Contributors

Christian Scali

Founder and Managing Shareholder

Halbert B. Rasmussen

Shareholder

Eric P. Weiss

Principal

Jasmin B. Bhandari

Principal

Jennifer Woo Burns

Of Counsel

Both the Federal government and California enacted legislation raising the minimum wage for certain workers. California has also passed several bills that protect employees in variety of ways relating to cannabis use, non-compete agreements, workplace safety, right to organize, retaliation, and reproductive rights.

Federal Executive Orders—Federal Minimum Wage

What the law currently requires

The current minimum wage for certain federal contractor employees is $16.20 pursuant to an Executive Orders signed by Presidents Obama and Biden and issued by the federal Department of Labor. The minimum wage requirements apply to employees performing work “on or in connection with” the following types of federal contracts:

• Procurement contracts for construction covered by the Davis-Bacon Act.
• Service contracts covered by the Service Contract Act.
• Concessions contracts, including any concessions contracts excluded from the Service Contract Act by regulations at 29 CFR 4.133(b).
• Contracts in connection with federal property or lands and related to offering services for federal employees, their dependents or the general public.

How the order changes the law

Effective January 1, 2024, the minimum wage will be raised to $17.20 per hour for the same classes of employees.

AB 2188—Discrimination in employment: Use of cannabis

What the law currently requires

Existing law, the California Fair Employment and Housing Act (“FEHA”), protects and safeguards the right and opportunity of all persons to seek, obtain, and hold employment without discrimination, abridgment, or harassment on account of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status. The act prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices.

How this bill changes the law

AB 2188, on and after January 1, 2024, would also make it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, except for preemployment drug screening, as specified, or upon an employer-required drug screening test that has found the person to have nonpsychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.

The bill would exempt certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background investigation or clearance, as specified. The bill would specify that the bill does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

AB 1288—Fast food restaurant industry: Fast Food Council: health, safety, employment, and minimum wage

What the law currently requires

Existing law, which is suspended pursuant to a referendum petition, establishes, until January 1, 2029, the Fast Food Council (“Council”) within the Department of Industrial Relations and prescribes its powers. Existing law, among other things, prescribes the purposes, duties, and limitations of the council, including a requirement that the council promulgate minimum fast food restaurant employment standards. Existing law sets standards for any minimum wage the council establishes.

How this bill changes the law

This bill will set the hourly minimum wage for fast food restaurant employees shall at twenty dollars ($20) per hour, effective April 1, 2024. Thereafter, the Council may establish minimum wages for fast food restaurant employees that take effect on an annual basis, beginning on January 1, 2025. The hourly minimum wage established by the Council may increase on an annual basis by no more than the lesser of the following, rounded to the nearest ten cents ($0.10): (1) 3.5 percent and (2) The rate of change in the averages of the most recent July 1 to June 30, inclusive, period over the preceding July 1 to June 30, inclusive, period for the United States Bureau of Labor Statistics nonseasonally adjusted United States Consumer Price Index for Urban Wage Earners and Clerical Workers (U.S. CPI-W).

This bill would also deem the Council a governmental agency for purposes of the above-described prohibition. The bill would additionally prohibit a fast food restaurant operator from discharging or in any manner discriminating or retaliating against any employee due to the employee’s participation in or testimony to any proceeding convened by the Council.

This bill would prohibit any city, county, or city and county from enacting or enforcing any ordinance or regulation applicable to fast food restaurant employees that sets the amount of wages or salaries for fast food restaurant employees, except as provided. By imposing additional requirements on local agencies, the bill would impose a state-mandated local program.

AB 1766—Committee on Labor and Employment. Division of Occupational Safety and Health: regulations

What the law currently requires

1. Existing law grants the Division of Occupational Safety and Health (“Division”), which is within the Department of Industrial Relations, jurisdiction over all employment and places of employment, with the power necessary to enforce and administer all occupational health and safety laws and standards, including standards for the operation of passenger tramways. Under existing law, the Occupational Safety and Health Standards Board, an independent entity within the department, has the exclusive authority to adopt occupational safety and health standards within the state.
2. Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, that generally requires employers to secure the payment of workers’ compensation for injuries incurred by their employees that arise out of, or in the course of, employment. Existing law defines “employee” for those purposes.
3. Existing federal law, the Workforce Innovation and Opportunity Act of 2014, repeals and supersedes the federal Workforce Investment Act of 1998 and provides for the establishment of a state workforce development board to develop strategies to support the use of career pathways for the purpose of providing individuals with workforce investment activities, education, and support services necessary for them to enter the workforce or retain employment.
4. Existing law contains various programs for job training and employment investment. Conforming to the federal act, existing state law, the California Workforce Innovation and Opportunity Act, renames the California Workforce Investment Board the California Workforce Development Board and renames local workforce investment boards as local workforce development boards.
5. Existing law establishes the Employment Training Panel within the Employment Development Department and prescribes the functions and duties of the panel with respect to certain employment training programs.
6. Existing law relating to the panel references the superseded federal act and refers to the state and local boards by their former names.
7. Existing law declares the intent of the Legislature that programs developed pursuant to these provisions do not replace, parallel, supplant, compete with, or duplicate in any way already existing approved apprenticeship programs.

