2021 brought employers an avalanche of new laws and ever-changing COVID-19 obligations. The good news is that the California Legislature gave employers a bit of a break this session, and the changes for 2022 are not too overwhelming. Below is a brief summary of some of the new laws, a few of which are already in effect. Employers should seek guidance from experienced employment law counsel for more detailed information.
AB 1003. Intentional “wage theft” (that is, failing to pay wages with the knowledge that compensation is due) in excess of $950 from any employee or misclassified independent contractor will be punishable as “grand theft.” That means that employers may be charged with a felony, and sentenced to county jail. Unfortunately, courts and the DLSE have interpreted “intentional” withholding of wages broadly, to include even unintentional miscalculations and oversights.
AB 1033. New amendments to the California Family Rights Act (“CFRA”) add “parent-in-law” and one ”designated person” as covered family members for purposes of CFRA leave. Employers may limit employees’ selection of a “designated person” to once every 12 months.
The amendments also provide more specifics regarding the Department of Fair Employment and Housing’s mediation program for small employers. Employers should update their CFRA policies and forms, and stay tuned for additional CFRA regulations.
SB 331. Building on current “#MeToo” laws intended to encourage transparency regarding sexual harassment, SB 331 prohibits non-disclosure clauses in settlement agreements involving workplace harassment or discrimination of any kind, not just sex.
This law also prohibits employers from requiring non-disparagement and similar agreements d as a condition of employment that restrict employees from disclosing information about unlawful acts in the workplace, unless the agreement includes a carve-out for employees to discuss workplace conduct they have “reason to believe” is unlawful. The same prohibition will apply to severance agreements, which now must state that employees have a right to consult an attorney and have at least five days to decide whether to sign the agreement. SB 331 does not affect confidentiality provisions regarding settlement amounts.
SB 807. With this new law, employers must maintain “applications, personnel, membership, or employment referral records and files” for at least four years. The law does not define “personnel records,” but the California Division of Labor Standards Enforcement interprets them to include documents relating to employee performance, grievances, and documents signed by the employee relating to obtaining or holding employment.
SB 606. Cal/OSHA’s authority is expanded under SB 606, which includes a presumption that violations at more than one worksite, or written policies that violate a Cal/OSHA regulation, demonstrate “enterprise-wide” violations, which carry heavy fines and penalties. In addition, the agency will consider every violation of applicable law to be a separate violation for each employee when calculating fines and penalties. For example, if an employer fails to administer a compliant COVID-19 Prevention Program, it may be subject to significantly increased liability based on its employee population.
AB 654. This law became effective on October 5, 2021, and clarifies last year’s COVID-19 workplace notice law, AB 685. AB 654 requires employers to notify employees about potential COVID-19 exposure and available benefits if they were at the same worksite as the “qualifying individual” (i.e., a person who has tested positive or been diagnosed with COVID-19, or ordered to isolate) within that person’s infectious period. (The previous law only required notice of benefits to individuals who “may have been exposed.”)
Other clarifications include excluding telecommuters from COVID-19 notification requirements, and changing the “outbreak” reporting requirement to one business day or 48 hours, whichever is later.
SB 93. Effective on April 16, 2021, this law requires hotels, private clubs, event centers, airport hospitality operations, airport service providers, janitorial/building maintenance providers, and security services to make written rehire offers to employees laid off due to COVID-19 under certain circumstances. The DLSE may order reinstatement, front and back pay, and benefits, as well as impose substantial penalties and liquidated damages, for violations.