California’s New Labor Laws in 2022 Affecting Employers and Employees

California employers entering the new year will face new labor and employment laws they must recognize and comply with. To assist with this process, Thakur Law Firm offers the following summary of legislative actions affecting employers and employees in 2022:

EMPLOYMENT AGREEMENTS

On October 7, 2021, Governor Gavin Newsom approved Senate Bill ("SB") 331, also known as the "Silenced No More Act." The law sets new restrictions on certain employment agreements such as severance agreements, settlement agreements, or a release of claims.

SB 331 amends the California Code of Civil Procedure Section 1001 and further limits the use of non-disclosure agreements and settlement agreement terms when settling legal employment claims that involve harassment, retaliation, or discrimination. Previously, California's restrictions were limited to only sex-related claims. SB 331 expands these prohibitions to include workplace harassment or discrimination on any characteristic protected under the Fair Employment and Housing Act, not just based on sex.

For separation and severance agreements, SB 331 requires employers to notify employees that they have at least five days in which to consider the agreement’s terms for separation and severance and separation agreements. If any such agreements contain terms guaranteeing non-disparagement, or other terms restricting an employee's ability to disclose information on workplace conditions, it also must include language regarding an employee's right to disclose information about unlawful acts in the workplace.

EXPANSION OF CALIFORNIA FAMILY RIGHTS ACT (CFRA)

Assembly Bill (“AB”) 1033 expands the California Family Rights Act ("CFRA") to small employers with 5 to 19 employees. The new law also expands the categories of “designated individuals.” As such, employees may take time off to include a "parent-in-law” who is suffering from serious health conditions. Also, employees do not need to name the designated person before leave is granted, and an employee can designate a different designated person every 12 months.

COVID-19

Throughout 2021, the legislature passed several laws addressing COVID-19 in the workplace which are worth revisiting as the year ends. On October 5, 2021, AB 654 was passed and went into effect expanding COVID-19 notice requirements for employers. The law now requires employers to "notify [in writing] 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[,]” within one business day of notice of potential exposure. The notice must include the following information: (1) any applicable benefits (e.g., workers’ compensation, sick leave, etc.) and (2) details of a cleaning and disinfection plan that the employer has implemented.

Under the terms of SB 336, which went into effect immediately upon being signed on October 4, 2021, whenever the California Department of Public Health (“CDPH”) or other local health officer issues a mandatory order or guidance related to COVID-19, such health officer must publish the order or guidance on their website along with the date that such order or guidance will take effect. Employers are best advised to monitor both state and their local health department websites to stay abreast of the most up-to-date changes in the law related to COVID-19 and the workplace.

WORKPLACE SAFETY

SB 606, signed into law on September 27, 2021, expands the Cal/OSHA enforcement powers and establishes a rebuttable presumption that employers with multiple worksites have made enterprise-wide workplace safety violations in certain circumstances. In essence, SB 606 presumes that a violation in one of the employer's locations is evidence of a violation at another location and places the burden onto the employer to prove otherwise.

The new law's provision regarding "enterprise-wide" citations is primarily expected to affect construction industry employers with multiple worksites and large manufacturers that have multiple establishments within the state.

WAGE AND HOUR

Intentional Wage Theft

AB 1003 makes the intentional theft of wages, including gratuities, greater than $950.00 from any one employee, or $2,350.00 in the aggregate from two or more employees, by an employer in a consecutive 12-month period punishable as grand theft. AB 1003 also allows any wages, gratuities, benefits, or other compensation that is subject to prosecution under these provisions to be recovered as restitution. Under this law, independent contractors are included within the meaning of the term "employee."

Wage Liens

Pursuant to SB 572, which addresses the enforcement of wage liens against employers, the Labor Code now allows the State Labor Commissioner to create, as an alternative to a judgment lien, a lien against the real property of the employer to secure any amounts due to the Labor Commissioner under any final citation, finding, or decision against the employer.

Industry-Specific Laws

As part of the new employment laws set to go into effect in 2022, several such laws are expected to target various specific industries. The following industries are among the ones set to be specifically addressed by the new labor laws:

Warehouse Distribution Centers

AB 701 is a new law directed toward warehouse distribution centers requiring them to disclose quotas for nonexempt employees. Warehouses subjected to AB 701 are those with 100 or more employees at one warehouse location or 1,000 or more employees total in multiple warehouses throughout the state.

This law requires such warehouses to provide employees, subject to a quota requirement, a written description such as explaining their tasks and products. Employers who fail to abide by AB 701 may not take adverse action against employees who fail to meet undisclosed quotas or quotas that do comply with other state laws.

Garment Manufacturers and “Brand Guarantors”

SB 62 is a new law directed toward Garment Manufacturers and Brand Guarantors who contract with third parties for the performance of garment manufacturing to be jointly and severally liable with the manufacturers or contractors for any wage violations committed towards employees in the supply chain of such garments.

For purposes of accomplishing such shared liability, SB 62 essentially expands the definition of garment manufacturing to include not only the actual manufactures but also includes all such parties whom the manufacturer contracts with to accomplish such garment manufacturing.

Additionally, SB 62 also prohibits manufacturers from engaging in the practice of piece-rate compensation for their employees with the exception of employees who are employed at worksites covered by a valid collective bargaining agreement. SB 62 imposes statutory damages of $200.00 per employee that will be payable to the employee for each pay period in which the employee is compensated according to piece-rate compensation practices in violation of this new law.

CONCLUSION

In light of all new laws and the increasingly stringent requirements for compliance, employers should review and update their policies and procedures and make their employees aware of any changes. The skilled and experienced employment law attorneys at Thakur Law Firm are ready to assist you with any and all questions regarding new state and federal laws affecting the workplace in 2022.