How this bill changes the law

1. This bill would require the Division to formulate and propose rules and regulations for adoption by the Occupational Safety and Health Standards Board for the safe design, manufacture, installation, repair, maintenance, use, operation, and inspection of all passenger tramways as necessary to protect the public. The bill would require the division to adopt all other rules and regulations necessary for the administration and enforcement of these provisions on passenger tramways.
2. This bill would correct an obsolete cross-reference within the provision that defines “employee.”
3. This bill would delete the above-described intent provision. The bill would update statutory references in provisions relating to the panel to refer to the federal Workforce Innovation and Opportunity Act of 2014, the California Workforce Development Board, and local workforce development boards.

AB 1766 is a “clean-up bill” to update certain terminology in the Labor Code and Unemployment Insurance Code. According to the author, “This measure is primarily to clean-up language in state law relating to workforce development. In addition, at the request of Labor Agency, the bill gives explicit authority to Cal/OSHA to update its regulations for passenger tramway safety (commonly known as ski lifts). This provision mirrors language already in the Labor Code which permits rulemaking for elevators, temporary amusement rides, and permanent amusement rides.”

SB 699—Contracts in restraint of trade (non-competes in employment contracts)

What the law currently requires

Existing law regulates business activities in order to maintain competition. This includes non-compete clauses in employment contracts. Existing law voids contractual provisions by which a person is restrained from engaging in a lawful profession, trade, or business of any kind, except as otherwise provided.

How this bill changes the law

New law adds section 16600.5 to the Business & Professions Code which will provide:

1. Any contract that is void under this chapter is unenforceable regardless of where and when the contract was signed.
2. An employer or former employer shall not attempt to enforce a contract that is void under this chapter regardless of whether the contract was signed and the employment was maintained outside of California.
3. An employer shall not enter into a contract with an employee or prospective employee that includes a provision that is void under this chapter.
4. An employer that enters into a contract that is void under this chapter or attempts to enforce a contract that is void under this chapter commits a civil violation.
   1. An employee, former employee, or prospective employee may bring a private action to enforce this chapter for injunctive relief or the recovery of actual damages, or both.
   2. In addition to the remedies described in paragraph (1), a prevailing employee, former employee, or prospective employee in an action based on a violation of this chapter shall be entitled to recover reasonable attorney’s fees and costs.

In essence, SB 699 extends the reach of California’s restriction on non-competes to contracts signed out of state.

SB 699 creates a private right of action for employees whose agreements include restrictive covenants and provides for attorney fees for any current, former, or even prospective employee who successfully brings suit against an employer’s use of those restrictive covenants.

SB 699 also states that an employer whose contracts include restrictive covenants has committed a “civil violation.”

AB 1076—Contracts in restraint of trade: noncompete agreements

What the law currently requires

Existing law voids contractual provisions by which a person is restrained from engaging in a lawful profession, trade, or business of any kind, except as otherwise provided. Existing case law, as established in the case of Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937, interprets this provision to void noncompete agreements in an employment context and noncompete clauses within employment contracts, even if that agreement is narrowly tailored, unless an exception applies.

Existing law, the Unfair Competition Law (UCL), makes various practices unlawful and makes a person who engages in unfair competition liable for a civil penalty, as specified. Existing law provides for enforcement of these provisions exclusively by the Attorney General or other specified local agency attorneys.

How the bill changes the law

This bill would codify existing case law by specifying that the statutory provision voiding noncompete contracts is to be broadly construed to void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored, that does not satisfy specified exceptions. The bill would state that this provision is declaratory of existing law.The bill would make these provisions applicable to contracts where the person being restrained is not a party to the contract.

This bill would also make it unlawful to include a noncompete clause in an employment contract, or to require an employee to enter a noncompete agreement, that does not satisfy specified exceptions. The bill would require employers to notify current and former employees in writing by February 14, 2024, that the noncompete clause or agreement is void, as specified. This bill would make a violation of these provisions an act of unfair competition pursuant to the UCL.

AB 1076 follows the passage of another bill (SB 699) reiterating California’s ban on restrictive covenants which provides that the ban extends to agreements regardless of the state in which it was signed and or the state in which the employee worked. SB 699 also creates a private right of action.

