As we approach the end of the year, it is essential for businesses to review their operations and prepare for the changes that the coming year will bring. In January 2024, several new California Employment Laws will go into effect, impacting policies and budgets. This is a crucial time for employers to update their employee handbooks and hiring documents to ensure compliance with these new regulations.
Minimum Paid Sick Leave Accrual Cap and Use Increases
One of the significant changes in 2024 is the increase in the minimum paid sick leave accrual, cap, and use. The law is that employees must earn at least 1 hour of paid sick leave for every 30 hours of work. If your company uses an alternative method of paid sick leave accrual, such as front-loading, employers previously had to provide three days (24 hours) of paid sick leave. This requirement has now increased to five days (40 hours) that are available within the first 200 calendar days of employment.
Employers may also cap the use of accrued paid sick leave. The cap used to be three days (24 hours), which was increased to 40 hours or five days per year of employment, per calendar year, or for a 12-month period. Additionally, the cap on accrual of paid sick leave has been raised from 48 hours or six days to a minimum of 80 hours or 10 days. Remember that these are minimum requirements, and employers can choose not to cap accrual or cap use, but if they do, they must adhere to these minimums.
Regarding the carryover of accrued but unused paid sick leave, there is no requirement to carry it over if the sick leave is front-loaded (i.e. at least five days or 40 hours of sick leave are made available to employees at the beginning of each year, calendar year, or 12-month period). Employers who do not front-load sick leave can cap the carryover amount at 40 hours or five days but not less than that.
If an employer already has a paid time off (PTO) plan or a vacation plan that provides leave similar to paid sick leave, additional paid sick leave may not be required. However, this plan must allow employees to earn at least five days or 40 hours of paid sick leave or paid time off within six months of their employment.
The good news is that these provisions preempt any local ordinances that may differ from the state regulations. This means that California now has a consistent set of rules that apply statewide, making it easier for employers to administer and update their employee handbooks.
PRACTICAL TIP: Review and update your employee handbook and your paid sick leave policies. Communicate with your payroll provider to ensure that you are on the same page when it comes to paid sick leave accrual rate, cap on use, cap on accrual, and carry over thresholds. Ensure that paid sick leave hours available and used are reflected on employee’s pay stubs. Remember that your payroll company only does what you tell them to do and does not take responsibility to ensure that you are in compliance.
SB 497: Termination Within 90 Days of Certain Protected Activity Presumed Retaliatory
SB 497 focuses on protecting employees who engage in certain protected activities. Adverse employment actions (e.g. termination, demotion, not promoting, or other disciplinary action) taken against an employee within 90 days of engaging in protected activity will create a rebuttable presumption in the employee’s favor. These protected activities include:
- – Making a whistleblower complaint;
- – Filing a claim with the labor commissioner;
- – Submitting written or oral complaints to the employer about unpaid wages;
- – Initiating or testifying in a PAGA (Private Attorneys General Act) action;
- – Complaining about pay equity based on gender, race, or ethnicity;
- – Discussing or inquiring about their wages or the wages of other employees; and/or
- – Exercising any rights on their own behalf or on behalf of others.
Employers should be aware that this 90-day period creates a rebuttable presumption that the adverse employment action was retaliatory. It is rebuttable but something to strategically consider before terminating someone.
PRACTICAL TIP: When considering an employee’s termination, look back 90 days to see if they engaged in protected activity. If they did, make sure that your non-retaliatory reasons for the termination are well-documented and consider whether the cost to the business is worth the risk of termination within the 90 day period.
SB 700: Employees and Job Applications May Not be Discriminated for Off-the-Job Cannabis Use
SB 700 makes it illegal for companies to discriminate against employees and job applicants for off-the-job cannabis use. As of January 1, 2024, employers are prohibited from discriminating against individuals in hiring, termination, or any terms or conditions of employment due to their off-the-job cannabis use, with the exception of those in the construction industry (for the moment).
Additionally, employers may not use pre-employment drug screening that screens for non-psychoactive cannabis metabolites. Instead, they should use testing methods that detect psychoactive components of marijuana, indicating impairment at the time of testing.
Employers are also restricted from requesting information about a job applicant’s prior cannabis use.
PRACTICAL TIP: Review your employment application and handbook to ensure compliance.
AB 594: Expanded Avenues of Labor Code Violation Enforcement
AB 594 expands who can enforce labor code violations in California. Public prosecutors now have the power to prosecute civil or criminal actions against employers for labor code violations related to wage and hour issues, salary laws, and willful misclassification of employees as independent contractors, even when there is an arbitration agreement in place.
Public prosecutors include the Attorney General, district attorneys, city attorneys, county councils, and other city or county prosecutors.
PRACTICAL TIP: Employers should carefully review their classification of independent contractors in light of this expanded enforcement.
SB 699: Unenforceability of Non-Compete and Non-Solicitation Agreements
SB 699 reinforces and expands the unenforceability of non-compete and non-solicitation (of employees and of customers) agreements in California. The law makes these agreements unenforceable regardless of where and when they are signed, even if the employment and agreement were outside of California. Not only does the law make the agreements unenforceable but makes the entering of these agreements themselves a civil violation. That means that an employee, a former employee, or a prospective employee may bring a private action for an injunction or to recover actual damages, or both, and also may recover attorneys fees if they prevail.
PRACTICAL TIP: Employers should carefully review their agreements and consult legal counsel to ensure compliance.
SB 723: Workplace Violence Prevention Plans Required
SB 723 requires employers to establish, implement, and maintain effective workplace violence prevention plans. These plans must be in writing and can be a standalone section of the written injury and illness prevention program or a separate document. Employers must also record information related to any workplace violence incidents in a violent incident log. Types of workplace violence are defined in the statute, and employers must provide training on workplace violence prevention.
PRACTICAL TIP: Work with counsel or your human resources administrator to ensure that you have a workplace violence prevention plan that is in compliance, a system and procedure to log the incidents, and training for your employees.
AB 352: Protection of Reproductive Health Information
AB 352 requires employers to protect the privacy of an employee’s reproductive health information. Employers cannot release this information, even in response to a subpoena or law enforcement investigation, if it is intended to enforce another state’s anti-abortion laws. Employers must be cautious about sharing any health information without proper authorization.
Bonus: All-Gender Restrooms
A quick reminder about restroom facilities: Single-user toilet facilities in businesses must indicate that they are all-gender toilets. Ensure that your restroom signs comply with this requirement to avoid potential legal issues.
As California introduces these new employment laws in 2024, it is crucial for employers to stay informed and take proactive steps to ensure compliance. This includes reviewing and updating employee handbooks, employment agreements, and workplace policies. Employers should also seek legal counsel to navigate the complexities of these new regulations and avoid potential legal challenges.
Stay vigilant, adapt to the changes, and prioritize compliance to create a fair and safe workplace for your employees in 2024 and beyond. If you have any questions or need further details about these new laws, don’t hesitate to reach out for legal guidance and assistance.
Delve into a detailed discussion on the 2024 new employment law updates or get a copy of the slides by visiting: https://buff.ly/48eCTrR