Up-to-date information for employers on topics and issues that may affect workplace operations. The posts are current as of the date of the posting.

New California Workplace Laws (Part Two)

by Jennifer Shaw and Julia Melnicoe Insel | The Daily Recorder | November 18, 2021

As we discussed in our previous article, “New California Workplace Law, Part One,” employers must be aware of a number of new California employment laws. Below is a brief summary of Part Two. Of course, employers should seek advice from experienced employment counsel for more information.

AB 701.  This law requires warehouse distribution centers to provide new employees written notice of applicable “production quotas” (e.g., minimum productivity, speed, or accomplished within a work period) and any consequences for failing to meet them. Quotas that impede meal and rest breaks, restroom use, or violate health and safety standards, are unlawful under AB 701. The law also creates a rebuttable presumption of retaliation if an employer takes an adverse action against an employee within 90 days of an employee requesting information about a quota or complaining that the quota violates the law.

SB 62. Under SB 62, “brand guarantors” – businesses that contract for garment manufacturing, including dyeing, altering a garment’s design, and affixing a label to a garment – cannot pay garment manufacturers by piece rate.  The law also imposes new recordkeeping and record retention requirements, and imposes joint and several liability on manufacturers and contractor for unpaid wages, interest, civil penalties, and attorneys’ fees due to garment employees.

SB 639. This law will phase out licenses to pay subminimum wages to individuals with physical or mental disabilities. No new licenses will be issued starting in 2022. Existing licenses will be discontinued on January 1, 2025, or when a multiyear phase-out plan is released, whichever is later.

AB 73. Effective September 27, 2021, AB 73 provides that agricultural workers are “essential workers” for the purpose of public health emergencies. The law also establishes wildfire smoke as a public health emergency, entitling agricultural workers to access the state’s emergency personal protective equipment (“PPE”) stockpile when wildfire smoke reaches dangerous levels. In addition, AB 73 requires Cal/OSHA to update its wildfire smoke hazard training. Employers will be required to provide the updated training in a language and manner readily understandable by employees, taking into account their ethnic and cultural backgrounds and education levels, including the use of pictograms, as necessary.

SB 362. This law prohibits chain pharmacies (a chain of 75 or more stores in California under the same ownership) from establishing quotas for pharmacists or pharmacy technicians, such as filling a certain number of prescriptions in a particular time period.

SB 270. Unions representing public sector employees may file an unfair practice charge against agencies for failing to provide employee demographic information (including name, job title, department, work location, and contact information) to unions under this new law. Agencies may be subject to fines of up to $10,000 and attorneys’ fees for failing to “cure” alleged violations in a timely manner.

SB 657. Existing law does not permit employers to provide require workplace postings to remote employees electronically. This law allows electronic distribution of postings, but still requires employers to display them at the physical worksite.

SB 727. This law expands wage and hour liability for employers in the construction industry. Contractors currently are jointly liable for unpaid wages, benefit payments, or contributions owed to a worker or labor trust fund by a subcontractor (e.g., workers’ compensation or unemployment insurance benefits). SB 727 makes the contractor jointly liable for any penalties and liquidated damages related to unpaid wages and benefits.

SB 646.  SB 646 provides that most janitorial employers are exempt from wage-hour claims under California’s Private Attorneys General Act if they enter into a collective bargaining agreement that contains certain provisions.

AB 1407. This law requires hospitals to include implicit bias in new graduate training programs.  The program must focus on specific forms, sources, and remedies for bias, such as unconscious biases and misinformation, and identification of personal, interpersonal, institutional, structural, and cultural barriers to inclusion.

The California Privacy Rights Act/California Consumer Privacy Act. The California Consumer Privacy Act of 2018 (“CCPA”) gave consumers more control over the personal information businesses collect about them.  In 2020, Proposition 24 created the California Privacy Rights Act (“CPRA”) to build on the CCPA’s requirements. The CPRA allows employees to request a compilation of personal information collected by their employer, make corrections, and seek deletion of information in certain circumstances.

Although the CPRA is not effective until 2023, many of its provisions require employers to “look back” 12 months when responding to requests relating to personal information.  So, the information employers collect on or after January 1, 2022, may be subject to CPRA requests in 2023. Employers therefore should carefully consider the sources of personal information collected from employees; how such information is stored; how it may be accessed; and whether any contracts with vendors (such as payroll providers) are CPRA-compliant.

Employers must also ensure that their record retention practices meet both the CCPA and CPRA’s strict security requirements. Because personal information can be collected and maintained through many departments (e.g., Human Resources, IT, Marketing, etc.), employers should consider a “data mapping” project as soon as possible to better understand the flow of employee data within their organization.