reflect and reference CDPH guidance. Employers must still adhere to other applicable requirements like permitting employees to voluntarily wear face coverings unless it poses a safety hazard. Employees that are exempt from wearing facing coverings no longer need to adhere to social distancing requirements but still need to be tested at least weekly.
• The term “fully vaccinated” was deleted and doesn’t distinguish between vaccinated or unvaccinated employees.
• It also removes return-to-work criteria for close contact employees, employers are meant to follow CDPH or local area guidance.
• The term “returned cases” was added as a new definition for COVID-19 cases in the 90 days after the symptom onset, or first positive test) for those employees who returned to work following the ETS’ criteria and didn’t develop COVID-19 symptoms. All COVID-19 cases (regardless of vaccination status or prior infection) can’t return to work until five days have passed from the first symptom onset or first positive COVID-19 test, a minimum of 24 hours has passed since the employee had a fever of 100.4 F or higher, and a negative COVID-19 test result after five days or later, or 10 days after the first symptom onset if the employee was unable to get a test.
• Removal of the cleaning and disinfection rules
• Updated outbreak requirements: Employees who have had close contact must have a negative test within three to five days after the contact or must be excluded from and follow return-to-work guidance. Employees should maintain as much distance as is feasible, rather than using partitions where six feet of distancing can’t be met. Employers are required to have exposed employees get tested twice a week during a major outbreak or exclude exposed employees from work and have them follow return-to-work criteria.

Update 4/9/2022: Cal/OSHA will plan to readopt the emergency temporary standard for the third time, forgoing the proposed expiration date of May 5, 2022. A meeting to discuss proposed adoption changes and the removal of certain requirements to the ETS is set to be held on April 21, 2022. If passed, Cal/OSHA claims that this will be the final version of the ETS and will remain in effect until December 31, 2022.

Update 2/28/2022: Executive Order N-5-22 was signed by Governor Newsom, which states that masks will no longer be required for unvaccinated workers indoors starting on March 1^st, 2022, but is still recommended. The Cal/OSHA ETS that was set to expire on April 14, 2022 been extended to May 5, 2022. Cal/OSHA will review the mask guidance set forth by the California Department of Public Health to determine whether the ETS will be readopted following the May 5^th deadline.

Effective January 14, 2022 to April 14, 2022, although under  Executive Order N-23-21, the OSHA Standards Board could readopt the ETS for a third time and extend the April 14, 2022 date.

UPDATE: On January 14, 2022, Cal/OSHA issued updated information about ETS Fact Sheets and FAQs to address isolation and quarantine times. For individuals who are eligible for a COVID-19 booster but haven’t received it and are exposed to COVID-19, they do not need to quarantine provided they are asymptomatic and receive a negative test after 3-5 days.

Background from January 3, 2022:

What: The Cal/OSHA Standards Board has readopted its original COVID-19 Emergency Temporary Standard (ETS), including a number of revisions that include COVID-19 testing, social distancing rules, and face covering requirements for fully vaccinated employees under some circumstances. Below are the main revisions that employers need to know about and how to prepare for January 14, 2022.

Updated definitions were made for “face coverings,” “worksite,” “fully vaccinated,” and “COVID-19 test.” Face coverings now include the use of fabric that won’t allow light to shine through when held up to a light source as well as having a snug fit over mouth, nose and chin, and face coverings with a clear, plastic panel are allowable when used with people hard of hearing or deaf. COVID-19 tests now include home, over-the-counter, and point-for-care tests. Tests can’t be self-administered or read unless an employer or telehealth worker observes. Fully vaccinated includes vaccines administered during a clinical trial, although doesn’t include the mention of booster shots. The definition of worksites was updated to eliminate locations where employees worked alone, without any exposure to other employees, or worked at home or another alternative workspace while working remotely.

Screening for COVID-19 symptoms: If conducted indoors, screeners and employees must wear face coverings, regardless of if they’re vaccinated or not. Previously, fully vaccinated people did not need to wear a face covering.

Post-exposure notifications must be still be sent to all employees, and the ETS now clarifies that workers on-site at the same worksite as the COVID-19 case during the high-risk exposure timeframe must be notified within one business day. The notice must be sent through whatever the normal communication channels are for the organization. What should you do? Review your COVID-19 notification process still complies and uses a typical communication channel for your organization.