Under AB 1076, employers must notify current employees and former employees (employed after January 1, 2022), that any noncompete agreement or noncompete clause contained within an agreement the current or former employee signed is void unless the agreement or clause falls within one of the statutory exceptions set forth in Business and Professions Code section 16600, et seq., such as the sale or dissolution of a business. Such notice must be in the form of a written individualized communication to the employee or former employee, and shall be delivered to the last known address and the email address of the employee or former employee.

AB 1076—Workplace Readiness Week: work permits

What the law currently requires

Existing law deems the month of May to be Labor History Month throughout the public schools, and encourages school districts to commemorate that month with appropriate educational exercises that make pupils aware of the role the labor movement has played in shaping California and the United States.

Existing law authorizes specific school administrators to issue a work permit to pupils subject to specific requirements, including requiring certain information to be included on the work permit.

How this bill changes the law

This bill would require the week of each year that includes April 28 to be known as “Workplace Readiness Week.” The bill would require all public high schools, including charter schools, to annually observe that week by providing information to pupils on their rights as workers, and would specify the topics to be covered. The bill would require the observances to be integrated into the regular school program in grades 11 and 12, consistent with the history-social science framework. By imposing additional duties on public school officials, the bill would impose a state-mandated local program. The bill would require the Superintendent of Public Instruction to annually send a written notice to every public high school, including charter schools, with certain information relating to Workplace Readiness Week, as provided.

This bill would require, beginning August 1, 2024, any minor seeking the signature of a verifying authority on a Statement of Intent to Employ a Minor and Request for a Work Permit-Certificate of Age to be issued, before or at the time of receiving the signature of the verifying authority, a document clearly explaining basic labor rights extended to workers, as provided.

The bill would encourage the University of California Berkeley Center for Labor Research and Education to produce, with input from bona fide labor organizations, a draft template for the document to be provided to minors, including translations into languages other than English, as specified. The bill would require the document to express those labor rights in plain, natural terminology easily understood by the pupil. The bill would require the document, in English, to be in a physical form and include a Uniform Resource Locator for, and a quick response code linked to, an internet website with electronic versions of the document, including any translated versions of the document, produced by the University of California Berkeley Center for Labor Research and Education. To the extent these requirements would impose additional duties on public school officials, the bill would impose a state-mandated local program.

AB 1355—Employment: benefits: electronic notice and documents

What the law currently requires

The Personal Income Tax Law allows various credits against the taxes imposed by that law, including certain credits that are allowed in modified conformity to credits allowed by federal income tax laws. Federal income tax laws allow a refundable earned income tax credit for certain low-income individuals who have earned income and who meet certain other requirements. The Personal Income Tax Law, in modified conformity with federal income tax laws, allows an earned income credit against personal income tax, and a payment in excess of that credit amount, to an eligible individual that is equal to that portion of the earned income tax credit allowed by federal law as determined by the earned income tax credit adjustment factor as set forth in the annual Budget Act.

1. Existing law, the Earned Income Tax Credit Information Act, requires an employer, as defined, to notify all employees that they may be eligible for specified income tax filing assistance programs and state and federal antipoverty tax credits, including the federal and California earned income tax credits by handing specified documents directly to the employee or mailing the specified documents to the employee’s last known address twice annually, as provided. Existing law authorizes the 2nd notification to be sent electronically.
2. Existing law prescribes a system for the payment of benefits to unemployed individuals who meet specified eligibility criteria. Existing law requires an employer to supply, pursuant to authorized regulations, each individual at the time they become unemployed with copies of printed statements or materials relating to claims for benefits. Existing law provides that the failure of an employer to comply with these provisions is a misdemeanor.

How this bill changes the law

1. This bill, until January 1, 2029, would authorize the employer to provide the first above-described notification via email to an employee’s email account instead of directly handing or mailing the document to the employee if the employee affirmatively, and in writing or by electronic acknowledgment, opts into receipt of electronic statements or materials. The bill would prohibit the employer from discharging or taking other adverse action against an employee who does not opt into receipt of electronic statements or materials.
2. This bill, until January 1, 2029, would authorize the employer to provide the above-described notification concerning statements and materials regarding claims for benefits via email to an employee’s email account, if the employee affirmatively, and in writing, by email, or by some form of electronic acknowledgment, opts into receipt of electronic statements or materials, as prescribed. The bill would prohibit the employer from discharging or taking other adverse action against an employee who does not opt into receipt of electronic statements or materials.

SB 428—Temporary restraining orders and protective orders: employee harassment

What the law currently requires

California law currently enables an employer to seek a temporary restraining order to protect employees from a person who has engaged in violence or has made a credible threat of violence. Pursuant to Code of Civil Procedure Section 527.8, an employer may file a petition for a temporary restraining order to protect employees and their immediate family members.

How this bill changes the law

SB 428 expands the law to include not only violence and threats of violence, but also harassment. The law defines harassment as follows:

“Harassment” is a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.

