Labor and Employment Law
New California Employment Laws For 2022
By Michael S. Kalt and David J. Duchrow
A new year brings new employment laws in California, and 2022 is no exception, even though there are slightly fewer material changes this year.
II. CRFA EXPANDED TO INCLUDE PARENTS-IN-LAW
A.B. 1033, 2021 Cal Stat. 327 includes “parent-in-law” within the definition of “parent” for purposes of statutorily protected “family care and medical leave.”
It also amends the Department of Fair Employment and Housing (DFEH) small employer mediation pilot program to provide notice of the program; identifies various deadlines; limits the program to only CFRA claims in most cases; and tolls the statute of limitations during mediation.
III. CHANGES TO SETTLEMENT / SEVERANCE AGREEMENTS AND NON-DISPARAGEMENT PROVISIONS
Entitled the “Silenced No More Act,” S.B. 331, 2021 Cal. Stat. 638 requires employment separation agreements to provide a notification that the employee has the right to consult an attorney, and a reasonable period (not less than five business days) in which to do so. Employees may sign the release prior to the expiration of this review period, provided their decision to do so is not induced by either: (a) employer fraud, misrepresentations, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period; or (b) by the employer offering different terms to employees who sign such an agreement before the review period expires.
S.B. 331 further provides that Cal. Gov’t Code §12964.5 of the FEHA does not apply to “negotiated” settlements of underlying claims filed in court, before an administrative agency, in an alternative dispute resolution forum, or through an employer’s internal complaint process.
IV. EXPANDED RECORD RETENTATION REQUIREMENTS
S.B. 807, 2021 Cal. Stat. 278 increases from two to four years the period that employers must retain employment records. Upon the filing of any verified DFEH complaint, the employer must preserve any records and files until the later of: (1) the first date after the period for filing a civil action has expired (i.e., the worker’s statute of limitations has expired); or (2) the first date after the complaint has been fully disposed of and all administrative proceedings, civil actions, appeals, or related proceedings have terminated.
It also makes various changes to the DFEH’s processes for investigating discrimination or class action claims it handles.
V. WRITEEN DISCLOSURE REQUIREMENTS OF "QUOTAS" FOR WAREHOUSE DISTRIBUTION CENTER EMPLOYEES
A.B. 701, 2021 Cal. Stat. 197 requires “warehouse distribution centers” to provide nonexempt employees, upon hire, or within 30 days of this law’s enactment, a written description of each quota applicable to the employee. These notices must identify the quantified number of tasks to be performed, or materials to be produced or handled, within the quantified period and any adverse employment action that could result from not meeting the quota.
Employers cannot maintain a quota that prevents compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws. An employer is also prohibited from taking any adverse action against an employee for failing to meet a quota that precludes compliance with meal or rest periods, health or safety standards, or that was not disclosed. Any time spent by an employee complying with health and safety laws will be considered time on task and productive time under the quota system.
This law creates a rebuttable presumption of retaliation for any adverse employment action taken within 90 days of an employee: (a) making the first request in a calendar year for the quota or personal work speed data discussed above; or (b) making a complaint related to a quota alleging a violation of these provisions to the Labor Commissioner, any local or state agency, or the employer.
Upon receiving a complaint, a state or local government entity may request or subpoena records regarding these quotas and employee work speed data. Current or former employees may also bring actions for injunctive relief to obtain compliance with these requirements and, if successful, recover costs and attorneys’ fees. If employees allege the applicable quota precluded compliance with Cal/OSHA regulations, they may seek injunctive relief limited to suspension of the quota and any adverse action resulting from the quota’s enforcement. For any potential PAGA actions, the employer would have the right to cure alleged violations.
VI. ELECTRONIC DOCUMENTS FOR TELECOMMUTING EMPLOYEES
Various California Labor Code provisions require employers to post notices in conspicuous places at the physical workplace. Along with physical postings, S.B. 657, 2021 Cal. Stat. 109 allows employers to also distribute these notices by email with the document(s) attached.
VII. CLARIFICATIONS REGARDING COVID-19 NOTICES AND REPORTING
This clean-up law amends COVID-19 reporting requirements to provide statutory consistency. A.B. 654, 2021 Cal. Stat. 522 clarifies the types of required employer notices that must be provided to “employees who were on the premises at the same worksite as the qualifying individual within the infectious period.”
This new law limits written notice to representatives of qualifying individuals and employees “who had close contact” with these qualifying individuals.
A.B. 654 amends the definition of “worksite” to provide that it also does not apply to locations where employees “worked by themselves without exposure to other employees,” or to workers’ “residence or alternative work location[s]” chosen by workers when working remotely.
It clarifies that employers must provide a COVID-19 outbreak notice to the local public health agency within 48 hours or one business day, whichever is later.
This new law also expands employers exempt from the COVID-19 outbreak reporting requirement to various licensed facilities, including community clinics, adult day health centers, community care facilities, and childcare facilities.
This urgency statute is immediately effective but will be repealed on January 1, 2023.
VIII. REHIRE RIGHTS IN CERTAIN INDUSTRIES FOR EMPLOYEES LAID OFF DUE TO COVID-19 IMPACTS
Enacted on an urgency basis in April 2021, S.B. 93, 2021 Cal. Stat. 16 took effect immediately, and created rehire rights for employees in the hospitality and business service industries (i.e., for “enterprises” as defined in the new law) who had been laid off for reasons related to the COVID-19 pandemic. Although presumably related to the COVID-19 pandemic, it will remain in effect until it automatically expires on December 31, 2024.