Post-exposure testing must be made available to fully vaccinated, asymptomatic employees at no cost. The initial ETS didn’t require this unless the vaccinated employee showed COVID-19 symptoms.

Excluding workers who are positive for COVID-19 from the workplace remains in place, but the readoption includes a clarification around fully vaccinated employees and those workers with natural immunity to the virus. These individuals don’t have to be excluded from the workplace if they have been exposed to COVID-19 and are asymptomatic, but they must wear a face covering and maintain social distancing for 14 days. Employers must provide these workers with information about precautions recommended by the California Department of Public Health.

The readoption of returning to work does not just apply to essential workers but all employees after coming into close contact with someone who has COVID-19, and includes several details for anyone who has been asymptomatic for 14 days following the exposure. These workers may return to work after the 14 days unless:

• 10 days have passed, and the worker wears a face covering and maintains social distancing for 14 days
• Seven days have passed, the worker tests negative for five consecutive days, and the worker wears a face covering and maintains social distancing requirements from others for 14 days.

The standard for multiple infections and outbreaks remains the same but now includes the requirement that employers must provide testing to employees, regardless of their vaccination status. Outbreaks are still defined as being three or more employees testing positive for COVID-19 within an exposed group during a 14-day period.

Employer-provided housing must now include HEPA air filters in all sleeping areas, where MERV 13 filters or higher aren’t being used, regardless of the number of employees residing in the space. Employers must also test all residents of employer-provided housing in the case of three or more COVID-19 positive cases in 14 days. Employers must also quarantine employees, regardless of their vaccination status, if anyone has come into close contact with a COVID-19 case.

Employers must provide face coverings to all employees, regardless of vaccination status, taking employer-provided transportation.

Next Steps:

• Review and update your COVID-19 Written Program to ensure it meets with the changes in this most recent readoption and consult legal counsel.
• Ensure that you have enough available face coverings or have the ability to access a supply if you need to provide them to employees.
• Be sure to communicate any policy and procedures changes with your employees.

Additional Resources

UPDATED 1/18/22: Revisions to the COVID-19 Prevention Emergency Temporary Standards (effective January 14, 2022) Frequently Asked Questions

UPDATED 1/18/22: What Employers Need to Know About the December 16 Standards

UPDATED 1/18/22: COVID-19 Isolation and Quarantine – What Employers and Workers Need to Know

California COVID-19 Resources

California Department of Public Health

California Executive Orders

UPDATE – COVID-19 Prevention Emergency Temporary Standards What Employers Need to Know About the December 16 Standards December 16, 2021 Fact Sheet

COVID-19 Prevention Emergency Temporary Standards – Fact Sheets, Model Written Program and Other Resources

COVID-19 Emergency Temporary Standards Frequently Asked Questions

Revisions to the COVID-19 Prevention Emergency Temporary Standards Frequently Asked Questions

Who:

• Employers with more than 25 employees.
• Smaller employers aren’t covered but might be covered by local supplemental paid sick leave rules.

When: Effective February 19, 2022, retroactive from January 1, 2022, through September 30, 2022

What: On February 9, 2022, Governor Newsom signed SB 114. Although the bill is retroactive to January 1, 2022, employers’ obligation to provide 2022 COVID-19 supplemental California paid sick leave (SPSL) doesn’t begin until February 19, 2022.

For businesses that complied with the 2021 SPSL law, most of the new law will be similar, but there are some differences. For example, where the Cal/OSHA COVID-19 Emergency Temporary Standards or Cal/OSHA’s Aerosol Transmissible Diseases Standard requires employers to track an employee’s earnings when the worker is excluded from work because of exposure to COVID-19, employers can’t require an employee to first use SPSL.

Additionally, businesses may have to comply with the 2022 law as well as local COVID-19 supplemental paid sick leave ordinances.