Supporters of SB 428 pointed out that employers should not have to wait for conduct to escalate to violence before seeking court intervention.

SB 553—Occupational safety: workplace violence: restraining orders and workplace violence prevention plan

What the law currently requires

Existing law, the California Occupational Safety and Health Act of 1973, imposes safety responsibilities on employers and employees, including the requirement that an employer establish, implement, and maintain an effective injury prevention program, and makes specified violations of these provisions a crime. The act is enforced by the Division of Occupational Safety and Health (division) within the Department of Industrial Relations, including the enforcement of standards adopted by the Occupational Safety and Health Standards board (standards board).

How this bill changes the law

In response to a rising tide of violence affecting employees of all types, California has enacted SB 553 which requires all employers, with few exceptions, to design, implement, and maintain workplace violence prevention plans (“WVPP”) by July 1, 2024. The new law, added as Labor Code Section 6401.9, promises to pose a challenge for California employers as they seek to comply with its complex rules.

Initially prompted by the tragic events in 2021 at the Valley Transportation Authority railyard in San Jose, the law adds WVPPs as a mandatory portion of an employer’s injury and illness prevention program (“IIPP”). WVPPs may also be maintained as a separate document from the IIPP. WVPPs will be structured similar to IIPPs and will require an employer to designate the person responsible for implementing the program, identify and correct hazards through periodic inspections, train employees on hazards, and maintain records of incidents.

However, unlike an IIPP, the law requires employers “to obtain the active involvement of employees” and any unions “in developing and implementing the plan, [and], in designing and implementing training.” Unionized employers will be confronted with how to obtain the employees’ “active involvement” in those tasks.

Additionally, the law requires employers to train employees on numerous topics, including the law’s definitions and requirements, the WVPP itself, the documentation required under the plan, how to report incidents and concerns, and ways employees can participate in the WVPP’s development and implementation. Aside from these legal and procedural topics, the law mandates that employers train employees on “[w]orkplace violence hazards specific to the employees’ jobs” and “strategies to avoid physical harm,” and requires employers to do so during a training that provides “[a]n opportunity for interactive questions and answers with a person knowledgeable about the employer’s plan.” This means that an employer with thousands of employees will need to train all of its numerous employees, even though their various, differing positions, may require them to learn different “strategies to avoid physical harm” during interactive training sessions. Employee involvement and complex training obligations are merely two examples of the law’s many requirements that will likely prove extremely challenging for employers to implement.

The law also requires employers to maintain various records, including a separate violent incident log, records of the employees’ training, and records of workplace violence investigations. Under the new law, employee concerns of workplace violence must be investigated as part of the employer’s responsibility to identify and correct workplace hazards, and then the results of the investigation must be communicated to the employee. Employers also have a duty to conduct an investigation after incidents of workplace violence. Given the broad definition of workplace violence as any “threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress,” these new investigative and recordkeeping requirements could impose a significant administrative burden on employers.

Several of the law’s requirements are similar to the requirements in the current WVPP regulation that governs health care institutions. Thus, the health care industry experience with WVPPs may serve as a source of information and guidance on how to implement the requirements of SB 553.

Finally, unlike an IIPP, SB 553 specifically calls for the participation of unions in many of the key actions required by WVPPs, such as developing, implementing, and revising the WVPP and designing training on workplace violence. Given the labor movement’s newfound energy, employers with collective bargaining relationships should be prepared for active union involvement in all these processes.

SB 700—Employment discrimination: cannabis use

What the current law requires

Existing law, the California Fair Employment and Housing Act, prohibits various forms of employment discrimination and empowers the Civil Rights Department to investigate and prosecute complaints alleging unlawful practices.

Existing law, on and after January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the person’s use of cannabis off the job and away from the workplace, except as specified.

How the bill changes the law

This bill would make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis.

AB 594—Labor Code: alternative enforcement

What the currently law requires

1. Under current law, the primary responsibility for enforcing the Labor Code falls on the state Labor Commissioner.
2. Existing law prohibits any person or employer from engaging in willful misclassification, as defined, of an individual as an independent contractor instead of an employee and in specified acts relating to the misclassified individual’s compensation. Existing law, if the Labor and Workforce Development Agency or a court makes one of several prescribed determinations regarding the violation of those prohibitions, subjects the violator to specified civil penalties. Existing law also authorizes the Labor Commissioner to determine such a violation through investigation and informal hearing and, on making that determination, to issue a citation to assess those civil penalties pursuant to prescribed procedures for issuing, contesting, and enforcing judgments.

Existing law, the Labor Code Private Attorneys General Act of 2004 (PAGA), authorizes an aggrieved employee to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees. Existing law generally requires the employee to follow prescribed procedures before bringing an action and establishes alternate procedures for specific categories of violations.

