Episode 161: 5 New California Labor Laws Employers Should Start Preparing For

Welcome to the Workplace, a podcast by Cal Chamber. I'm Matthew Roberts, the Labor Law helpline manager and Employment Law Council with the California Chamber of Commerce. Hello everybody. Well, after a long, winding road this year, the California legislative session has finally come to a close with the passage of Governor Newsom September 30th signing deadline. That means all the bills passed and put before the governor's desk had to be signed by September 30, and if not, they go back to the drawing board. Now, as we have highlighted throughout the year, several bills were working their way through the legislature and we've talked a lot about several of them over the course of the year. And there's some bills that were signed by Governor Newsom that reached his desk that will really impact employers as they prepare for the new year. So to discuss how employers can get a head start on preparing new policies and procedures and getting up to speed on compliance for January 1, 2023, we welcome back Cal Cham policy advocate for employment issues, Ashley Hoffman. It's so good to have you back, Ashley. Thank you for being here.

Thanks so much, Matt.

So, of course, before we get started, we have to do the old disclaimer. None of these bills are effective until January 1, 2023, unless you and I say otherwise. And I can't think of any better place to start than to discuss the end result of SB 1162, a paid transparency and pay data reporting bill that we've discussed several times on this podcast this year.

So.

So, Ashley, let's start with the pay transparency aspect. How do employers need to address pay transparency heading into a new year?

Yeah, when you talk about a long, winding road, this is probably the first one that I think of. This bill went through a lot of changes and ultimately, while we were still opposed, I think it's in a much better spot than it was when originally introduced. So importantly, employees may now request and receive a pay scale for their current position, and that includes salary or hourly ranges an employer reasonably would expect to pay for that position. And then the biggest piece is that employers with 15 or more employees must include the same pay scale on any job posting. And finally, I want to note that there is a record keeping requirements. Of course, you already have certain wage record keeping requirements under existing law, but this also says that you must keep job titles in wage rate history for every employee during their employment, as well as three years after the end of their employment.

And something I found interesting in the bill was really this distinction between your current employees and applicants for employment. So any employee you have can ask for this pay scale, but unless you have 15 or more, you don't have to put it in your new job postings. Right, Ashley?

Yes, that's correct.

Were you hearing anything from members or other people on the business community how they intend to comply with this job scale? Because things I hear about on the helpline include I'm just going to include a minimum wage all the way up to some massive pay scale range. That way I continue to have flexibility in what I'm going to put on the job posting or what I tell the employee. What were you hearing about how the pay scale needs to work overall?

Yeah, you know, we did ask for some language in there to clarify. Right. That pay scale meant something that you would reasonably expect to pay. And I think it's going to be a little position dependent, you know, if you have maybe kind of a white collar job where everyone doing that job is really doing the same thing. Yeah. I don't think it's fair maybe then for you to say you may pay minimum wage when we all know you're probably not going to. Right. Or to put the cap at like $500,000. Right. If that's not accur. Accurate. But I know some people like in the entertainment industry, you know, something that I heard from those members were, you know, when they're looking for an actor or something, those salaries can range tremendously, of course, you know, because depending on that person's skill or exposure level or what the role is. Right. So I think it's going to be very job dependent as far as kind of what is probably viewed as reasonable.

Okay, so then let's move on to the expansion of the pay data reporting to the government. This, of course is the section that you and I had talked about quite a bit on the podcast. Where did this land?

Yeah. So you know, the most troubling provision that had been in there about making all these reports public was removed due to significant opposition for that piece. So that is out. But there are still some changes that folks will need to comply with regarding these reports. So again, you know, if you have 100 or more workers, you already had to provide these reports annually to the civil rights department. SB 1162 adds that you must now also include mean and median hourly rate for each job category and each race and gender category within those jobs. If you have 100 or more workers hired through a labor contractor, you must also file a separate report for that. Now finally, before you know, you would submit a report for the establishment as well as kind of an overall View this now simply says it will be a report submitted for each establishment. And then the deadline finally was changed to the second Wednesday in May, where previously it was the end of March.

And what I think is really interesting about this bill is that the Civil Rights Department, or what was formerly known as the Department of Fair Employment and Housing, for a long period of time, have substantial resources about these pay data reports and how to fill them out and how to submit them. So if you're responsible out there for putting these reports together and submitting them to the government first, know you have more time now than you used to. Right. Your deadline is now the second Wednesday of May. But also that the Civil Rights Department has a lot of information and a full comprehensive user guide for you to get out there and get your reports filled out. Just keep an eye on that median and mean hourly rate, as Ashley said. And if you use a lot of staffing agency employees or temporary workers through a labor contractor. So, Ashley, a few Covid measures worked their way through the legislature and one that popped up at the very end of the session. AB152 was one such measure recently signed by the governor. This one's been a pop one on the helpline over the last few weeks. Ashley, what does AB152 do for our employers?

So AB152 is one of those bills that takes effect immediately because it is a budget trailer bill. It extends the sunset on the COVID paid sick leave from September 30, which would have been Friday through the end of the year. Importantly, it does not create additional leave. There is no new entitlement to leave. This is simply an extension to use leave if you have not done so already this year. Also, one provision that we were able to lobby to get in was allowing an employer to request a second test for a positive result. So if you're using that second bucket where you are asking for an additional five days because you are still testing positive, originally the employer could request proof of a positive test and they now can request proof of a second one. So say you're testing positive on day six, on day eight or nine, the employer could require you to test again. There are also grant programs. So in the budget, there had been some money, I think something over $250 million for grants to help small businesses, you know, subsidize the pay that they had paid for the paid sick leave. So this puts in an additional 50,000. I think it's $50,000 for those employees. This will be governed by the Go Biz office yeah.

