The California Labor Code has been updated to reflect changes in labor law. The following is a summary of the key updates to be aware of as a California employer though these include Federal changes as well. All of the updates to the laws referenced below go into effect on January 1, 2023, unless otherwise stated.
This checklist will help you ensure that your policies and procedures are updated to reflect employment law changes for 2023.
Assembly Bill 1041 CFRA update
Assembly Bill 1041 updates laws surrounding paid leave, expanding California Family Rights Act leave to include care for a “designated person”. The “designated person” is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship. The “designated person” must be identified by the employee at the time the employee requests leave. An employer may limit an employee to one designated person per 12-month period for family care and medical leave.
The Paid Sick Leave portion of Assembly Bill 1041 also expands paid sick leave to include “designated person” in the definition of a family member. There are a few important distinctions to this with San Francisco, Berkeley, Oakland, and Emeryville’s paid sick leave laws. The use of a designated person is only permitted if the employee has no spouse or registered domestic partner. An employee must make this designation no later than the date on which the employee has worked 30 hours after the sick leave begins to accrue, and the employee has 10 workdays to make the designation, 14 calendar days in Emeryville. Thereafter, the employee can only identify a designated person annually within a 10-workday window, 14 calendar days in Emeryville.
Assembly Bill 1949 – Bereavement Leave
Assembly Bill 1949 focuses on bereavement leave, which is now a protected form of leave. This update provides five days of bereavement leave upon the death of a family member which includes: a child, parent, sibling, spouse, grandparent, domestic partner, or parent-in-law. The five days don’t need to be taken off consecutively, but they must be used within three months from the date of death of the family member. The employer may request documentation of the death of a family member prior to granting leave.
In order to be eligible for bereavement leave an employee must have been employed with the business for at least 30 days prior to the commencement of leave. There is no restriction on the number of hours worked. Although this time is unpaid, employees may use vacation, personal leave, paid sick leave, or compensatory time off if they choose to do so.
Assembly Bill 2188 – Use of Cannabis off hours
Assembly Bill 2188 makes it unlawful to discriminate against an employee based on their use of cannabis off the job and away from the workplace or based on a drug screen that finds non-psychoactive cannabis metabolites. That means what remains after THC is metabolized and stored in the body. Employers are still entitled to conduct pre-employment drug screens that do not include screening for non-psychoactive cannabis metabolites. This does not apply to building and construction trades or to positions that require a federal background investigation or security clearance. We recommend you clarify in your handbooks substance abuse policies that testing will not screen for non-psychoactive cannabis metabolites unless such testing is required as outlined above.
California SB 1162 – Pay Transparency
Employers with 15 or more employees must include in any job posting the pay scale for the position. This applies to direct postings by the employer, and to job postings by a third party.
- Pay Scale: The salary or hourly wage range that the employer reasonably expects to pay for the position.
All employers must provide the pay scale for a position to an applicant upon reasonable request, regardless of whether the applicant has completed an initial interview or not. In addition, employers must provide an employee with the pay scale for the employee’s current position upon request.
All employers must maintain records of a job title and wage rate history for each employee for the duration of the employment plus three years after the end of the employment.
California Assembly Bill 51 – Arbitration Agreement
This bill has gone back and forth through the courts. Initially, this bill would have prohibited employers from requiring employees to sign arbitration agreements as a term of employment.
Here is the timeline for California Assembly Bill 51:
- January 1, 2020: The bill was stayed by a federal trial court preliminary injunction, pending further litigation.
- September 15, 2021: U.S. Ninth Circuit Court of Appeals reversed the stay. That means the bill would go back into effect, prohibiting the requirement of arbitration agreements by employers.
- August 22, 2022: U.S. Ninth Circuit Court of Appeals withdrew its order reversing the stay.
This means at this time, the stay on AB 51 appears to be in effect, such that mandatory employee arbitration agreements are allowed. You’ll want to stay tuned for anticipated further rulings in this court case.
We are recommending that employers proceed with arbitration agreements for employees since it is a way to prevent huge attorney fees while being fair to both parties when executed correctly.
Field Assistance Bulletin Posting
Because of the trend of working remotely, the Department of Labor (DOL) Wage and Hour Division (WHD) allows employers to have most of the statutes required to be posted on a labor law poster shared with employees electronically. These statutes are called Field Assistance Bulletin (FAB) and must be clearly posted. Where particular statutes and regulations permit the delivery of notices electronically, to individual employees, the notice requirements may be met via email delivery or another similar method of electronic delivery. But, this is allowed only if the employee typically receives information from the employer electronically. Sharing the notices must be done in the same manner the employer usually communicates with employees.
Posting these notices on an unknown or little-known electronic location has the effect of hiding the notice. That would be equivalent to posting a hard-copy notice in an inconspicuous place, such as a custodial closet or a little-visited basement. Moreover, if the affected individuals cannot easily determine which electronic posting is applicable to them and their worksite, WHD will consider the posting insufficient.
CA COVID-19 Exposure
The current bill regarding COVID-19 safety and notification requirements has been extended and will remain in effect until January 1, 2024. This bill extends the previous requirements for notification in the event of COVID-19 exposure. If you are unsure of the COVID-19 employer requirements, you can reach me for help by replying to this email or calling us at 408-834-9069.