How the bill changes the law

1. This bill give public prosecutors the ability to prosecute violations of the Labor Code, either civilly or criminally. AB 594 would give city and district attorneys the authority to sue employers for certain workplace violations. This bill would provide that, in any action initiated by a public prosecutor, a division within the department, or the Department of Justice to enforce the Labor Code, any individual agreement between a worker and employer that purports to limit representative actions or to mandate private arbitration shall have no effect on the proceedings or on the authority of the public prosecutor, the division, or the Department of Justice to enforce the code. The bill would further provide that any subsequent appeal of the denial of any motion or other court filing to impose such restrictions on a public prosecutor, a division, or the Department of Justice shall not stay the trial court proceedings, notwithstanding specified law.
2. This bill would authorize the recovery of willful misclassification penalties by the employee as a statutory penalty pursuant to the informal hearing provisions or by the Labor Commissioner as a civil penalty through the issuance of a citation or pursuant to existing law that authorizes action on behalf of a person financially unable to employ counsel. The bill would authorize an employee to either recover statutory penalties under these provisions or to enforce civil penalties under a specified provision of PAGA, but not both, for the same violation.

SB 723—Employment: rehiring and retention: displaced workers

What the law currently requires

Existing law, until December 31, 2024, requires an employer to offer its laid-off employees specified information about job positions that become available for which the laid-off employees are qualified, and to offer positions to those laid-off employees based on a preference system, in accordance with specified timelines and procedures.

Existing law, until December 31, 2024, also prohibits an employer from refusing to employ, terminating, reducing compensation, or taking other adverse action against a laid-off employee for seeking to enforce their rights under these provisions. These provisions are enforced by the Division of Labor Standards Enforcement.

Existing law defines the term “laid-off employee” to mean any employee who was employed by the employer for 6 months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, a reduction in force, or other economic, nondisciplinary reason related to the COVID-19 pandemic.

How this bill changes the law

This bill would redefine “laid-off employee” to mean any employee who was employed by the employer for 6 months or more and whose most recent separation from active employment by the employer occurred on or after March 4, 2020, and was due to a reason related to the COVID-19 pandemic, including a public health directive, government shutdown order, lack of business, reduction in force, or other economic nondisciplinary reason due to the COVID-19 pandemic.

The bill would create a presumption that a separation due to a lack of business, reduction in force, or other economic, nondisciplinary reason is due to a reason related to the COVID-19 pandemic, unless the employer establishes otherwise by a preponderance of the evidence.

The bill also would extend the December 31, 2024, repeal date until December 31, 2025. Furthermore, the bill extends the sunset date in SB 93 and would apply the right to be rehired to anyone in airport and hospitality industries who has been laid off for any non-disciplinary reason and does not have to be related to COVID-19.

SB 848—Employment: leave for reproductive loss

What the law currently requires

Existing law, the California Fair Employment and Housing Act (“FEHA”), makes it an unlawful employment practice for an employer to refuse to grant a request by any employee to take up to five days of bereavement leave upon the death of a family member.

How the bill changes the law

This bill would additionally make it an unlawful employment practice for an employer who employs five or more persons to perform services for a wage or salary to refuse to grant a request by an eligible employee to take up to five days of reproductive loss leave following a reproductive loss event. “Reproductive loss event” means the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The bill would require that leave be taken within three months of the event and pursuant to any existing leave policy of the employer. If, prior to or immediately following a reproductive loss event, an employee is on or chooses to go on leave from work pursuant to Government Code Section 12945, 12945.2, or any other leave entitlement under state or federal law, the employee shall complete their reproductive loss leave within three months of the end date of the other leave.

The bill would provide that if an employee experiences more than one reproductive loss leave event within a 12-month period, the employer is not obligated to grant a total amount of reproductive loss time in excess of 20 days within a 12-month period.

Under the bill, in the absence of an existing policy, the reproductive loss leave may be unpaid. However, the bill would authorize an employee to use certain other leave balances otherwise available to the employee, including accrued and available paid sick leave. The bill would make leave under these provisions a separate and distinct right from any right under the California Fair Employment and Housing Act.

The bill would make it an unlawful employment practice for an employer to retaliate against an individual, as described, because of the individual’s exercise of the right to reproductive loss leave or the individual’s giving of information or testimony as to reproductive loss leave, as described. The bill would require the employer to maintain employee confidentiality relating to reproductive loss leave, as specified.

AB 338—Public works: definition

What the law currently requires

Existing law requires that, except as specified, not less than the general prevailing rate of per diem wages, determined by the Director of Industrial Relations, be paid to workers employed on public works projects. Existing law defines the term “public works” for purposes of requirements regarding the payment of prevailing wages to include construction, alteration, demolition, installation, or repair work done under contract and paid for using public funds, except as specified. Existing law makes a willful violation of laws relating to the payment of prevailing wages on public works a misdemeanor.