Who qualifies for the 2022 SPSL

Employees who can’t work or telework may use SPSL for qualifying reasons, including:

• A COVID-19-related quarantine or isolation period as defined by federal, state, or local regulations
• A health care provider has advised the employee to self-quarantine or isolate for COVID-19-related reasons.
• The employee or employee’s family member (defined as child, grandchild, grandparent, parent, sibling, or spouse) is receiving a COVID-19 vaccine or booster
• An employee or family member shows symptoms related to the COVID-19 vaccine or booster that prevents the person from working or teleworking.
• An employee is showing symptoms of COVID-19 and is getting a medical diagnosis
• An employee is caring for a family member under a COVID-19-related quarantine or isolation or has been advised to self-quarantine or isolate by a health care provider.
• An employee needs to care for a child whose school or day care has closed or is unavailable for COVID-19-related reasons
• A COVID-19 positive test or caring for a family member who tests positive for COVID-19.

Amount of SPSL Leave

The leave calculation is different from the 2021 law by establishing two “up to 40-hour” leave banks.

• The first “up to 40-hour” leave bank is available only if the employee tests positive or cares for a family member who tests positive for COVID-19.
• The second “up to 40-hour” leave bank is available only for other covered reasons like quarantine, isolation, vaccine or booster appointments, child care/school closure, etc.

The second leave bank may be limited to three days or 24 hours and is only applicable to a vaccine booster shot or vaccine shot.  If a health care provider verifies an employee’s symptoms related to a vaccine or booster, over three days/24 hours may be available to the employee. The law doesn’t provide guidance regarding categorizing an employee’s use of the first or second leave bank.

The maximum amount of leave an employee may receive is 80 hours for full-time employees and a proportionate amount of time for other employees. Full-time employees should receive 40 hours for each leave bank if the employee is considered full-time or has worked or was scheduled to work on average at least 40 hours per week in the preceding two weeks from the date they took leave.

Other employees should receive the total number of hours they are regularly scheduled to work over one week for each leave bank. Those who work a varying number of hours and have a tenure of at least six months should receive seven times the average number of hours they worked every day in the six months before their leave date for each leave bank. If the employee has only worked between eight days and six months, employers must use the same calculation for the employee’s entire employment period. Employees who worked seven days or less should receive hours equal to their total number of hours worked for each leave bank.

If employees already received paid leave in 2022 before the law took effect, the leave might satisfy the employer’s 2022 SPSL obligations. The leave must be of equal or greater value than the amount of pay that the law requires and must have been a supplemental benefit, meaning that employers can’t have used paid sick leave under California’s Healthy Workplaces, Healthy Families Act, or the 2021 SPSL. If the leave was compensated at a lower rate than the current law, employers must retroactively increase the pay to the 2022 SPSL. If the payment is made because of the employee’s request, payment must be made on or before the next full pay period payday.

In situations where employers paid an equal or greater amount than the 2022 SPSL requirement and the employee requests to apply the 2022 SPSL to a prior absence, the employer must apply the 2022 SPSL to that absence.

Employee Obligations to Use Leave

Employees may choose if they will use SPSL leave or another paid or unpaid leave to cover an absence.

Employees may make an oral or written request to use 2022 SPSL leave immediately starting on February 19, 2022.

The law doesn’t generally contain language if employers ask employees to submit documentation of their leave needs.

Employers can require employees to provide documentation of a test result when leave is being used for a positive COVID-19 test result for the employee or family member. If the employee refuses documentation, employers can deny the request.

When an employee or family member tests positive, employers may require employees to take another test on or after the fifth day following the first test and submit the results. In this scenario, employers must provide the test at no cost.

Rate of Pay

The pay rate calculation can’t use a “highest of” pay rate standard for non-exempt employees, which was acceptable under the 2021 law. The regular rate of pay is calculated one of two ways:

• The same as the regular rate of pay for the workweek, the employee uses the paid leave, regardless of if the employee works overtime
• Dividing the employee’s total wages by the employees total non-overtime hours worked in full pay periods within the previous 90 days worked as long as the pays the employee by a “piece rate, commission, or another method that uses all hours to determine the regular rate of play.”

For exempt employees, SPSL is calculated like other paid leave time and caps the amount to be paid at $511/day or $5,110 total.

Notice Requirements

On February 17, the California Labor Commission published the model poster (English | Spanish) for employers to display in a prominent place or distribute the poster electronically.

