As the legislative term came to an end in California, several employment-related bills were enacted.
Below are summaries of some of the new laws:
- Wage theft. Gov. Gavin Newsom signed Assembly Bill 1003 on Sept. 27, amending the Penal Code to establish criminal penalties for grand theft for an employer’s intentional theft of wages, payments or gratuities greater than $950 from any one employee or $2,350 in the aggregate from two or more employees in a consecutive 12-month period. Independent contractors are included within the meaning of an employee. Grand theft can result in county jail time as well as fines.
- CFRA leave. This new law adds leave to care for a parent-in-law to the list of permissible reasons to take family care and medical leave under the California Family Rights Act (CFRA), for up to 12 weeks of job-protected time off. In addition, pursuant to AB 1033, for employers with between five and 19 employees, the Department of Fair Employment and Housing (DFEH) will notify employees who request an immediate right-to-sue letter alleging CFRA violations of the requirement for mediation. The bill takes effect Jan. 1, 2022.
- Remote notice. Taking effect Jan. 1, 2022, Senate Bill 657 provides that “in any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached.” An employer’s obligation to physically display the required posting remains in place, however.
- Warehouse quotas. In what Gov. Newsom touted as “nation-leading transparency measures,” AB 701 mandates that employers provide production quota descriptions to their workers and prohibits the use of algorithms. The new law requires employers to provide nonexempt employees who work at a warehouse distribution center with a written description of each quota to which the employee is subject, including the quantified number of tasks to be performed and any potential adverse employment action that could result from the failure to meet the quota. The legislation also provides that employees are not required to meet a quota that would prevent compliance with meal or rest periods, the use of bathroom facilities or occupational health and safety laws. Employers are prohibited from taking adverse action against an employee for failure to meet an undisclosed quota.
- Record retention. AB 807 made tweaks to the DFEH’s procedural rights and expanded employers’ record retention requirements. Beginning Jan. 1, 2022, employers are now required to retain personnel records for applications and employees for four years from the date the records were created or the date the employment action was taken. As for DFEH, the changes affect when and how the agency can appeal adverse superior court decisions.
- Delivery tips. Amending the Fair Food Delivery Act of 2020, AB 286 regulates how a food delivery platform charges its customers (prohibiting the charge of a higher price than that posted at the time of order) and bans platforms from retaining any portion of tips. The bill, set to take effect Jan. 1, 2022, requires that the entirety of a tip or gratuity must be paid to the person delivering the food or to the food facility. A “food delivery platform” is defined as an “online business that acts as an intermediary between consumers and multiple food facilities … to submit food orders and arrange for the delivery of the order.”
- AB 5 extended. Adding to the exemptions found in AB 5, Gov. Newsom signed AB 1506, which allows newspaper distributors and carriers to be classified as independent contractors and exempt from the ABC test adopted by the California Supreme Court in Dynamex Operations West, Inc. v. Superior Court of Los Angeles. In a separate measure, AB 1561, the exemptions granted to licensed manicurists and construction trucking subcontractors under AB 5 were extended until Jan. 1, 2025.
- Nondisclosure agreements. On October 7, 2021, Governor Gavin Newsom signed SB 331—known as the “Silenced No More Act”—that prohibits nondisclosure provisions in settlement agreements involving workplace harassment or discrimination on any protected bases, not just sex. According to lawmakers, SB 331 is designed to be a further prohibition against employers preventing employees from discussing unlawful acts in the workplace. In this regard, any provision that seeks to prevent or restrict an employee from disclosing factual information on any type of harassment, discrimination or retaliation will be unenforceable. However, SB 331 does not prohibit provisions that prevent the disclosure of the amount paid in settlement of a claim. The new law takes effect on January 1, 2022, and the new prohibitions in SB 331 will only apply to agreements entered into after that date.
To read AB 1003, click here.
To read AB 1033, click here.
To read SB 657, click here.
To read AB 701, click here.
To read AB 807, click here.
To read AB 286, click here.
To read AB 1506, click here.
To read AB 1561, click here.
To read SB 331, click here.
Why it matters: California employers should review the legislation—most of which takes effect on Jan. 1, 2022—to determine whether any of the new laws are applicable to them.