September 30, 2022 marked the last day Governor Newsom had to sign or veto new bills passed by the Legislature to end the 2022 legislative year. The Governor signed nearly every substantial employment law related bill placed on his desk. This Friday’s Five (I know – it is more than five bills, but you have to work with me, it is California) recaps the major bills signed by the Governor that California employers will need to learn about in 2023 and going forward.
AB 257: Fast Food Accountability and Standards Recovery Act or FAST Recovery Act
The Governor previously signed this bill, as we have already covered in a prior article. The link to our prior article is here: Governor Newsom Signs AB 257 That Establishes Council To Further Regulate Fast Food Restaurants | California Employment Law Report
AB 152: COVID-19 Relief /Supplemental Paid Sick Leave
AB 152 extends the obligation for California employers to provide supplemental paid sick leave until December 31, 2022 (the prior law expired on September 30, 2022). However, the new law provides some employer friendly modifications to the current obligations for California employers. For example, AB 152 authorizes the employer to require, if the COVID-19 test is positive, that the employee submit to a second test within no less than 24 hours. The employer must provide both tests at no cost to the employee. This bill additionally specifies an employer has no obligation to provide additional COVID-19 supplemental paid sick leave if the employee refuses to submit to the COVID-19 tests. Employers may also require employees to submit to another test on or after the fifth day after the first positive test and provide documentation of those results. Lastly, AB 152 creates a grant program to assist qualified small businesses and nonprofits up to $50,000 for reimbursement of Supplemental Paid Sick Leave provided to employees from January 1, 2022, to December 31, 2022. There are several criteria to be eligible for this grant, most easily identifiable are that the employer has between 26 – 49 employees and began operating before June 1, 2021.
Reviewing the obligations under the existing California supplemental paid sick leave was covered in our prior article: Five Reminders of Employers Obligations To Comply With California’s Supplemental COVID-19 Paid Sick Leave Law Through September 30, 2022 | California Employment Law Report
AB 676: Franchises
AB 676 makes various changes to the California Franchise Relations Act and the Franchise Investment Law, and creates new requirements and prohibitions for franchise agreements. The new law clarifies that an offer or sale of a franchise is made in California when the franchise business is intended to be operated in California. Additionally authorizes the commissioner of the Department of Financial Protection and Innovation (DFPI) to summarily issue a stop order denying the effectiveness of or suspending or revoking effectiveness of any registration if the commissioner finds that the franchise agreement contains a provision that is contrary to law.
This bill also requires a prospective franchisee seeking to buy an existing franchise to provide specified information and documentation to the franchisor. The bill would also require the franchisor to notify the prospective franchisee in writing of any additional information or documentation necessary to complete the application, and requires the franchisor to notify the prospective franchisee of the decision to approve or disapprove the application. The bill also specifies that provisions of the bill neither prohibit a franchisor from exercising nor require a franchisor to exercise a contractual right of first refusal to purchase an existing franchise.
AB 1041: Employment: leave
Under the existing law, the California Family Rights Act, an employer with 5 or more employees are not allowed to refuse to grant a request from an employee who meets specified requirements to take up to a total of 12 workweeks in any 12-month period for family care and medical leave.
AB 1041 expands the definition of “designated person” under CA Family Right Act. Accordingly, a “designated person” is any individual related by blood or whose association with the employee is the equivalent of a family relationship. The bill would authorize a designated person to be identified at the time the employee requests the leave. It allows an employer to limit an employee to one designated person per 12-month period.
In addition, under the new law, an employee is defined as an individual who works in California for the same employer for 30 or more days within a year to paid sick days, including the use of paid sick days for diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member. Existing law defines “family member” for this purpose to include individuals who share a prescribed relationship with the employee.
AB 1601: Employment Protections: mass layoff, relocation, or termination of employees: call centers
AB 1601 prohibits a call center employer from ordering the relocation of its call center, unless 60 days before the order takes effect, the employer gives written notice to affected employees, the Employment Development Department (EDD), the local workforce investment board, and the chief elected official of each city and county government within which the termination, relocation, or mass layoff would occur.