Employers must also report available SPSL on paystubs or other written notices employees receive on payday. The paystub requirement isn’t enforceable until the next complete pay period after February 19, 2022. Retroactive payments must also be displayed on the paystub for the pay period the payment was made. Employers only need to report the 2022 SPSL hours that an employee has used or using zero-hours until an employee uses the leave.

Next Steps:

• Post in a prominent workplace area or email the COVID-19 Supplemental Paid Sick Leave 2022 poster to employees.
• Determine how you will itemize and display the 2022 Supplemental Paid Sick Leave amounts that show how much time an employee has used.
• Employers located in Long Beach, Los Angeles (City and County), and Oakland should monitor local agency websites for additional information regarding the interaction between local paid sick leave ordinances and the 2022 SPSL.
• Employers should review their current supplemental paid sick leave policies and procedures and develop an action plan to update them in compliance with the 2022 SPSL, seeking legal counsel for additional guidance.
• Employers should be ready to communicate these changes with their employees.
• Review the 2022 COVID-19 SPSL FAQs for additional guidance.

Additional Resources

COVID-19 Supplemental Paid Sick Leave 2022 (Spanish)

COVID-19 Supplemental Paid Sick Leave 2022 (English)

SB 114

California COVID-19 Resources

California Department of Public Health

California Executive Orders

FAQs on Exclusion Pay Under the Emergency Temporary Standard

California Department of Industrial Relations Workplace Postings

2021 COVID-19 Supplemental Paid Sick Leave FAQs

2022 SPSL FAQs

Who: California residents and businesses

When: Effective Immediately

What: On February 17, 2022, Governor Gavin Newsom announced a plan that shifts California’s approach to COVID-19 from a pandemic to an endemic phase, meaning to formalize policies and initiatives to live with the virus as immunity to it increases. The plan is focused on prevention and fast response to outbreaks.

The new approach is for Shots, Masks, Awareness, Readiness, Testing, Education, and Rx (SMARTER). The plan involves a number of elements including:

• Stockpiling 75 million masks
• In the case of an outbreak, implementing an infrastructure that can provide up to 200,000 vaccinations/day, 500,000 tests/day, and places 3,000 health care workers in the outbreak location within three weeks
• Making sure that local agencies have the ability to order effective therapeutics within 48 hours
• Increase vaccination sites at schools by 25% as eligibility expands
• At first signs of a surge in cases, increase monitoring for the virus in wastewater
• Encouraging the use of masks in a number of settings
• Determine if a surge in cases is the result of a new variant and within 30 days determine its response to existing tests, treatments, and immunity from vaccines or prior infections.
• The state vaccine requirement (by the fall of 2022) for school-aged children remains in effect.
• The plan includes the products of “myth-buster” videos to dispel misinformation

Through these initiatives the SMARTER plan seeks to prevent businesses from closing, the need for extensive mandates, and shift the response to COVID-19 towards normalcy.

Next Steps:

Continue to monitor for ongoing changes that will impact employers and businesses.

Additional Resources

California COVID-19 Resources

California Department of Public Health

California Executive Orders

California SMARTER Plan

Who: California healthcare employers and employees

When: Effective February 1^st, 2022

What: Due to the rising spread of the Omicron variant, the state of California has issued an order requiring all healthcare workers, adult care facilities workers, and direct care workers to receive a COVID-19 vaccine booster shot by February 1^st.

Per the order, healthcare workers are defined as any paid and unpaid individual who works in an indoor setting where care is provided to patients. These workers include those who operate within:

• General acute care hospitals.
• Skilled nursing facilities (including subacute facilities).
• Intermediate care facilities.
• Acute psychiatric hospitals.
• Adult day health care centers.
• Program of All-Inclusive Care for the Elderly (PACE) and PACE centers.
• Ambulatory surgery centers.
• Chemical dependency recovery hospitals.
• Clinics and doctor offices (including behavioral health, surgical).
• Congregate living health facilities.
• Dialysis centers.
• Hospice facilities.
• Pediatric day health and respite care facilities.
• Residential substance use treatment and mental health treatment facilities.
• Adult and senior care facilities licensed by the California Department of Social Services

Workers affected by this order include, but are not limited to:

• Support services staff.
• Hospice providers.
• Physicians.
• Nurses.
• Nursing assistants.
• Technicians.
• Therapists.
• Waiver personal care services (WPCS) providers.
• In-home supportive services (IHSS) providers.
• Registered home care aides.
• Certified home health aides.
• Students.
• Trainees.
• Contractual staff not employed by the residential facility, but who could be exposed to infectious agents, such as administrators, security officers, custodians, and volunteers.

