Employment lawyers break down what the new rules mean for employers in the new year
Five new HR laws will go into effect in California on Jan. 1, 2022 – and HRD has spoken with three employment lawyers practicing in the state to break down the language in the legislation and educate employers on what they need to know to comply.
Senate Bill 606 expands the California Division of Occupational Safety and Health’s (Cal/OSHA) enforcement power by creating two new violation categories: “enterprise-wide” and “egregious.”
The law indicates that an employer with a violation at one worksite may be presumed to have similar violations at other owned worksites, aka “enterprise-wide.” The law will also allow Cal/OSHA to issue a citation to an “egregious” employer for several willful violations. A violation can be classified as “egregious” for a variety of reasons, such as if it resulted in worker fatalities, a worksite catastrophe or a number of injuries or illnesses. Once a violation is determined to be “egregious,” that determination shall remain in effect for five years.
Most importantly, the law requires each instance of an employee exposed to that violation to be considered a separate violation. Maximum penalties for committing either an “enterprise-wide” or “egregious” violation carry quite the hefty price tag at $123,709.
“Going into 2022, employers need to look at their safety plan – not just in writing, but also in practice,” says Guillermo Tello, a Los Angeles labor and employment lawyer at international law firm Clark Hill. “It’s important to take appropriate steps now to avoid violations, and I’d recommend reviewing your safety plan with your attorney to ensure you’re in compliance.”
The Silenced No More Act amends existing California law which restricts the use of confidentiality and non-disparagement provisions in employment agreements, including settlement and severance agreements.
Read more: Will U.S. ban employers from after-hours communication?
“The law was originally passed because everybody was worried that employees were having to be quiet about sexual harassment during the #MeToo movement,” says Millicent Lundburg, a labor and employment attorney at national law firm Culhane Meadows. “Now the law has been extended to include discrimination or harassment against any protected class, so employees can’t be prevented from telling the factual circumstance of the discrimination.”
The law also prohibits employers from requiring an employee to sign a release or non-disparagement agreement preventing them from disclosing information about unlawful acts in the workplace. Non-disparagement provisions are still permitted, but only if they contain a disclaimer with the following or substantially similar language: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
Additionally, SB 331 requires employers offering severance agreements to notify the employee that they have a right to consult an attorney regarding the agreement, providing the employee with a period of no less than five business days in which to do so. However, employers are still permitted to include confidentiality clauses regarding the amount of a settlement.
Assembly Bill 701 makes California the only state to regulate quotas used by warehouse employers.
Initially targeted at large employers like Amazon and Wayfair, the legislation affects all businesses that employ 100 or more employees at a single distribution center or 1,000 or more total warehouse employees in California. The law requires that employers must provide each non-exempt employee working at a warehouse distribution center with a written description of each quota to which they are subject, including tasks to be performed, materials produced or handled, time periods and any potential adverse employment actions that may result from failure to meet quotas.
However, employees may not be required to meet quotas that prevent meal and rest breaks, use of bathroom facilities or health and safety laws.
“In 2021, warehouse distribution centers were at the forefront of California law, regulations and environmental initiatives, says Sarah J. Sepasi, managing attorney of Los Angeles boutique employment practice Sepasi Legal, P.C. “These efforts seek to regulate labor practices of warehouse operators and the environmental impacts caused by the expansion and concentration of distribution centers over the last decade.”
Because employers have to provide written documentation of the quota to each employee either upon hire or within 30 days of their employment beginning, Tello urges employers to determine what exactly will be required for each position and to inform candidates of this during the interview process. “It’s going to make it difficult to discipline employees for performance-related issues if you’re not carefully documenting practices of the job and how they’re reasonable requirements,” Tello says.
California’s garment industry is rife with violations of labor and health and safety standards, Sepasi says.
“Several manufacturers of garments have tried to avoid liability as a guarantor by ‘adding layers of contracting’ between themselves and the employees manufacturing the garments,” she says.
As a result, SB 62 is intended to revise existing law to make clear that a person contracting to have garments made is liable for unpaid wages, damages, penalties and other compensation owed to workers who manufacture those garments, regardless of how many layers of contracting that person may use. The law also prohibits the practice of piece-rate compensation for garment manufacturing, except in cases of worksites covered by a valid collective bargaining agreement.
Assembly Bill 1033 requires that employers grant eligible employees up to 12 weeks of job-protected time off from work annually for the purposes of providing care to a parent-in-law with a serious medical condition under the California Family Rights Act (CFRA).
The law also requires that before an employee of a small business (defined as having between five and 19 employees) files a lawsuit based on an alleged CFRA violation, that employee must submit a claim for mediation from the Department of Fair Employment and Housing.
“This is probably the only new law that’s more beneficial for the employer,” Tello says. “It gives small employers a chance to explore early resolution before engaging in expensive and protractive litigation.”
