Seyfarth Synopsis: Having run the legislative gauntlet, the fate of California’s 2022 employment bills now lie with Governor Newsom’s pen, including bills that would expand pay data reporting and pay scale requirements, extend COVID-19 Supplemental Paid Sick Leave, and create mandatory wages and working conditions for fast food workers, and more.
August 31, 2022, marked the close of the 2022 Legislative Session. Bills that the Assembly and Senate passed late into the night will now be presented to the Governor for signature, where he will generally have until September 30 to act on them (bills sent to the Governor prior to the end of session must be acted upon sooner). Top of employers’ minds are bills that would expand pay data reporting and pay scale requirements, extend COVID-19 Supplemental Paid Sick Leave (again), and create a mandatory wages and working conditions program for fast food workers. Read on for our summary of these and other key employment bills that may soon become law.
Bills That Made The Cut
SB 1162: Pay Data Reporting and Pay Scale Disclosures
As we previously reported, SB 1162 would expand existing requirements that employers with 100 or more employees provide the California Civil Rights Department (CRD, f/k/a the DFEH) with specified EEO-1 pay data. New requirements would include reporting mean and median hourly rates, as well as a separate second report to be provided by employers that have 100 or more employees hired through labor contractors (so long as 1 employee is in CA).
The bill would expand the requirement that employers provide a pay scale for candidates to require all employers with more than 15 employees provide to existing employees the pay scale for the employee’s current position.
This bill will amend Section 12999 of the Government Code and Section 432.3 of the Labor Code.
AB 1949: Protections for Bereavement Leave
AB 1949 would amend the California Family Rights Act (“CFRA”) to prohibit an employer from denying a request from an employee with at least 30 days of active service to take up to five days of bereavement leave upon the death of a family member, defined as spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. While the days of bereavement leave need not be taken consecutively, the allotted leave must be completed within three months of the date of death of the family member. If the employer does not have a paid bereavement policy, the leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.
The bill would allow the employer to require documentation of the death of the family member, which can be in the form 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. The bill would prohibit retaliation for requesting bereavement leave.
The bill will amend Sections 12945.21 and 19859.3 of, and add Section 12945.7 to, the Government Code.
AB 2188: Off-the-Job Cannabis Use Protection
AB 2188 would, starting January 1, 2024, prohibit employers from discriminating against a person based upon their use of cannabis off the job. However, the bill expressly does not prohibit employers from taking action against a person for failing a valid pre-employment drug test that does “not screen for nonpsychoactive cannabis metabolites.” The bill would also permit an employer to administer a performance-based impairment test, and to terminate an employee who is determined to be impaired by cannabis on the property or premises of the place of employment. These provisions would not apply to employees in building or construction trades, and would not preempt state or federal laws requiring employees to be tested for controlled substances.
The bill will add Section 12954 to the Government Code.
AB 152: COVID-19 Supplemental Paid Sick Leave (Again)
The 2022 COVID-19 SPSL law was set to sunset on September 30, 2022. A very last minute gut and amend to AB 152 seeks to extend SPSL to December 31, 2022. This bill would only extend the time during which workers can elect to use the leave—it is not a newly-banked tranche of leave. The qualifying reasons for leave remain the same, as we previously summarized. In a slight extension of existing law, the bill would permit an employer to require an employee to submit to a second diagnostic test within no less than 24 hours, after the first positive result. The employer may decline to provide SPSL where the employee refuses a second test.
The bill was presented to the Governor August 31, 2022, and will take effect immediately upon signature.
AB 1041: Leave – Designated Person
AB 1041 would amend the California Family Rights Act to include a “designated person” for whom an employee may take leave. Designated person is defined as “any individual related by blood or whose association with the employee is the equivalent of a family relationship,” and would include domestic partners. An employer may limit an employee to one designated person per 12-month period, and may require the employee to substitute any of the employee’s accrued vacation leave or other accrued time off during this period or any other paid or unpaid time off negotiated with the employer.
The bill will amend Section 12945.2 of the Government Code and Section 245.5 of the Labor Code.
AB 257: Fast Food Accountability and Standards Recovery Act (FAST Recovery Act)
This bill, initially introduced in January of 2021, would establish a Fast Food Sector Council charged with creating a fast food workers’ bill of rights “to establish sectorwide minimum standards on wages, working hours, and other working conditions adequate to ensure and maintain the health, safety, and welfare of, and to supply the necessary cost of proper living to, fast food restaurant workers.”
The bill would forbid the Council from promulgating regulations requiring predictable scheduling, to amend current statutes, or to create new paid time off benefits. The bill also regulates the amount the Council may establish for purposes of minimum wage. The Council would also be subject to legislative committee oversight, explicitly requiring the Council to “provide information as requested by the appropriate committees of the Legislature.” The bill would establish a rebuttable presumption of unlawful discrimination or retaliation if an adverse action is taken against an employee within 90 days following the employer learning that the employee filed a complaint, or refused to work based on a reasonable belief that the condition of the restaurant would violate worker health and safety laws.
The bill was recently amended to remove a requirement that franchisors ensure franchisee compliance with a variety of employment, worker, public health and safety laws, including those related to unfair business practices, general liability, employment discrimination, the California Retail Food Code, a range of labor regulations, as well emergency orders. That provision would have also established joint and several liability for franchisee non-compliance with the measure, and prohibited any waiver or indemnity provisions.
The bill will amend Section 96 of, and adds Part 4.5.5 (commencing with Section 1470) to Division 2 of, the Labor Code.