Workers currently not eligible for a booster shot by February 1^st must be in compliance with the order no later than 15 days following the recommended timeframe. Vaccine exemption is available for workers who decline the vaccination requirement on the grounds of religious beliefs or medical reasons, provided the worker can produce a declination form to their employer. Workers exempt from vaccination must follow state-ordered testing and masking requirements.

How:

• Review your current policies and procedures and update them to comply with the current order.

Additional Resources:

California COVD-19 Resources

California Department of Public Health

California COVID-19 Executive Orders

Public Order Questions and Answers: Healthcare Worker Vaccine Requirement

Who: California employers and employees

When: Effective immediately through February 15, 2022

What: On January 5, 2022, California extended its statewide masking mandate from January 15, 2022 to February 15, 2022 due to the spread of the COVID-19 Omicron variant. On February 15, 2022, the mandate will be reevaluated and potentially extended.

All people over the age of 2 are required to wear a face mask in all public settings, such as restaurants and retail stores, regardless of personal vaccination status.

The state of California recommends N95 and KN95 masks as the most effective facial coverings to prevent the spread of COVID-19. Double masking is also encouraged.

The new mandate comes in response to a nearly 500% rise of Omicron cases reported across California within the first two weeks of 2022.

California’s health director has stated that at this time, no additional statewide measures or restrictions are being considered to limit the spread of COVID-19.

As of January 2022, roughly 80% of Californians have received at least one dose of a COVID-19 vaccine.

How:

Review your current policies and procedures and update them to comply with the current mandate

Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

California COVD-19 Resources

California Department of Public Health

California COVID-19 Executive Orders

California Department of Public Health Guidance for the Use of Face Coverings

California Face Mask Fact Sheet

California Face Coverings Q&A

Get the Most out of Masking

Who: California employers and employees

When: Effective December 15, 2021 through January 15, 2022

What: On December 13, 2021, Governor Gavin Newsom’s administration announced the return of an indoor mask mandate for the state of California for all public areas effective beginning December 15, 2021 until January 15, 2022. The order extends to all California residents and visitors regardless of vaccination status.

The new guidance comes following vaccination mandates for California state employees, healthcare workers, and public school teachers and students. As of December 14^th, over 70% of eligible California residents have been fully vaccinated against the Coronavirus.

The indoor mask mandate is being enforced as a response to a rapid rise in local cases of COVID-19 across the state of California and as a mitigating factor against the spread of the Omicron variant. Within the two weeks prior to December 14^th, 2021, the number of reported Coronavirus cases have increased by nearly 50%, and hospitalizations due to COVID-19 are up to nearly 15%.

California counties including Los Angeles, Ventura, Sacramento, and the majority of the San Francisco Bay Area have issued their own individual indoor mask mandates prior to the December 14^th state guidance and currently have no end dates. Remember, where county and local mandates/orders are more restrictive than state-wide orders, you should err on the side of following the local mandates/orders.

Additionally, the state of California has ordered unvaccinated people attending indoor events of 1,000 people or more to produce a negative COVID-19 test prior to attendance. Those traveling are also recommended to get tested within three to five days of their arrival or return to California.

The first reported case of the Omicron variant within the United States was discovered on December 1^st, 2021 in California. As of December 14^th, over half of all states within the US have reported cases of the Omicron variant.

Per the new guidance, California employers remain subject to the regulations and requirements of the California/OSHA COVID-19 Temporary Standards and in some cases, the regulations and requirements of the California/OSHA Aerosol Transmissible Diseases Standard.

How:

• Review your current policies and procedures and update them to comply with the current law.
• Educate and inform your employees about state mandates and safety protocols.

Additional Resources:

California Department of Public Health Guidance for the Use of Face Coverings

California Department of Public Health Guidance

State of California COVID-19 Resources

State of California Executive Orders