2023 California Employment Law Update

2023 Employment Law Update for California Employers

January 19, 2023  –  Elizabeth A. Fritzinger

The California legislature passed several new employment laws affecting California employers. Below is our annual summary of the most significant new laws that were recently passed. To find out how to keep you and your business compliant and keep you up to date with the laws that affect you, please contact our office.

Minimum Wage Increases

Due to the enactment of Senate Bill 3, effective January 1, 2023, the state minimum wage increased to $15.50 per hour for all California employers, which also means the new state salary basis threshold for several California exemptions increased to $64,480 per year.

In addition, select California cities, including Santa Rosa, Petaluma and Sonoma, will raise the minimum wage for non-exempt employees working within city limits. Non-exempt employees working within one of these cities must be paid the local minimum wage when greater than the California state minimum wage. However, overtime-exempt employees working in one of these cities need not be paid more than the California state minimum annual salary of $64,480. The following list contains the local minimum wage rate, effective January 1, 2023, for non-exempt employees working in each of the California cities listed below:

CFRA & Sick Leaves Expanded to Cover Employee’s Care of “Designated Person”

Assembly Bill 1041 (amending Government Code section 12945.2 and Labor Code section 245.5) expands the individuals an employee can care for under both the California Family Rights Act (CRFA) and the Healthy Workplaces, Healthy Families Act (California’s paid sick leave law). Previously, CFRA and the paid sick leave law allowed leave for care of a spouse, registered domestic partner, child, parent, parent-in-law, grandparent, grandchild, and sibling. AB 1041 expands the list to include care of a “designated person”. A “designated person” is defined under the CRFA as “any individual related by blood or whose association with the employee is the equivalent of a family relationship” designated at the time the employee requests leave; and by the Labor Code as “a person identified by the employee at the time the employee requests paid sick days.” An employer may limit an employee to one “designated person” per 12-month period.

New Statutory Requirement to Provide 5 Days of Unpaid Bereavement Leave

Assembly Bill 1949 (amending Government Code sections 12945.21 and 19859.3 and adding section 12945.7) will make bereavement leave a protected leave of absence. The law allows employees, who have been employed for at least 30 days, to take up to 5 days of bereavement leave within 3 months of the death of a family member and applies to all private-sector employers with 5 or more employees and all public-sector employers. Family member is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. Employers can request documentation to support the leave and it may be unpaid, but employees can use existing leave to cover the absence.

Workplace Safety: No Adverse Action During State of Emergency

Senate Bill 1044 (adding Chapter 11, commencing with section 1139, to Part 3 of Division 2 of the Labor Code) prohibits adverse action by an employer, in the event of an emergency condition, when an employee refuses to report or leaves the workplace due to a reasonable belief that the workplace is unsafe. Additionally, employers may not prevent employees from accessing their mobile or other communication devices to get emergency assistance, assess the safety of the situation, or communicate with someone to verify their safety. Employees must notify employers in advance of the condition when feasible or as soon as possible after. An Emergency Condition is defined as “Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act” or “An order to evacuate the workplace, worksite, worker’s home, or the school of a worker’s child due to natural disaster or a criminal act”. The law specifically states that a health pandemic is not an emergency condition and does not apply to certain employees.

Notice of Cal/OSHA Citations in Spoken Languages

Assembly Bill 2068 (amending Labor Code section 6318 and 6431) imposes new posting requirements in the event a citation, order, or special order is issued by the California Division of Occupational Safety and Health (Cal/OSHA). The requirements now dictate the posting, in addition to English, be provided in the top seven non-English languages as determined by the most recent American Community Survey by the United States Census Bureau.

New Protections for “Reproductive Health Decision”

Senate Bill 523 (amending Government code sections 12920, 12921, 12926, 12931, 12940, 12944, and 12993 and adding sections 22853.3 and 22853.4; amending Health and Safety Code sections 1343 and 1367.25 and adding sections 1367.255 and 1367.33; amending Insurance Code section 10123.196 and adding sections 10123.1945 and 10127.09; and, adding Public contract Code sections 10509.5 and 10828) amends the Fair Employment and Housing Act to make it unlawful to discriminate against an employee or job applicant on the basis of their reproductive health decision making.

Pay Scale Disclosures and Pay Date Reporting

Senate Bill 1162 (amending Government Code section 12999 and Labor Code section 432.3) requires employers make pay scale information available to employees for the position they are working. Additionally, employers with 15 or more employees must make the pay scale information available to any position in a job posting including those published by third parties. Employers are also required to maintain job title and wage rate histories for each employee during their employment, and for 3 years after employment ends, for possible inspection by the California Labor Commissioner. Failure to do so creates a rebuttable presumption in favor of an employee’s claim. Lastly, employers of 100 or more employees were required to report the number of employees by race, ethnicity and sex by job title categories and pay bands; Senate Bill 1162 requires employers also report the median and mean hourly rate within each job category, for each combination of race, ethnicity, and sex in the report.

Expanded Mandated Retirement Plans

Senate Bill 1126 (amending Government Code sections 100000 and 100032) expands the definition of “eligible employer” within CalSavers Retirement Saving Program (CalSavers) to a person or entity with at least one employee, but specifically excludes sole proprietorships, self-employed individuals, or other business entities that don’t employ individuals besides the owner. If eligible employers with 5 or more employees do not offer their own employer-sponsored retirement savings program, they are required to set up a payroll deposit retirement savings arrangement by December 31, 2025, to enable employees to participate in CalSavers.

Updated Covid-19 Notice/Reporting Requirements

Assembly Bill 2693 (amending Labor Code sections 6325 and 6409.6) extends the Covid-19 notification requirements of Labor Code section 6409.6 until January 1, 2024, but also modifies it. The modification no longer requires employers report cases to their local health departments and allows them to satisfy the notice requirement by prominently displaying notice of a potential exposure. The notice must be posted for 15 days and contain the dates the Covid-19 infected individual was at the worksite within the infectious period.

Extended Presumption of Covid-19 as Work Comp Injury

Assembly Bill 1751 (amending Labor code sections 3212.86, 3212.87, and 3212.88) extends the presumption established by Senate Bill 1159 until January 1, 2024. The presumption is that illness or death resulting from Covid-19 arose out of and in the course of employment if fellow employees at their place of employment test positive and the employer has 5 or more employees. The claim is also compensable after 30 or 45 days, rather than 90. Employees must exhaust paid sick leave and meet specified certification requirements before receiving temporary disability.

Protections for Off-Site, Off-Duty Marijuana Use Beginning Jan. 1, 2024

AB 2188 amends the FEHA by adding a provision explicitly protecting a person’s off-site, off-duty marijuana use. The bill prohibits employers from discriminating against applicants or employees because they have 1) used cannabis off the job and away from the workplace; or 2) were found to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids by a drug screening test. However, the bill does not cover all workers. Additionally, employers may still use scientifically valid drug tests conducted through methods that screen for current impairment, as AB 2188 does not permit employees to possess, be impaired by or use cannabis on the job, even for medicinal purposes. It also does not eliminate an employer’s right to maintain a drug- and alcohol-free workplace under current health and safety laws. The bill will take effect on Jan. 1, 2024, giving employers one year to update their policies, practices, and procedures and to train personnel for the changes.

To find out how to keep you and your business compliant, and keep you up to date with the laws that affect you, please contact our office.