Not to be extreme, but didn’t we just do this?!?!? Time is ridiculous.
Here’s what you need to know to tackle the new employment laws for 2024!
California Paid Sick Leave Expansion – SB 616
Since 2015, California has required employers to provide Paid Sick Leave (“PSL”). Employees may take PSL for their own, or a family member’s, health condition or preventive care or time off to seek medical care. Over the years, the law has been expanded and includes time off for an employee who needs time off to obtain psychological counseling, safe housing, and other measures related to domestic violence situations, sexual assault or stalking. Employees’ family members are defined to include an employee’s child, parent, spouse, domestic partner, sibling, grandparent, grandchild, stepparent and stepchild, as well as a “designated person,” which is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship.
Now, SB 616 requires employers to let employees accrue up to a maximum of 80 hours of PSL, or for the employer to award an annual allotment of 40 hours of PSL. An employer can be more generous and allow a higher accrual cap or give a larger annual allotment. These are the new minimums you must provide.
As before, to be eligible for PSL, an employee must work in California for 30 or more days within one year from their date of hire. There is no minimum number of employees that an employer must have to be covered. Employees may begin using their accrued PSL after 90 days of employment. Unused PSL carries over from year to year and continues to accrue up to the maximum accrual unless the employer uses the allotment method. Employers are not required to pay PSL upon separation from employment.
Employers must ensure that the expansion of hours – either the increase in the cap or the annual allotment – occurs on January 1, 2024. So, even if you have traditionally used July 1 as the allotment date, you must modify your program.
Excluded from this law are most collectively bargained workplaces, employees of in-home supportive services, certain transportation workers.
Some employers offer “Paid Time Off” to cover a variety of situations – vacation, illness or injury, etc. If you provide PTO, you do not need to provide PSL so long as the PTO meets the minimum requirements under the law. If your PTO policy does not cover part-time or temporary employees, you must either extend PTO to them or provide a stand-alone PSL policy.
Also, it is important that you confirm your employees’ itemized wage statements show the accurate amount of paid sick leave accrued, allotted and/or used for each pay period. This is a “hot topic” for wage and hour claims.
Employers with “no-accrual paid time off” policies may comply with this requirement by stating “no-accrual PTO” on the wage statement. Some locally mandated paid sick leave rules may not accept this.
Reproductive Loss Leave – SB 848
Eligible employees who work for employers with five or more employees (and public sector employers) may take up to five days off following a “reproductive loss event.” Such an event is a failed adoption, failed surrogacy, miscarriage, stillbirth or an unsuccessful assisted reproduction. If an employee experiences more than one reproductive loss event within a 12-month period, the employee may take up to a maximum of 20 days off.
To be eligible, the employees must have been employed for at least 30 days prior to the leave. Like the bereavement leave enacted last year, the time off must be taken within three months of the event, but the days off do not need to be consecutive. If the employee is already on a leave of absence at the time of the loss, the employee has three months from the end of the leave to take the reproductive loss time off.
This leave is unpaid, but employees may substitute their accrued paid time off for the unpaid time. And the new law requires employers to maintain employee confidentiality relating to the employee’s time off.
Please note, this new leave is slightly different from the existing protections under California’s Pregnancy Disability Law. That law provides unpaid leave for an employee disabled by pregnancy, childbirth or related medical conditions, including time off needed for recovery from loss or end of pregnancy. An employee is eligible for this protection on day one of employment.
Retaliation – SB 497
This amendment to existing laws is intended to put the burden of proof onto the employer to show that an employer’s action against an employee was not retaliation.
Under the new law, the burdens of proof under Labor Code Sections 98.6 and 1197.5 will change from the employee to the employer if the employee was discharged or otherwise retaliated against within 90 days from the employee engaging in protected activity. This presumption of retaliation is rebuttable by the employer by establishing a legitimate, non-retaliatory reason for the adverse action. The new law also adds a civil penalty of up to $10,000 per employee, to be awarded directly to the employee by the Labor Commissioner.