Under this bill a “Call Center” is defined as a facility or other operation where employees, as their primary function, receive telephone calls or other electronic communication for the purpose of providing customer service or other related functions. Additionally, Relocation of a Call Center includes when the employer intends to move its call center to a foreign country.
If the employer fails to provide notice regarding a relocation of its call center, the employer will be ineligible to be awarded or have renewed state grants or state-guaranteed loans for 5 years. Such employer would also be ineligible to claim a tax credit for 5 taxable years as of the date that the list is published unless an appropriate agency waives the ineligibility.
Lastly, this bill requires EDD to compile and publish semiannually a list of employers that provided notice to relocate a call center as well as provide workforce services to call center employers and their employees who are laid off as a result of a relocation.
AB 1949: Employees: bereavement leave
AB 1949 grants employees up to five days of bereavement leave under the California Family Rights Act (CFRA). The bill permits employees to take the leave if they have been employed for at least 30 days prior to the leave, and the leave is for the death of a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The leave is unpaid, but the employee must be permitted to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available. Employers may request documentation from the employee within 30 days which could consist of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
AB 2183: Agricultural labor relations: elections
AB 2183 refers to the election by secret ballot process as a polling place election and provides that, as an alternative to a polling place election, a labor organization may be certified as the exclusive bargaining representative of a bargaining unit of agricultural employees through either a labor peace election (also known as a compact) or a non-labor peace election until January 1, 2028.
The bill specifies that every agricultural employer in California shall have the option, on an annual basis, to indicate to the Agricultural Labor Relations Board (ALRB) whether they agree to a labor peace compact. If an agricultural employer does not agree to a labor peace election, then employees may make a choice regarding union representation through a non-labor peace election.
This bill also establishes a schedule for agricultural employers to indicate whether they agree to a “labor peace compact.” A “labor peace compact” is described as an agreement by the employer that includes among other things, an agreement in any written or oral form, at any time during employee hire, rehire, or orientation, or after certain documents regarding organization are filed with the board. The bill would prohibit a labor peace compact from prohibiting an employer from communicating truthful statements to employees regarding workplace policies or benefits, as specified.
Lastly, AB 2183 requires the board to develop an online web-based labor peace election process that will allow employers to indicate their labor peace choice online, and that will allow labor organizations to see whether a specific agricultural employer has agreed to a labor peace election campaign.
AB 2188: Discrimination in employment: use of cannabis
AB 2188 amends Government Code section 12945 to make it illegal for employers to discriminate against employees who use cannabis off the job and away from the workplace. The bill does not create the right for the employee to be impaired while at work, does not apply to the building and construction trades, and does not preempt state or federal laws requiring employees to be tested. The new law becomes effective on January 1, 2024.
As a reminder, in 2016, California passed Proposition 64 legalizing marijuana. Proposition 64 expressly provides that employers may prohibit marijuana in the workplace, and will not be required to accommodate an employee’s use of marijuana. This is also consistent with the California Supreme Court’s holding in Ross v. Ragingwire Telecommunications, Inc. In that case the court examined the conflict between California’s Compassionate Use Act, (which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug) and Federal law (which prohibits the drug’s possession, even by medical users). The court held that the Compassionate Use Act did not intend to address the rights and obligation of employers and employees, and further noted that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.
SB 1044: Employers: emergency condition
SB 1044 prohibits an employer, in the event of an emergency condition, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace within the affected area because the employee has a reasonable belief that the workplace is unsafe. The bill also prohibits an employer from preventing any employee, from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. It also requires an employee to notify the employer of the emergency condition which may prompt the employee to leave or refuse to report to the workplace.
Under this bill “Emergency Condition” means existence of either 1) conditions of disaster or extreme danger to the safety of persons or property at the workplace caused by natural forces or a criminal act; 2) An order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.
SB 1162: Employment: salaries and wages
SB 1162 requires additional information be reported to the state of California on the employer’s pay data report. For example, the bill requires employers to report the median and mean hourly rates for employees. It also requires employers who hire an employee through labor contractors to submit a separate report for those employees.
The bill further requires that employers to provide a pay scale to any current employee for their position currently working upon request. In addition, the bill would require employers with 15 or more employees to include the pay scale for a position in any job posting. Existing law requires employers to provide a pay scale to an applicant upon request.