How the bill changes the law

This bill would, commencing January 1, 2025, expand the definition of “public works” to include fuel reduction work done under contract and paid for in whole or in part out of public funds performed as part of a fire mitigation project, as specified. The bill would limit those provisions to work that falls within an apprenticable occupation in the building and construction trades for which an apprenticeship program has been approved and to contracts in excess of $100,000. The bill would delay the application of those provisions until January 1, 2026, for nonprofits.

AB 621—Workers’ compensation: special death benefit

What the law currently requires

Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of employment, which, in the case of the death of an employee, includes a death benefit.

Existing law provides, however, that no benefits, except reasonable expenses of burial not exceeding $1,000, shall be awarded under the workers’ compensation laws on account of the death of an employee who is an active member of the Public Employees’ Retirement System (“PERS”), unless the death benefits available under the Public Employees’ Retirement Law are less than the workers’ compensation death benefits. In that case, the surviving spouse and children of the employee are also entitled to the difference between the two death benefit amounts.

Existing law exempts local safety members and patrol members, as defined, from this limitation.

How the bill changes the law

This bill would expand the above exemption to include state safety members, peace officers, and firefighters for the Department of Forestry and Fire Protection who are members of Bargaining Unit 8 and would apply the exemption for these employees retroactively to January 1, 2019, for injuries not previously claimed or resolved.

AB 636—Employers: agricultural employees: required disclosures

What the law currently requires

1. Existing law requires an employer to provide an employee, at the time of hiring, a written notice including specified information in the language that the employer normally uses to communicate employment-related information to the employee. Existing law requires the Labor Commissioner to prepare a template that includes the information and to make the template available to employers in a manner as determined by the commissioner.
2. Existing law specifies that for purposes of these provisions, the term “employee” does not include, among other persons, an employee who is covered by a valid collective bargaining agreement if the agreement expressly provides for the wages, hours of work, and working conditions of the employee, and if the agreement provides premium wage rates for all overtime hours worked and a regular hourly rate wage.

How the bill changes the law

AB 636 amends Labor Code section 2810.5 to require employers to provide employees with additional information at the time of hiring, including:

• Information about the existence of a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed, and that was issued within 30 days before the employee’s first day of employment, that may affect their health and safety during their employment.
• For employees admitted pursuant to the federal H-2A agricultural visa, specific information, in Spanish and English if requested by the employee, about an agricultural employee’s rights under California law.

The California Labor Commissioner is required to publish an updated 2810.5 notice template on its website by March 1, 2024.

AB 647—Grocery workers

What the law currently requires

Existing law, upon change in control of a grocery establishment, requires an incumbent grocery employer, within 15 days after the execution of the transfer document, to provide to the successor grocery employer a list of eligible grocery workers, as specified, and requires the successor grocery employer to maintain a preferential hiring list of eligible grocery workers, to hire from that list for 90 days after the grocery establishment is fully operational and open to the public under the successor grocery employer, and to retain each eligible grocery worker hired for at least 90 days after their commencement date, except as specified.

Existing law defines “grocery establishment” for purposes of these provisions as a retail store that is over 15,000 square feet that meets specified requirements, and excludes from the definition a retail store that has ceased operations for 6 months or more.

How the bill changes the law

This bill would instead exclude a retail store that has ceased operations for 18 months or more, and would include distribution centers that meet specified requirements within the definition of “grocery establishment,” regardless of square footage. The bill would include within the definition of “eligible employee” for purposes of the provisions a separated employee, as defined.

The bill would create a rebuttable presumption that any termination occurring within a year of a change in control was due to a nondisciplinary reason.

The bill would require an incumbent grocery employer to also provide the list of eligible grocery workers to any collective bargaining representatives, and would revise the employee information an incumbent grocery employer is required to provide to the successor grocery employer. The bill would authorize a successor grocery store employer to obtain the list of eligible grocery workers from a collective bargaining representative if the incumbent grocery employer does not provide the information within 15 days. The bill would grant a separated employee who is offered a position that is more than 15 miles from their place of residence the right to refuse an offer of employment that is more than 15 miles from the employee’s residence without a loss of seniority, and would grant a separated employee a right to recall based on seniority before hiring any new employees for one year. The bill would prohibit an employer from taking adverse action against a person for seeking to enforce their rights.

