In 2022 there will be a host of new California labor and employment laws that employers must navigate as they review and update their policies and practices. This post highlights key pieces of legislation that are due to take effect in the new year. Unless otherwise noted, all new laws discussed below will be effective as of January 1, 2022.
AB 701: Regulating Production Quotas in Warehouse Distribution Centers. AB 701 requires employers that operate large warehouses to provide their nonexempt warehouse workers with a written description of the quota(s) that each worker is required to meet. This written description must include (1) the quantified number of tasks the employee is to perform (or the quantified number of materials the employee is to produce or handle) within a defined time period, and (2) any potential adverse employment action that could result from a failure to meet the quota. AB 701 provides that workers will not be required to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities, or certain occupational health and safety laws, and prohibits employers from taking adverse employment action against workers who fail to meet quotas that are either not disclosed to them, or do not permit the worker to comply with meal or rest periods or occupational health and safety laws.
AB 1003: Criminalizing Wage Theft as Grand Theft. AB 1003 provides that an employer’s intentional failure to pay wages, including gratuities, may be punishable as grand theft if the failure results in unpaid wages in an amount greater than $950 from any one employee, or $2,350 in the aggregate from 2 or more employees during a 12-month period. Under AB 1003, independent contractors are included within the meaning of employee, and hiring entities of independent contractors are included within the meaning of employer.
AB 1023: Requiring Monthly Posting of Electronic Records by Contractors on Public Works Projects. AB 1023 requires contractors working on public works projects to submit various records (as required under Labor Code Section 1771.4) electronically, in the manner specified on the Labor Commissioner’s website, at least once every 30 days while work is being performed on the contract, and within 30 days following the last day of work performed on the project.
AB 1033: Extending Protected Time Off to Include Care of a Parent-in-Law. AB 1033 amends the California Family Rights Act (“CFRA”), Government Code Section 12945.2, to add parents-in-law to the list of family members for whom an employee may take leave to provide care. The bill also clarifies the requirements of the small employer mediation program of the Department of Fair Employment and Housing (“DFEH”), requiring that the DFEH notify an employee seeking an immediate right-to-sue alleging violations of the family care and medical leave provisions of the CFRA of the requirement for mediation prior to filing a civil action, if mediation is requested by the employer or employee. The small employer mediation program covers employers with between 5 and 19 employees.
AB 1561: Extending Certain Independent Contractor Exemptions. Under current law, certain specified occupations are exempted from the ABC test used to determine if workers are employees or independent contractors. AB 1561 extends these exemptions until January 1, 2025 for (1) services provided by licensed manicurists; (2) the relationship between certain construction contractors and subcontractors; (3) the relationship between data aggregators and research subjects; (4) persons or organizations licensed by the Department of Insurance, or persons who provide underwriting inspections, premium audits, risk management, or loss control work for the insurance and financial service industries; (5) persons who provide claims adjusting or third party-administration; and (6) manufactured housing salespersons.
SB 331: Restricting the Use of Nondisparagement Agreements. As we highlighted in our previous blog post, the Silenced No More Act expands existing California law limiting the use of non-disclosure agreements (“NDAs”) in settlements. Currently, California law restricts the use of NDAs in agreements settling claims alleging assault, discrimination, harassment, or retaliation on the basis of sex. SB 331 expands this prohibition to all legally protected bases, and also clarifies that NDAs cannot be used in certain employment agreements (such as bonus or separation agreements) to prevent or restrict disclosure of factual information related to unlawful acts in the workplace.
SB 572: Authorizing the Labor Commissioner to Record Liens on Real Property. As an alternative to judgment liens, SB 527 authorizes the Labor Commissioner to create a lien on real property in order to secure amounts due to the commissioner under any final citation, findings, or decision. Unless satisfied or released, a lien on real property created by the Labor Commissioner continues for 10 years from the date of creation and may be renewed for additional periods of 10 years by recording a renewal of certificate of lien or a copy of a renewed judgment at any time prior to the lien’s expiration.
SB 606: Establishing New Categories of Workplace Health and Safety Violations. SB 606 provides a significant update to existing workplace health and safety law by establishing two new categories of violations: (1) “enterprise-wide” violations, and (2) “egregious” violations. Under this bill, Cal/OSHA may issue “enterprise-wide” violations where an employer maintains more than one worksite. SB 606 establishes a rebuttable presumption of enterprise-wide violations where the employer has a written policy or procedure that violates California’s occupational safety laws, or where evidence demonstrates a pattern or practice of the same violation involving more than one of the employer’s worksites. If the employer fails to rebut this assumption, SB 606 authorizes Cal/OSHA to issue an enterprise-wide citation requiring abatement on an enterprise-wide basis.
SB 606 also requires Cal/OSHA to issue citations for “egregious violations” where certain conditions are present: (1) the employer intentionally makes no reasonable effort to eliminate the known violation; (2) the violations result in worker fatalities, a workplace catastrophe (defined as the inpatient hospitalization of three or more employees resulting from a workplace hazard or condition), or a large number of injuries or illnesses; (3) the violations result in a persistently high rate of worker injuries or illnesses; (4) the employer has an extensive history of prior violations; (5) the employer intentionally disregarded its health and safety responsibilities; (6) the employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of its duties; and/or (7) the employer has committed a large number of violations so as to undermine significantly the effectiveness of any safety and health program that may be in place.
SB 646: Limiting Janitorial Employees Subject to a CBA from Filing Suit under PAGA. SB 646 restricts janitorial employees who are represented by a labor organization and perform work under a collective bargaining agreement (“CBA”) from bringing suit under the California Private Attorneys General Act of 2004 (“PAGA”), if the CBA includes certain provisions, including a grievance and binding arbitration procedure to redress violations of the CBA that authorizes the arbitrator to award otherwise available remedies.
SB 657: Permitting Electronic Delivery of Workplace Notices. In addition to physically posting information meant to apprise employees of their rights under applicable statutes, SB 657 permits employers to distribute such information to employees via email. Please note that while this new law permits employers to email notices to their employees, employers must still post physical copies of the notices in the workplace.
SB 727: Extending Direct Contractor Liability. SB 727 imposes joint liability on direct contractors for penalties, liquidated damages, and interest owed by subcontractors to wage claimants. Previously, existing law limited direct contractors’ liability to the amount of any unpaid wages, fringe or other benefit payments, including interest owed.
SB 762: Requiring Arbitration Providers to Send Invoices for Fees and Costs to All Parties and to be Issued as Due Upon Receipt. SB 762 requires arbitration providers to provide invoices for fees and costs to all parties to the arbitration on the same day and by the same means. The bill further requires arbitration providers to issue invoices as due upon receipt, unless the arbitration agreement expressly provides for a different payment schedule.
SB 807: Extending Personnel Records Retention Obligations; Tolling FEHA Claims. SB 807 extends the requirement for employers to retain employee personnel records from 2 to 4 years. The bill also extends the time during which an individual may file a civil action pursuant to the California Fair Employment and Housing Act (“FEHA”) by tolling the period during which the DFEH conducts an investigation. SB 807 also extends the DFEH’s time to investigate and issue right-to-sue notices for group or class complaints to 2 years.
Please contact us if you have any questions or would like a more detailed description of any of these new laws.