And what's interesting about that is that the Go Biz office hasn't put anything out there yet. You know, as of the time you and I here are talking, Ashley. But there's a couple things in the bill that can get employers ready to get their documents in place, because Go Biz is going to want you to prove that you meet the eligibility, meaning you have 26 to 49 employees. So it's capped within this small range of employees. You can be a small business or you can be a 501C3 or a couple other nonprofits. But of course, you'll have to provide proof of your articles of incorporation or your nonprofit documents. And you also, of course, will need to substantiate that you actually paid out supplemental paid sick leave during the course of the year in order to get up to $50,000. So stay tuned. But you can start collecting your documents if you fall in that range and be ready to apply as soon as that program goes up. So, Ashley, it seems like every year we're looking at expansions of mandated leaves of absences. And this year, of course, we had a couple of bills, AB 1949 and AB 1041. Let's start with AB 1949. What new leave rights does that create?

Yeah, so AB 1949 creates a right of bereavement leave. This bill had been tried a number of times, and we it actually originally started as a job killer, but we successfully were able to work with the author's office to kind of get it out of the labor code, make sure PAGA didn't apply, and some other provisions that actually ended up resulting in us going neutral. So it creates a bereavement leave right up to five days. This is unpaid leave, but of course, an employer can pay the leave if they so choose. It's for a qualifying family member, which really mirrors sifra. And I want to note, I actually got this question this morning, AB 1041, which we'll talk about in a second, changes who you can take leave for in Sefra. And that does not affect bereavement leave at all. It specifically only says it's for a spouse, child, parent, etc. The leave must be used within three months of the date of death. You can ask the employer can ask for certain documentation to be provided within 30 days of the use of the leave. And then again, you know, there's just some clarification in there if you already have an existing policy, how this works with that policy just clarifying, you know, that that your policy is okay as long as it allows for a worker to get up to five days of unpaid leave.

Excellent. So that is a new mandatory leave, of course, which means policies in our handbook, as always, Ashley, that we were going to have to update to provide that right to bereavement leave should the employee experience the death of a qualifying family member. Now, you just mentioned SIFRA, and you did kind of tease AB 1051. I'm sorry, 1041, which impacts CFRA as well as the California mandatory paid sick leave law. What does AB1041 do?

AB1041 says that in addition to the family members outlined in the paid sick leave law, in cfra, you can also take leave to care for a designated person. A designated person is any individual that you are related to by blood or who you consider to be like family. It must be identified, you know, by the employee at the time they are taking the leave. And the employer may limit the number of designated persons that employees can take time to care for to one per 12 month period. I do want to note, you know, even though, of course, the law says. Right. That the designated person must be like family to you, I think at the end of the day, and I kind of made this clear when talking to the proponents of the bill, you know, I think employers are going to probably have a hard time realistically, really challenging that designation. Right. That's a very subjective determination by the worker. So just wanted to throw that out as a note to folks who are wondering how this realistically will work.

Yeah. And I think what's important there is that it's this one designated person per 12 month period. And as we remember, for CIFRA administration, your 12 month period is that 12 month calendar year, 12 month, you know, fiscal year, 12 month, looking forward, rolling backwards, you know, whatever 12 month period you've designated for their ability to take 12 weeks in that time. And so we're going to look at just adding one more checkbox to the checklist, which is really, is it for a designated person? Great. Well, we just need to track who that designated person is over the course of this 12 month period. So, for example, actually if I designate, you know, my best friend's mom who was like family to me when I was growing up, that's who I can be use as my designated person only for those 12 months. Right. But once my 12 months are up, I can designate a different person, right?

Correct. That's right.

Excellent. All right, Ashley, thank you. Let's close with another bill we have discussed frequently this year on the podcast SB 1044, which purported to prohibit retaliating against employees, employees that attempt to leave the workplace during emergency conditions. Ashley, what does SB 1044 actually prohibit heading into this new year?

Yeah, this is another one that went through quite a few changes, you know, over the year that we largely pushed for. So basically it says that during an emergency condition, which is disaster or extreme peril to the safety of an employee caused by a natural force or criminal act or an order to evacuate, you cannot retaliate against a worker who leaves work or refuses to come to work, you know, because they feel unsafe due to this emergency condition. I want to note that, you know, it actually has already been illegal for several years to force someone to work in an evacuation zone. And so, you know, and there are already a handful of both federal and state laws that prohibit you from requiring someone to work in a dangerous condition. So the grand scheme of things, probably not actually a huge, huge change now that the bill has, you know, been narrowed down to what it is importantly, it doesn't include a health pandemic. You know, the sponsors really did not intend to have this apply to Covid. And then, you know, a lot of industries were carved out from the law as well. You know, like a hospital worker, somewhat like. Right. Someone who works in an assisted living facility, people who by their job description, you know, do need to maybe evacuate people during an emergency or people who contract with a public agency or emergency response to ensure, you know, that this does not negatively impact the state's emergency response or to make sure that customers or patrons are safe. If fire, something breaks out at a facility, you need to evacuate people, you know, making sure that that can still happen seamlessly.

Excellent. Well, you know, the five bills we covered today, we chose really specifically because they have the broadest application, I think, to all of our California employers. This is not the exhaustive list, of course, of things that may impact you in the employment law realm. So stay up to date with other Cal Chamber resources, such as our HR Watchdog blog, where we will be going into more detail of all the bills, really that were passed through the legislature this year. But Ashley, thank you so much for joining me today to discuss some major changes to California employment law heading into 2023.

Thank you for having me.

And thank you, listeners, for joining this discussion on the workplace. Please comment, share and subscribe to Cal Chamber's podcast by visiting calchamber.com.