The new statute also enacted new record retention requirements related to these recall rights, provided retaliation protections, and enforcement by Division of Labor Standards Enforcement (DLSE). It also specifically stated that it does not preempt local government agencies from enacting similar recall protections, which a number have done. Since the law’s enactment, the DLSE has issued FAQs on the topic.
IX. WAGE DEPRIVATION AS "GRAND THEFT"
A.B. 1003, 2021 Cal. Stat. 325 adds new Cal. Pen. Code § 487m, providing that the intentional theft of wages (including gratuities) in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees in any consecutive 12-month period, may be punished as grand theft. Independent contractors are included as “employee,” and hiring entities of independent contractors are included as “employer.”
Wages, benefits, or other compensation that are the subject of a prosecution may be recovered as restitution under the California Penal Code. Employees and the Labor Commissioner may file a civil action to recover California Labor Code remedies for acts prohibited by this new section.
X. LABOR COMMISSIONER LIENS ON REAL PROPERTY
While California law presently authorizes the Labor Commissioner to obtain a lien on real property owned by the debtor/employer to help recover amounts owed in favor of an employee, S.B. 572, 2021 Cal. Stat. 335, authorizes the Labor Commissioner to obtain a real property lien to secure amounts due to the Commissioner under any final citation, hearing, or decision. This lien would exist for up to ten years.
XI. PHASEOUT OF THE SUB-MINIMUM WAGE FOR EMPLOYEES WITH DISABILITIES
S.B. 639, 2021 Cal. Stat. 339 generally phases out the current California exemption allowing employers to pay a subminimum wage to employees with physical or mental disabilities. Beginning January 1, 2022, California will preclude any new special licenses from being issued to authorize the payment of lower wages. Beginning on the later of either January 1, 2025, or when the state’s multiyear phaseout plan is released, California will prohibit employers from paying employees with disabilities less than the higher of the state or applicable local minimum wage.
XII. ADDITIONAL WAGE AND HOUR PROTECTIONS IN THE GARMENT MANUFACTURING INDUSTRY
S.B. 62, 2021 Cal. Stat. 329 enacts new protections for garment workers. It prohibits employees engaged in garment manufacturing from being paid by the piece or unit, or by a piece-rate, except in certain specified circumstances. It also imposes statutory damages of $200 per employee payable to the employee for each pay period in which each employee is paid by the piece-rate.
The new law additionally expands the liability throughout the garment industry supply chain for wage and hour violations.
The statute also expands the period that garment manufacturers must retain certain business records from three years to four years. It further creates certain rebuttable presumptions in the employee’s favor for claims filed with the Labor Commissioner.
XIII. EXPANDED JOINT AND SEVERAL LIABILITY FOR CUSTOMERS OF PORT DRAYAGE DRIVERS
S.B. 338, 2021 Cal. Stat. 333 addresses concerns that “port drayage carriers” are continuing to skirt enforcement measures, imposing joint and several liability on businesses that hire port drayage carriers. It expands a customer’s joint and several liability to the state for port drayage services obtained after the date the motor carrier appeared on the state’s prior offender list. It adds potential responsibility and liability to include a port drayage motor carrier’s employment tax assessments and failure to comply with health and safety laws.
This law also enacts new procedures related to how a motor carrier can be removed from the DLSE’s offender list.
XIV. EXPANDED DIRECT CONTRACTOR LIABILITY FOR SUBCONTRACTOR WAGE AND HOUR VIOLATIONS
S.B. 727, 2021 Cal. Stat. 338 expands direct contractor joint liability to include penalties and liquidated damages under specified circumstances for covered construction contracts entered into on or after January 1, 2022.
XV. INCREASED CAL/OSHA ENFORCEMENT OF SAFETY ISSUES
S.B. 606, 2021 Cal. Stat. 336 expands Cal/OSHA’s enforcement power that will likely continue well beyond the pandemic. First, it authorizes Cal/OSHA to issue a citation to an “egregious employer” for each willful violation, with each employee exposed to that violation to be considered a separate violation for fines and penalties.
Second, regarding employers with separate places of employment, this law creates a rebuttable presumption the employer has committed an enterprise-wide violation if either of the following are true: (1) the employer has a written policy or procedure (except as specified) that violates Cal. Health & Saf. Code § 25910 or any standard, rule, order or regulation; or (2) Cal/OSHA has evidence of a pattern or practice of the same violation or violations at more than one of the employer’s locations. If the employer fails to rebut this presumption, Cal/OSHA may issue an enterprise-wide citation requiring enterprise-wide abatement based upon that written policy or procedure.
XVI. AGRICULTURAL WORKER PROTECTIONS FOR WILDFIRE SMOKE
A.B. 73, 2021 Cal. Stat. 322 includes agricultural workers within the definition of essential workers for purposes of accessing the State Department of Public Health’s stockpile of personal protective equipment in the event of health emergencies such as wildfires. It also requires the agency to review and update its wildfire smoke protection training and post it on its website. The employer training of its agricultural employees must be in a language and manner readily understandable by these employees, considering their ethnic and cultural backgrounds and education levels, including potentially using pictograms as needed.
Michael S. Kalt is a partner at Wilson Turner Kosmo LLP in San Diego. He represents employers against discrimination, harassment, retaliation, and wage and hour claims. David J. Duchrow is a mediator and attorney in the Law Office of David J. Duchrow in Los Angeles. He represents employees in class action, union, and public sector, and related matters.