Cannabis – AB 2188 and SB 700
The use of cannabis has been lawful in California since 2016. Two new laws take effect January 1 that restrict an employer’s ability to take action against an employee for off-duty (and off-site) cannabis use. Nothing in these new laws – or any law – protect an employee who is under the influence and/or impaired from cannabis (or alcohol, or other drugs) while on duty and/or on the work site.
AB 2188 was passed last year with a one-year delay in enforcement. That law amends the California Fair Employment and Housing Act to prohibit employment discrimination based on a person’s use of cannabis off the job and away from the workplace. The law also prohibits adverse action based on a drug test that identifies only non-psychoactive cannabis metabolites in the applicant’s hair, blood, urine, or other bodily fluids.
SB 700 was enacted this past fall and restricts an employer’s ability to ask about prior cannabis use in the hiring process.
Employers must revise their anti-discrimination policies. You will also want to review and potentially revise job applications, pre-employment testing programs, and drug and alcohol policies.
Compensation
As of January 1, 2024, all California employers, regardless of size, must pay their employees at least a minimum wage of $16.00 per hour. Please be mindful of local minimum wage ordinances.
The minimum salary that must be paid to exempt employees in California is a function of the minimum wage. Workers paid under the Administrative, Executive or Professional exemption must be paid at least two times the appropriate minimum wage based on a 40-hour workweek -$66,650.
The Computer Software overtime exemption requires a minimum hourly rate of pay of $55.58, which means a minimum monthly salary of $9,646.96, or minimum annual salary of $115,763.35.
Also, it is imperative that you review your timekeeping and pay procedures. Nonexempt employees’ meal breaks must be no less than 30 minutes. Rounding is not acceptable. And the meal period must be taken before the fifth hour of work. Employers must provide nonexempt employees with the opportunity to take their rest breaks in a timely manner.
Also, you must include all forms of compensation when calculating the regular rate of pay. This means that when an employee is entitled to a meal period premium, rest break premium, or overtime pay, you must consider all forms of compensation – bonuses, etc., – to determine the rate of pay.
Workplace Violence Prevention Program Requirements – SB 553
Beginning July 1, 2024, covered employers must have a Workplace Violence Prevention Program. Employers must record information in a violent incident log for every workplace violence incident. Workplace violence is any act of violence or threat of violence that occurs in a place of employment. It does not include lawful acts of self-defense or defense of others. Employers must maintain documentation, including workplace violence hazard identification, evaluation, and correction, as well as training and investigation records.
Employers must provide training to employees on the Workplace Violence Prevention Program, and to train when a new or previously unrecognized workplace violence hazard is identified and when changes are made to the plan.
The agency responsible for enforcement of this new law is Cal-OSHA, which must also propose standards (regulations) by December 1, 2025.
Noncompete Agreements are Still Completely Illegal – SB 699 & AB 1076
Noncompete agreements are illegal! California’s unfair competition law, set out in Business & Professions Code §16600, voids contracts that restrain employees from engaging in a lawful profession, trade, or business. There are very limited exceptions for situations like the sale of a business or ownership interest.
SB 699 provides that noncompete agreements are unenforceable no matter where the agreement was signed, or when, and bars employers from attempting to enforce a void contract regardless of whether the contract was signed, and the employment was maintained outside of California. If an employer tries to have an employee sign such an agreement, without intent to enforce, to increase the odds that the employee does not try to compete, the employer will automatically commit a civil violation. The employee may file a lawsuit for injunctive relief or the recovery of actual damages, reasonable attorney’s fees and costs.
The second law, AB 1076 amends Section 16600 by explicitly requiring that its prohibition on noncompete agreements must be broadly construed to void any employment noncompete provision, no matter how narrowly tailored, unless one of the exceptions applies.
If an employer has current or former employees who signed noncompete agreements, the employer must notify them in writing by February 14, 2024, that the noncompete clause or agreement is void. Failure to provide this written notice is itself a violation and is an act of unfair competition under the statute.
This is just a summary of some of the changes to California’s employment laws.
Please do not hesitate to contact us with questions!
California Employment Law Blog 