A little late posting here, but if it helps avoid one issue for you then it is worth it!
The inevitable march of time . . . and new requirements for California employers. 2023 is here! Give a cheer! Please do not hesitate to contact us with questions or requests for assistance.
Employers of 15 or more employees must affirmatively include the pay scale for a position in any job posting. If an employer uses a vendor/third party to recruit or post, the employer must ensure it includes the necessary information. If a current employee asks for the pay scale for the position they currently hold, the employer must provide it. The pay scale means the salary or hourly wage that the employer reasonably expects to pay for the position. SB 1162.
This new law also expands employers’ recordkeeping obligations. All employers must keep records of the job title and wage rate history for each employee for the duration of the employment, plus three years after separation. SB 1162.
Pay Data Reporting.
Employers of 100 or more employees, and/or 100 or more contracted through labor contracting agencies, must submit annual pay data to the California Civil Rights Department by May 10, 2023 (and the “second Wednesday of May” for years after 2023).
This is similar to, but not exactly a copy, of the reporting requirements to the federal government through an EEO-1. The data report must include information about pay, race, ethnicity and gender. For workers supplied through a labor contractor, the reporting rule generally covers only those who perform work within the employer’s usual course of business. SB 1162.
Pay at least minimum wage to all employees.
As of January 1, 2023, all California employers, regardless of size, must pay their employees at least a minimum wage of $15.50 per hour.
The minimum salary that must be paid to exempt employees in California is a function of the minimum wage. Generally, this means that workers paid under the Administrative or Executive exemption must be paid at least two times the appropriate minimum wage based on a 40-hour workweek -$64,480.
Many California cities have their own minimum wages that employers must pay nonexempt employees for work within city limits. This does not alter the minimum annual salary of $64,480. Some Northern California cities with higher rates include: Belmont ($16.75); Burlingame ($16.47); Cupertino ($17.20); Daly City ($16.07); East Palo Alto ($16.50); El Cerrito ($17.35); Foster City ($16.50); Half Moon Bay ($16.45); Hayward ($16.34 if 26+ employees; $15.50 if 1-25 employees); Los Altos ($17.20); Menlo Park ($16.20); Mountain View ($18.15); Novato ($15.53-$16.32 depending on size of employer); Oakland ($15.97); Palo Alto ($17.06); Redwood City ($17.00); Richmond ($16.17); San Carlos ($16.32); South San Francisco ($16.70); San Jose ($17.00); San Mateo ($16.75); Santa Clara ($17.20); and Sunnyvale ($17.95).
Review your Wage and Hour Compliance.
As a reminder, it is imperative that you review your timekeeping 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.
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. You cannot simply use the base hourly rate.
Pay workers as employees, unless that worker can really fit into California’s independent contractor definition.
California remains serious that it wants businesses to comply with its independent contractor rules (as set forth in Dynamex, AB 5 and AB 2557). If you have workers performing services for you and are not paying that worker as a W2 employee, you must carefully review that relationship.
Employers with 5 or more employees must provide up to 5 days of unpaid bereavement leave for an employee within three months of the death of a family member. This is an amendment to the CFRA. If you already offer, say, paid leave of three days, you must offer the additional two unpaid days. AB 1949.
Leave to Care for a “Designated Person.”
Both the California Family Rights Act (CFRA) and California’s Paid Sick Leave Law (“Health Workplaces Health Families Act” (HWHFA)) are expanded in 2023 to include a “designated person.” At the time an employee requests unpaid (CFRA) or paid (HWHFA) leave, they may identify a designated person that they will be caring for. AB 1041.
Protected Time Off During an Emergency.
This new law prohibits retaliation by an employer when an employee refuses to report to work or leaves work during an emergency condition. This new law also prohibits an employer from preventing an employee from accessing a mobile device during an emergency condition. An emergency condition is where there is disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act. It also includes conditions when there is an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. (A health pandemic is excluded from the definition of an emergency condition). There are exceptions for certain types of employees (first responders, jail employees, health care workers, etc.). SB 1044.
Cal/OSHA to Implement Non-Emergency COVID-19 Prevention Regulations.
On December 15, 2022, Cal/OSHA opted COVID-19 Prevention Non-Emergency Regulations (NER) to replace the Emergency Temporary Standards (ETS). Of note, the ETS remain in effect while Cal/OSHA works to review the proposed NER. This should be completed by mid-January. The NER will remain in effect for two years.
The NER will continue to require employers to maintain a safe and healthy workplace for employees. A COVID-19 IIPP must be in effect; this can be in the employer’s IIPP or a separate document. Testing must be available, as well as adequate ventilation. When the new regulation becomes effective, Cal/OSHA will publish an updated set of FAQs and model program.
California again extended the “rebuttable presumption” that an employee’s illness resulting from COVID-19 was sustained in the course of employment for purposes of workers compensation benefits.
California amended Labor Code §6409.6 regarding the duties of an employer when notified of potential exposure to COVID-19 and extends its provisions until January 1, 2024. Employers will now have the option to post a notice of potential COVID-19 exposure at the worksite and on existing employee portals instead of providing written notice. AB 2693.
GPS Surveillance of Fleet Vehicles.
Generally, an employer must notify employees that GPS monitoring will occur for work vehicles and must allow an employee to disable the technology, outside of work hours. AB 984.
Additional provisions of the California Privacy Rights Act of 2020 (“CPRA”) take effect. The CPRA substantially expands the privacy and information security obligations of most employers doing business in California, requiring significant changes to existing policies, procedures, and practices for handling individuals’ personal information.
Relocation of Call Centers.
CalWARN Act is specifically expanded to include where employer is going to move a call center out of state. Call centers must provide notice of mass layoff, relocation or termination pursuant to the Act. AB 1601.
Human Trafficking Liability.
Hotel employers are now liable for human trafficking penalties if a supervisory employee knew of or acted with reckless disregard of sex trafficking activity. AB 1788.
California prohibits a person from being subject to civil or criminal liability based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome or based on their actions to aid or assist a woman or pregnant person who is exercising their reproductive rights. AB 2223.
“Card Check” for Agricultural Employees.
Agricultural Labor Relations Voting Choice Act gives agricultural workers the option to vote by mail in union representation elections that were previously required to be held in person. AB 2183.
• • •
This is just a summary of some of the changes to California’s employment law rules. Please do not hesitate to contact us with questions!