Employment Law Updates – What’s New for 2024
The following laws go into effect January 1, 2024, unless otherwise noted.
Off-Duty Cannabis Use (AB 2188): Prohibits most employers from discriminating or retaliating against applicants and employees for off- the-job cannabis use.
Prior Cannabis Use (SB 700): Expands AB 2188 and also makes it unlawful for an employer to discriminate against an employee or applicant based on information regarding prior use of cannabis that is learned from a criminal history report, unless otherwise permitted by law.
Paid Sick Leave (SB 616): SB 616 expands California’s existing paid sick leave law and requires employers to provide at least 5 paid sick days (40 hours) per year to an employee instead of 3 days (24 hours). The law also provides that any alternative to the standard accrual method (one hour of leave for every 30 hours of work) must result in the accrual of 24 hours by the end of an employee’s 120th day of employment and 40 hours by the 200th day. Employers who use an upfront leave allocation must provide at least 40 hours at the beginning of each year. This law raises the total amount of paid sick leave that employers must permit employees to accrue and carry over from year to year from 6 days (48 hours) to 10 days (80 Hours). The new state law supersedes any local ordinance that provides less sick leave than the new state requirement.
State Minimum Wage (SB 3): California law mandates that the minimum wage be increased when certain inflation-related events occur. The current minimum wage for all employers (including both employers with 25 or fewer employees and those with 26 or more employees) is $15.50. As a result of the inflation-related minimum wage increase, the minimum wage rate for all employers with California employees will increase to $16.00.
COVID-19 Right of Recall (SB 723): Effective immediately, this law amends SB 93, which required certain employers in hospitality and service industries to rehire employees laid off due to the COVID-19 pandemic. Current law requires a covered employer to offer its laid-off employees specified information about job positions that become available for which the laid-off employees are qualified and to offer positions to those laid-off employees based on a preference system, in accordance with specified timelines and procedures until December 31, 2024. SB 723 extends the sunset date of SB 93 from December 31, 2024 to December 31, 2025 and redefines “laid off employee” to include those who were employed for at least six months and whose most recent separation occurred on or after March 4, 2020, for a reason related to the COVID-19 pandemic. Further, it creates a presumption that a separation due to a lack of business, reduction in force, or other economic, non-disciplinary reason is due to a reason related to the COVID-19 pandemic, unless the employer establishes otherwise by a preponderance of the evidence.
Defamation Protection Privilege (AB 933): This bill expands protections for speech, made by an individual regarding an incident of sexual assault, harassment, or discrimination and would specify the attorney’s fees and damages available to a prevailing defendant in any defamation action brought against that defendant for making that communication. This bill would make it harder for perpetrators to retaliate against survivors with legal threats and intimidation.
Enforcement of Non-Compete Agreements (SB 699): SB 699 establishes that any contract that is void under California’s non-compete prohibition is unenforceable regardless of where and when the contract was signed. The bill prohibits an employer or former employer from attempting to enforce a contract that is void regardless of whether the contract was signed and the employment was maintained outside of California.
Non-compete agreements-Unlawful (AB 1076): AB 1076 makes it unlawful to impose non-compete clauses on employees. Under AB 1076, employers must notify current employees and former employees (employed after January 1, 2022) that any non-compete agreement or non-compete clause contained within an agreement they signed is void, unless the agreement or clause falls within one of the statutory exceptions. Such notices must be provided by February 14, 2024.
Unpaid Leave for Reproductive Loss (SB 848): This law will require qualified employers to provide at least 5 days of unpaid leave to employees for a “reproductive loss event.” The term is defined to mean a failed adoption, failed surrogacy, miscarriage, stillbirth or unsuccessful assisted reproduction.
Retaliation Presumption (SB 497): Establishes a rebuttable presumption in favor of the employee bringing a retaliation claim. If an employer takes any adverse employment action against an employee within 90 days of the employee engaging in a specified protected activity (i.e., making complaints about unpaid wages, making complaints about equal pay violations, and making complaints related to rights that are under the jurisdiction of the Labor Commissioner) it will be automatically presumed that the employer’s motivation was retaliatory.
Workplace Violence Prevention Plan (SB 553): This law mandates all employers, except for healthcare employers to establish, implement, and maintain a workplace violence prevention plan. The law has a number of specific requirements, e.g., the plan must be in writing, accessible by employees and maintain a log of workplace violent incidents, in addition, employers must identify and evaluate unsafe working conditions and train employees on the workplace prevention plan.
Healthcare Minimum Wage (SB 525): Effective June 1, 2024, this law raises the minimum wage for California healthcare employees (range of $18-$25/hour) and expands the type of workers that the law covers to encompass potentially every employee in a hospital, clinic, medical office, etc. There are 5 different wage schedules depending on how a facility is classified (i.e., facility size, type, location and governmental payor-mix percentage).
Food Handler Cards (SB 476): This law requires food facility employers to pay an employee for any cost associated with obtaining a food handler card, including the time it takes for the employee to complete the training program. The law prohibits employers from conditioning employment on an applicant having an existing food handler card.
National Labor Relations Board (NLRB) Decisions:
The NLRB announced the legal standard it will use to judge whether an employer’s rules and policies are lawful. Under Stericycle Inc. if the NLRB challenges an employer’s rule or policy, the Board’s General Counsel must prove to the NLRB that the challenged rule has a reasonable tendency to chill employees from exercising their rights. If the General Counsel proves this, then the rule is presumptively unlawful. However, the employer has an opportunity to rebut the presumption by providing that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.
In Lion Elastomers LLC, the NLRB held that the National Labor Relations Act (NLRA) may protect even offensive, profane, and disrespectful workplace conduct when it occurs in connection with otherwise protected concerted activity such as discussing workplace conditions or wages. The NLRB held that “to fully protect employee rights, conduct during protected concerted activity must be evaluated in the context of that important activity—not as if it occurred in the ordinary workplace context.”
The NLRB General Counsel sent a memo setting forth her view that non-compete agreements and enforcement of non-compete provisions in employment contracts and severance agreements violate the NLRA , except in limited circumstances.
Cal/OSHA-Proposed Indoor Heat Illness Regulation: California regulators are poised to adopt a heat illness standard for indoor work areas that will be triggered when the temperature reaches 82 degrees Fahrenheit.
CRD Criminal History Regulations: Effective October 1, 2023, changes to the Fair Employment and Housing Act (FEHA) regulations mandate that employers cannot include statements in job advertisements, postings, applications, or other materials that persons with a criminal history will not be considered for hire. If an applicant voluntarily offers information about their criminal history prior to receiving a conditional offer, the new regulations make it clear that the employer still cannot consider such information. The revised regulations expand on the individualized assessment process that the employer must engage in to determine if the conviction has a direct adverse effect on the applicant’s ability to perform their job duties. The term “applicant” now includes not only a candidate for employment, but also employees applying for internal positions and employees who undergo background checks in connection with a change in ownership, a change in management or a change in policy or practice.
An Ounce of Prevention
The Mitzel Group recommends that employers annually review their written procedures and policies to ensure all applicable changes are reflected in their company policies. Please reach out with any questions or concerns regarding any of the employment law changes and the impact on your business. We are always here to help.
For our clients that are located outside of California, please reach out and we will go over the relevant regional and state laws to help keep you in compliance.
As always, The Mitzel Group is available to assist you and your team.