The bill would authorize an employee, collective bargaining representative, or nonprofit corporation to bring an action in the superior court and would specify remedies in that regard, including front pay or back pay and punitive damages, and would authorize the court to award reasonable attorney’s fees and costs to the collective bargaining representative or employee who prevails to recover reasonable attorney’s fees and costs. prevails in an enforcement action. The bill would require the Division of Labor Standards Enforcement to enforce the provisions and would establish remedies in that regard. The bill would make an employer, agent of any employer, or other person who violates or causes to be violated the provisions, subject to civil penalties and liquidated damages, and would require the liquidated damages to be deposited into the Labor and Workforce Development Fund and paid to the employee as compensatory damages. The bill would require the Labor Commissioner to enforce the provisions, including by issuing a citation against the employer and filing a civil action in accordance with specified procedures.

AB 521—Occupational safety and health standards: construction jobsites: restrooms. toilet facilities

What the law currently requires

Existing law grants the Division of Occupational Safety and Health, which is within the Department of Industrial Relations, jurisdiction over all employment and places of employment, with the power necessary to enforce and administer all occupational health and safety laws and standards. The Occupational Safety and Health Standards Board, an independent entity within the department, has the exclusive authority to adopt occupational safety and health standards within the state. Existing law, the California Occupational Safety and Health Act of 1973 (OSHA), requires employers to comply with certain safety and health standards, as specified, and charges the division with enforcement of the act.

Existing law requires the division, before December 1, 2025, to submit to the standards board a rulemaking proposal to consider revising the heat illness standard and wildfire smoke standard. Existing law also requires the standards board to review the proposed changes and consider adopting revised standards on or before December 31, 2025.

How the bill changes the law

This bill would also require the division, before December 1, 2025, to submit to the standards board a rulemaking proposal to consider revising a regulation on construction jobsite toilet facilities to require at least one designated separate toilet facility for jobsites with 2 or more required separate toilet facilities for employees who self-identify as female or nonbinary. The bill would require the standards board to review the proposed changes and consider adopting revised standards for the standards described above on or before December 31, 2025.

SB 476—Food safety: food handlers

What the law currently requires

Existing law, the California Retail Food Code, provides for the regulation of health and sanitation standards for retail food facilities by the State Department of Public Health. Existing law, with specified exceptions, requires a food handler to obtain a food handler card within 30 days of their date of hire and to maintain a valid food handler card for the duration of their employment as a food handler. Under existing law, a food handler card is issued only upon successful completion of a food handler training course and examination that meets certain requirements. Existing law requires that at least one food handler training course and examination cost no more than $15, including a food handler card. A violation of the California Retail Food Code is generally a misdemeanor.

How the bill changes the law

This bill would require an employer to consider the time that it takes for the employee to complete the training and the examination as compensable “hours worked,” for which the employer would pay, and to pay the employee for any necessary expenditures or losses associated with the employee obtaining a food handler card. The bill would require the employer to relieve an employee of all other work duties while the employee is taking the training course and examination. The bill would prohibit an employer from conditioning employment on the applicant or employee having an existing food handler card.

SB 497—Protected employee conduct

What the law currently requires

1. Existing law prohibits a person from discharging an employee or in any manner discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in protected conduct, as specified. Under existing law, an employee who is discharged, threatened with discharge, demoted, suspended, retaliated against, subjected to adverse action, or in any other manner discriminated against in the terms and conditions of their employment because among other things, the employee engaged in protected conduct, as specified, the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.
2. Existing law prohibits employers and their agents from making, adopting, or enforcing a rule, regulation, or policy preventing an employee from disclosing information to certain entities or from providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry if the employee has reasonable cause to believe that the information discloses a violation of a law, as specified. Existing law also prohibits retaliation against an employee for various reasons. Under existing law, in addition to other penalties, an employer that is a corporation or limited liability company is liable for a civil penalty not exceeding $10,000 for each violation of this provision.
3. Existing law prohibits an employer from paying an employee at wage rates less than the rates paid to an employee of the opposite sex for substantially similar work, when viewed as a composite of skill, effort, and responsibility, and performed under similar working conditions, except upon a specified demonstration by the employer. Existing law prohibits an employer from prohibiting an employee from disclosing the employee’s own wages, discussing the wages of others, inquiring about another employee’s wages, or aiding or encouraging any other employee to exercise these and other rights. Existing law prohibits an employer from discharging or discriminating or retaliating against an employee because of an action taken by the employee to invoke these and other provisions. Existing law requires a civil action brought in this regard to be commenced within no later than one year, as specified.

How the bill changes the law

1. This bill establishes a rule that if an employee engages in protected conduct, like a harassment or discrimination complaint, there would be a rebuttable presumption in favor of the employee’s claim, if an employer retaliates or otherwise disciplines the employee, within 90 days of the protected activity.
2. This bill would instead establish that in addition to other remedies, an employer is liable for a civil penalty not exceeding $10,000 per employee for each violation of this provision, to be awarded to the employee who was retaliated against. The bill would require the Labor Commissioner, in assessing this penalty, to consider the nature and seriousness of the violation based on the evidence obtained during the course of the investigation, as prescribed.
3. This bill would create a rebuttable presumption in favor the employee’s claim if an employer engages in any action prohibited by this provision within 90 days of the protected activity specified in this provision.