AB 676: Franchisor Discrimination
This bill prohibits a franchisor from failing or refusing to grant a franchise or financial assistance to a current franchisee or prospective franchisee based solely on any characteristic protected by the Unruh Civil Rights Act of the prospective franchisee, or of the geographic area where the franchise is located, if any characteristic of the composition of the neighborhood or geographic area where it is to be located is protected by the Unruh Act. The Unruh Act confers protected status based on sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status.
This bill will amend multiple Business and Professions Code and Corporations Code provisions.
SB 1262: Background Checks
This bill was inspired by the California Court of Appeal’s decision in All of Us or None of Us. v. Hamrick, which held that an individual’s date of birth and driver’s license number could not be used as data identifying a criminal defendant in public records. This caused courts around the state to redact birth dates and driver’s license numbers from their indexes, making routine background checks much more difficult. Abrogating the Court of Appeal’s decision, this bill would require publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on a defendant’s driver’s license number or date of birth.
This bill will amend Section 69842 of the Government Code.
SB 1044: Emergency Conditions – Prohibition on Adverse Employment Actions
SB 1044 would prohibit employers, in the event of an emergency condition from: (1) taking or threatening adverse action against an employee for refusing to report to or leaving a workplace because they feel unsafe; or (2) preventing an employee from accessing their mobile device for use for emergency purposes. The bill defines “emergency condition” as either: (1) conditions of disaster or extreme peril to the safety of persons or property at the workplace caused by natural forces or a criminal act; or (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. A health pandemic is not considered an emergency condition, and the measure is inapplicable to emergency conditions that have ceased.
The employee, where feasible, would be required to notify the employer of the emergency condition before benefiting from the bill’s provisions. The bill does not apply to first responders, disaster service workers, employees on military bases, and employees of residential care facilities, among others.
While a violation of these provisions could subject an employer to a private lawsuit and penalties under the Private Attorneys General Act (PAGA), the bill allows a right to cure alleged violations following Labor Code section 2688.3.
Adds Chapter 11 (commencing with Section 1139) to Part 3 of Division 2 of the Labor Code.
AB 2183: Agricultural Labor Relations
As an alternative procedure to the polling place election process set forth in Section 1156.3 of the Labor Code, the bill would permit a labor organization to be certified through either a labor peace election or a non-labor peace election as the exclusive bargaining representative of a bargaining unit, through a representation ballot card election or by mail, thereby permitting a bargaining unit to summarily select a labor organization as its representative for collective bargaining purposes without holding a polling place election.
Last year, Governor Newsom vetoed a similar measure, directing the Labor and Workforce Development Agency to work with the Agricultural Labor Relations Board to correct some procedural irregularities and internal inconsistencies with the previous version of the bill.
Adds Sections 1160.10 and 1162 to the Labor Code.
AB 1601: Call Centers
AB 1601 originally would have required an employer of employees in a call center that intends to relocate from this state to notify the Labor Commissioner at least 120 days before the relocation. The measure, however, underwent a serious gut and amend, recasting the provisions of the measure to provide employment protections for employees in call centers subject to mass layoffs, relocations, or termination of employees—in other words, California’s statutory WARN requirements. This bill would prohibit a call center employer from ordering a relocation of its call center unless notice of the relocation is provided to the affected employees at least 60 days prior to the relocation.
Amends Labor Code Sections 1400, 1406, and adds related Labor Code Articles.
AB 2777: Extending Sexual Assault Statute of Limitations
The bill would amend the Code of Civil Procedure to permit a putative plaintiff, from January 1, 2023, to December 31, 2023, to pursue a cause of action in court based on sexual assault regardless of whether that claim would be barred by the applicable statute of limitations, so long as the alleged wrongful actions occurred on or after January 1, 2009. This is despite the fact that the Code of Civil Procedure already provides for a lengthy ten-year statute of limitations for claims relating to a sexual assault.
A previous version of this measure would have permitted revival of all claims “arising out of a sexual assault or other inappropriate contact, communication, or activity of a sexual nature that would otherwise be barred before January 1, 2023,” but the statute did not endeavor to define what constitutes “activity of a sexual nature.” Thankfully, that troubling provision was removed. Before “reviving” a claim under this provision, the attorney bringing the claim must sign a declaration “stating that the attorney has reviewed the facts of the case and consulted with a mental health practitioner, and . . . that it is the attorney’s good faith belief that the claim value is more than two hundred fifty thousand dollars.”
Amends Section 340.16 of the Code of Civil Procedure.
Bills That Did Not Make The Cut
AB 2133: Wages, Final Payment
This bill would have amended Section 201 of the Labor Code to reduce the amount of time to pay final wages from 72 to 48 hours in the event of a layoff of seasonal employees employed in the curing, canning, or drying of any variety of perishable fruit, fish, or vegetables. Recently, however, the legislation underwent a complete gut and amend to remove any labor and employment provisions, and recast the measure to require a reduction in statewide greenhouse gas emissions to at least 55 percent below the statewide greenhouse gas emissions limit no later than December 31, 2030. On the last day of session, the Assembly refused to concur in the Senate amendments and the bill failed.
AB 437: Exclusivity Requirements For Actors
This bill would have prohibited contractual provisions for the personal or professional services of an employee working as an actor that would prohibit the employee from working for multiple employers, “unless the employer can show that the other employment would pose a direct scheduling conflict or the employer can show that it would materially interfere with the employer’s business.” The measure was ordered to the inactive file in the middle of August by the bill’s author, the same Senator that put on this masterclass at the end of session.
We will continue to keep you apprised of developments as they come out of the Governor’s office. Expect a deep dive on our blog of bills that ultimately pass and will affect you and your California workforce. Please check back in with us here at California Peculiarities, and you can also check out our Policy Matters podcast and newsletter for regular check-ins on California (and national) policy and legislative updates as well.