New Employment Laws and Requirements for 2022
New Employment Laws and Requirements for 2022
While continuing to focus on measures to address the COVID-19 pandemic, the California Legislature passed a number of new laws in 2021 that will affect many California employers. The new laws relate to a wide range of issues that California employers regularly face, including family medical leave, employee separation and settlement agreements, and notice and record-keeping requirements. The following is a list of the key laws passed this year that may have an impact on employer operations, and may require review of employer policies and procedures.
Further Expansion of the California Family Rights Act (AB 1033)
Last year, Senate Bill 1383 expanded the California Family Rights Act (CFRA) to apply to employers with five or more employees. The CFRA requires employers to give 12 weeks of leave per year to eligible employees for the following: (1) birth of a child, adoption of a child or placement of a foster child; (2) care of a spouse, parent or child with a serious health condition; or (3) recovery from an employee’s own serious health conditions. Effective January 1, 2022, Assembly Bill 1033 adds “parents-in-law” to the list of family members for which employees can take leave. AB 1033 also allows leave to care for a “designated person,” which an employee can identify at the time of leave. Employees can identify a different designated person every 12 months.
AB 1033 also creates new procedural requirements relating to the Department of Fair Employment and Housing’s (DFEH) small employer mediation program for employers with 5 to 19 employees. One new requirement is that if either the employer or employee requests mediation, the DFEH must inform the employee in writing that the employee must participate in the small employer mediation program prior to filing a civil action for violation of the CFRA.
The “Silenced No More Act” (SB 331)
In 2018, Senate Bill 820 prohibited confidentiality provisions in settlement agreements for discrimination and harassment claims based on sex. Senate Bill 331, known as the “Silenced No More Act,” extends this prohibition to settlement agreements involving all forms of workplace discrimination and harassment claims. Specifically, SB 331 prohibits employers from implementing non-disclosure and other confidentiality provisions in agreements entered into after January 1, 2022, and which relate to workplace discrimination and harassment claims.
SB 331 also amends the Fair Employment and Housing Act to require any employer who uses a non-disparagement agreement as a condition of employment or in a separation agreement to carve out, with specified language, an employee’s ability to discuss employer conduct that the employee has reason to believe is unlawful. If this carve-out is not made, the agreement or document is unenforceable. SB 331 also makes it an unlawful employment practice for an employer to include in any agreement related to an employee’s separation from employment any provision that prohibits the disclosure of information about unlawful acts in the workplace.
Finally, SB 331 requires that in relation to separation agreements with employees, employers must notify the employee that the employee has a right to consult an attorney and must provide a reasonable time period of not less than five business days to do so. An employee may sign prior to the end of the reasonable time period, provided the employee’s decision is knowing and voluntary and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
Employers entering into separation or settlement agreements with employees will need to ensure their agreements comply with SB 331’s restrictions.
COVID-19 Exposure Notice Requirements (AB 654)
In 2020, the Legislature passed AB 685, which required California employers who received notice of a potential COVID-19 exposure in the workplace to provide notice to employees, and further, if it was aware of an “outbreak” as defined by the State Department of Public Health, the employer was required to notify the local public health agency within 48 hours. AB 654 makes various modifications to these notice requirements.
Under AB 685, employers had to notify “employees who may have been exposed” to a person with COVID-19 in the workplace. AB 654 now requires notice of potential exposure to “all employees, and the employers of subcontracted employees, who were on the premises at the same worksite as the qualifying individual within the infectious period.”
Employers are also required to provide notice of cleaning and disinfecting plans in cases of a worksite exposure. Previously, employers were required to provide notice to all employees. AB 654 now requires employers to notify only those employees, employers of subcontracted employees, and exclusive employee representatives who were on the premises at the same worksite as the qualifying individual within the infectious period of the cleaning and disinfection plans implemented by the employer.
With respect to the occurrence of any COVID-19 outbreak, employers now have the later of 48 hours or one business day to notify the local health agency of an outbreak. AB 654 also exempts from such reporting a number of businesses, including health facilities, adult day health centers, community clinics, and child day care facilities.
AB 654 further provides clarity with respect to telecommuting arrangements by stating that a “worksite” does not include a worker’s personal residence or alternative work location chosen by the worker when working remotely.
Expansion of Cal/OSHA Citation Authority (SB 606)
Senate Bill 606 expands Cal/OSHA’s citation authority by creating new categories of workplace health and safety violations: “enterprise-wide violations” and “egregious violations.”
Enterprise-wide Violations – For employers with multiple worksites, SB 606 authorizes Cal/OSHA to issue an enterprise-wide citation, applying to all work locations in the “enterprise” of the employer. SB 606 creates a rebuttable presumption that a violation is “enterprise-wide” where the employer has a written policy or procedure that violates Cal/OSHA regulations or there is evidence of a pattern or practice of the same violation or violations committed by the employer involving more than one of the employer’s worksites. If an enterprise-wide violation is found, Cal/OSHA may order abatement for the entire enterprise of the employer, including work locations beyond locations where a violation was found.
Egregious Violations – SB 606 also authorizes Cal/OSHA to issue a citation for an egregious violation where an employer has “willfully and egregiously violated an occupational safety or health standard, order, special order, or regulation.” If a violation is found to be egregious, Cal/OSHA can issue a citation to the employer for each instance of an employee being exposed to that violation, instead of for each incident of the violation, which will likely result in an increase in fines and penalties against employers.
Construction Contractor Liability for Wage and Benefit Payments to Subcontractor Employees (SB 727)
In 2016, AB 1701 imposed on prime contractors on private works of construction liability for employee wage, fringe and other benefit payments owed to a wage claimant that is incurred by a subcontractor of any tier acting under, by, or for the contractor. Senate Bill 727 expands this direct contractor liability to include liability for penalties, liquidated damages, and interest owed by the subcontractor.
SB 727 provides a direct contractor a “safe harbor” from imposition of penalties and liquidated damages if the direct contractor had no knowledge of the failure to make the required payment and does each of the following: (1) monitors the payment by the subcontractor of wage, fringe or other benefit payment or contribution by periodic review of the subcontractor’s payroll records, (2) upon becoming aware of a failure to pay amounts owed, diligently takes corrective action to halt or rectify the failure, including retaining sufficient funds due the subcontractor, and (3) prior to making final payment to the subcontractor, obtains an affidavit signed under penalty of perjury from the subcontractor that the subcontractor has paid the wage, fringe or other benefit payments or contributions due for all work.
Employer Record-Keeping Requirements (SB 807)
Senate Bill 807 increases from two years to four years the time employers must maintain and preserve employment applications, and personnel, membership, or employment referral records and files. SB 807 also makes procedural changes to DFEH procedures in relation to enforcement actions for violations of state discrimination and harassment laws, including tolling of the statute of limitations for filing a civil action during investigations and during a mandatory or voluntary dispute resolution proceeding, commencing on the date that DFEH refers a case to its dispute resolution division.
Electronic Distribution of Employee Notices (SB 657)
Senate Bill 657 provides that where employers are required to physically post information in a workplace, the employer may also distribute that information to employees by email with the document or documents attached. Importantly, distribution of information electronically does not change an employer’s continuing obligation to physically display the required posting.
Reminder – Increase in Minimum Wage. Effective on and after January 1, 2022, the state minimum wage increases to $15.00 per hour for employers with 26 or more employees and to $14.00 per hour for employers with 25 or fewer employees. Employers should also continue to monitor local minimum wage requirements as well. These amounts also affect the minimum salary requirements for exempt employees.
If you have any questions regarding any of the foregoing new laws or need assistance with any labor or employee relations matter, please contact Dwayne McKenzie.