SB 623—Workers’ compensation: post-traumatic stress disorder

What the law currently requires

Existing law establishes a workers’ compensation system, administered by the Administrative Director of the Division of Workers’ Compensation, to compensate an employee for injuries sustained in the course of employment. Existing law provides, until January 1, 2025, that, for certain state and local firefighting personnel and peace officers, the term “injury” includes post-traumatic stress that develops or manifests during a period in which the injured person is in the service of the department or unit. Existing law requires the compensation awarded pursuant to this provision to include full hospital, surgical, medical treatment, disability indemnity, and death benefits.

How this bill changes the law

This bill would instead repeal that provision on January 1, 2032, and for injuries occurring on or after January 1, 2024, expand its scope to apply to firefighting members of the State Department of State Hospitals, the State Department of Developmental Services, the Military Department, and the Department of Veterans Affairs, and to additional peace officers, including security officers of the Department of Justice when performing assigned duties as security officers, and the officers of a state hospital under the jurisdiction of the State Department of State Hospitals or the State Department of Developmental Services, among other officers. The bill would also make that provision applicable to public safety dispatchers, public safety telecommunicators, and emergency response communication employees, as defined.

SB 616—Sick days: paid sick days accrual and use

What the law currently requires

Existing law, the Healthy Workplaces, Healthy Families Act of 2014 (“Act”), establishes requirements relating to paid sick days and paid sick leave. The Act excludes specified employees from its provisions, including an employee covered by a valid collective bargaining agreement (“CBA employees”).

1. Existing law, with certain exceptions, entitles an employee to paid sick days for certain purposes if the employee works in California for the same employer for 30 or more days within a year from the commencement of employment. Existing law imposes procedural requirements on employers regarding the use of paid sick days, including by prohibiting retaliation for using paid sick days, by prohibiting the imposition of certain conditions on the use of paid sick days, and by requiring the use of paid sick days for specified health care and situations. Existing law requires the leave to be accrued at a rate of no less than one hour for every 30 hours worked, and to be available for use beginning on the 90th day of employment.
2. Existing law authorizes an employer to use a different accrual method as long as an employee has no less than 24 hours of accrued sick leave or paid time off by the 120th calendar day of employment or each calendar year, or in each 12-month period. Existing law also provides that an employer may satisfy the accrual requirements by providing not less than 24 hours or 3 days of paid sick leave that is available to the employee to use by the completion of the employee’s 120th calendar day of employment.
3. Existing law requires accrued paid sick days to carry over to the following year of employment. Existing law, however, authorizes an employer to limit an employee’s use of accrued paid sick days to 24 hours or 3 days in each year of employment, calendar year, or 12-month period. Under existing law, this provision is satisfied and no accrual or carryover is required if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. Existing law defines “full amount of leave” for these purposes to mean 3 days or 24 hours.
4. Under existing law, an employer is not required to provide additional paid sick days pursuant to these provisions if the employer has a paid leave or paid time off policy, makes an amount of leave available to employees that may be used for the same purposes and under the same conditions as these provisions, and the policy satisfies one of specified conditions. Under that law, one of those conditions requires the employer to have provided paid sick leave or paid time off in a manner that results in an employee’s eligibility to earn at least 3 days or 24 hours of sick leave or paid time off within 9 months of employment.
5. Under existing law, an employer has no obligation under these provisions to allow an employee’s total accrual of paid sick leave to exceed 48 hours or 6 days, provided that an employee’s rights to accrue and use paid sick leave are not otherwise limited, as specified.

How the bill changes the law

1. This bill would extend the above-described procedural requirements on the use of paid sick days to CBA employees.
2. This bill would modify the employer’s alternate sick leave accrual method to additionally require that an employee have no less than 40 hours of accrued sick leave or paid time off by the 200th calendar day of employment or each calendar year, or in each 12-month period. The bill would modify that satisfaction provision to authorize an employer to satisfy accrual requirements by providing, in addition to the existing criteria for satisfaction above, not less than 40 hours or 5 days of paid sick leave that is available to the employee to use by the completion of the employee’s 200th calendar day of employment.
3. This bill would raise the employer’s authorized limitation on the use of carryover sick leave to 40 hours or 5 days in each year of employment. The bill would redefine “full amount of leave” to mean 5 days or 40 hours.
4. This bill would change that condition so that the employee must be eligible to earn at least 5 days or 40 hours of sick leave or paid time off within 6 months of employment.
5. This bill would increase those accrual thresholds for paid sick leave to 80 hours or 10 days.