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Legislative Update – March 2023

On Behalf of | Mar 27, 2023 | Employment Law, New Law

California’s legislative session is in full-swing with a variety of bills introduced that could impact compliance and notice requirements for employers.  A selection of these bills is below.  It is early in the life span of these bills which an and often do change during the legislative process, so it is difficult to know which will ultimately survive committee, make it to a vote of the Assembly/Senate, and ultimately receive the Governor’s signature.  Some of these bills have been in the works for years while others are novel.  In any case, following these bills is important as the compliance timeframes at the end of the year may be short and if a particular bill or bills can have a negative impact on your business, you may want to let your representatives know such.

U.S. Congress

Workforce Mobility Act of 2023 (Proposed)While California law already heavily curtails non-compete agreements, a bill has been introduced that would create federal law prohibiting use of non-compete agreements in certain circumstances.  The Federal Trade Commission announced last month that it is seeking to create a new rule which would treat the use of noncompete clauses as an unfair business practice.

Case Law Update

Camp v. Home Depot U.S.A., Inc.After an unfavorable ruling from California’s 6th District Court of Appeal, a case that could impact the practice of rounding time entries in California has been granted review before California’s Supreme Court.  Employers should anticipate that time-rounding practices will be heavily scrutinized if not outright forbidden considering the Court’s decision in Donahue v. AMN Services, Inc.  An adverse ruling in this case has the potential to create liability for the past four years as it would likely be an “interpretation” of existing law as opposed to a new law. Time rounding is a topic employers should carefully consult with counsel about.

State Employment Law Update

Senate Bill 616 (Proposed)Expansion of Required Paid Sick Leave – This bill would expand the requirements for the required accrual or front-loaded sick leave policy.  This expansion would increase the sick leave availability from three days (24 hours) to seven days (56 hours).  This would impact accrual schedules for employers who have existing accrual schedules.  If made law as currently written, this legislation would take effect January 1, 2024.

Senate Bill 592 (Proposed)Protection For Reliance on DLSE Guidance –  Many are familiar with the Labor Commissioner’s Opinion Letters that provide guidance concerning California wage and hour law.  This bill proposes that if a person (namely, an employer) relies on and conforms to a published opinion letter or enforcement policy of the Division of Labor Standards Enforcement, that person will not be subject to “costs or subject to punishment,” except for restitution of unpaid wages, for a violation of a statute or regulation.  While there are additional procedural steps to assert this defense to certain damages, this proposal offers some comfort to employers on ever-shifting ground.

Senate Bill 497 (Proposed)Rebuttable Presumption of Retaliation and Increased Penalties for Retaliation – This bill would establish a rebuttable presumption with respect to retaliation if the employer engages in any prohibited activity within 90 days of an employee’s protected activity.  In addition to the existing remedies, the legislation would provide a civil penalty of $10,000 per employee for violations of the section.

Senate Bill 399 (Proposed)Prohibiting Employers from Requiring Employees to Attend Meetings Relating to Employer’s Opinion on Religious, Political Matters, and Other Topics – This bill would prohibit a variety of employer-required meetings on the subject of “religious matters, political matters, or rights guaranteed by the [U.S. and California Constitution’s provisions relating to freedom of speech, freedom of association, and freedom of religion].”  Specifically this bill appears to be aimed at employer meetings and communications with respect to defined “political matters,” to include, “elections for political office, political parties, legislation, regulation, and the decision to join or support any political party or political or labor organization.”

Assembly Bill 524 (Proposed)Making “Family Caregiver Status” Part of FEHA – This legislation would add, “family caregiver status,” to the protected categories under the Fair Employment and Housing Act. “Family caregiver status” is defined as a person who is a contributor to the care of one or more family members, with “family members” being broadly defined to include a “spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or any other individual related by blood or whose association with the employee is the equivalent of a family relationship.”  Put another way, it would be impermissible to consider how much an employee cares for a “family member,” when making employment related decisions.

Assembly Bill 636 (Proposed)Adding Hiring Notice Requirements Relating to H-2A Employees – This legislation would provide that additional notice under Labor Code 2810.5, in Spanish, must be given to H-2A employees on the subject of California wage and hour laws.  The Labor Commissioner is charged with creating a template for the required notice.

Assembly Bill 521 (Proposed)Requiring Cal/OSHA to Create Regulations on Restrooms – This bill would mandate that Cal/OSHA create regulations requiring at least one women’s designated restroom for jobsites with two or more required water closets.

Senate Bill 525 (Proposed)Establishing a Separate Minimum Wage for Health Care Workers – This bill would establish a separate minimum wage specifically for health care workers of a variety of defined “covered health care facilities.” If passed as currently proposed, the bill would make the applicable minimum wage $25 per hour as of January 1, 2024.

Senate Bill 461 (Proposed)Amending the FEHA Definition of “Religious or Cultural Observance” – This legislation would amend the Fair Employment and Housing Act’s definition of “religious observance,” to include, “religious or cultural observance” which would mean the observance of a holiday or ceremony of an individual’s religion, culture, or heritage.  While state employees are the beneficiaries of other proposed changes, this change may impact the accommodation of religious holidays by private employers.

Senate Bill 375 (Proposed)Providing Tax Credits for COVID-19 Compliance – This legislation would provide a limited, per-employee tax credit relating to the actual costs of COVID-19 regulatory compliance.

Senate Bill 553 (Proposed)Cal/OSHA to Adopt Workplace Violence Prevention Standard – Cal/OSHA would be required to adopt regulations relating to the prevention of workplace violence to be incorporated into the standard injury and illness prevention plan requirements.

For advice on compliance with future laws and regulations impacting your business, please contact the attorneys at Sagaser, Watkins & Wieland, PC.