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No Rest For California Employers In 2022! Here Are The Latest Employment Laws In The Golden State – Employee Rights/ Labour Relations


California state and local governmental bodies-our state
legislature, and counties and cities-were active again this year in
their efforts to regulate the workplace. Littler Workplace Policy
Institute has been tracking these bills as they worked their way
through the legislature. Some were signed into law by Governor
Newsom earlier this year and have already gone into effect. Unless
otherwise noted, others discussed in this article will become
effective on January 1, 2023. Notable new laws are summarized
below. Employers should begin reviewing these requirements to help
ensure compliance with the array of new laws. And don’t miss
our annual “new California laws” webinar on October 19, 2022.

New Employment Laws Generally Applicable to All Employers

Pay Data Reporting Requirements

Two years ago, California enacted legislation requiring
employers with 100 or more employees to report, on an annual basis,
specified data to the state’s Civil Rights Department,
including the number of employees by race, ethnicity, and gender in
various job categories. SB 1162 significantly amends and expands the
law to require that employers include the median and mean hourly
rates within each job category by race, ethnicity and gender, and
imposes penalties on employers for non-compliance. The amended law also requires employers with 100
or more employees hired through labor contractors to submit a
separate report with the same data for those employees. Employers
with 15 or more employees are now required to include the pay scale
in all job postings for a position and to make pay scale
information available to current employees in a position, upon
their request. Employers are required to maintain job title and
wage history records for each employee throughout their employment
and for three years thereafter.

COVID-Related Legislation

California continues to enact new workplace laws, or extend
those enacted previously, relating to COVID-19.

Supplemental Paid Sick Leave

In early 2021, California enacted legislation to provide
employees with supplemental paid sick leave for various
COVID-related absences in addition to paid time off employees
receive by law or policy. That law expired on September 30, 2021.
In February, 2022, SB 114, a new Supplemental Paid Sick Leave
(SPSL) law, went into effect. Like the 2021 law, the new law
applies to private employers with 26 or more employees. There are,
however, some differences. Among other things, the new law provides
leave to employees whose family members are experiencing symptoms
related to a COVID vaccine or booster.

The amount of leave is also different under the 2022 statute,
which provides for two separate “up to 40-hour” leave
banks
. The first leave bank is available if an employee is
unable to work or telework due to: an employee’s or an
employee’s family member’s quarantine or isolation due to
COVID; the need to care for a child whose school or childcare site
is closed or unavailable due to COVID; or an employee or
employee’s family member’s vaccination appointment or
vaccination side effects. The second leave bank is available only
if an employee or a family member for whom they are providing care
tests positive for COVID-19. The two leaves do not need to be
consecutive, and exhaustion of one is not required before using
another. An employee may choose which bank they wish to use.

Assembly Bill (AB) 152 extends California state SPSL to December 31,
2022
. It also allows employers to require a second COVID-19
diagnostic test, for purposes of SPSL, within no less than 24 hours
of a positive diagnostic test.

Notice of COVID Exposure

In 2020, California enacted AB 685, requiring employers to
provide written notice to all employees exposed to a person with
COVID-19 in the workplace. The notification requirements were
included in the Cal/OSHA Emergency Temporary Standard. AB 2693 extends these notification
requirements to January 1, 2024. This law allows an employer to
satisfy the requirements by posting a notice in the workplace for
15 days and keeping a log of the dates the notice was posted. The
law eliminates the requirement that employers notify the local
public health agency of a COVID-19 outbreak.

Extension of Workers’ Compensation Provisions Related
to COVID

AB 1751 extends to January 1, 2024, the
current rebuttable presumption that an employee’s illness
resulting from COVID-19 was sustained in the course of employment
for purposes of workers’ compensation benefits

Revisions to the COVID-19 Prevention Emergency Temporary
Standards

In November 2020, California issued COVID-19 Prevention
Emergency Temporary Standards (ETS). The standards were revised on
June 17, 2021 and again on December 16, 2021. The ETS were updated
again, effective May 6, 2022, and are in effect through December
31, 2022.

The revised regulations relax some of the previous
standards and eliminate the distinction between vaccinated and
unvaccinated employees. The new regulations state: “All
protections now apply regardless of vaccination status and ETS
requirements do not vary based on an employee’s vaccination
status.” The current standards no longer require masks
indoors, except in places such as healthcare facilities, or inside
employer-provided vehicles. Physical distancing requirements have
been eliminated except in a major outbreak, defined as exposure of
20 or more employees. Under the amended standards, partitions and
barriers are no longer required in the event of an outbreak, and
the ETS no longer include any cleaning and disinfecting
requirements. The current regulations also provide new
return-to-work standards. Employees who test positive can return to
work five days after a negative test if symptoms are improving and
they wear a face covering at work for an additional five days.
Employees whose symptoms are not resolved may return to work 10
days after the symptoms began if they have had a fever of 100.4
degrees or less, without fever medication, for 24 hours.

On September 15, 2022, the Cal/OSHA Standards Board held a public hearing on a proposed
non-emergency COVID-19 standard that would take effect when the
current standard expires on December 31. Unless and until a new
standard is adopted, California employers should continue to comply
with their obligations under the revised regulations through
December 31, 2022. The Board will likely conduct a vote by or at
its December 15, 2022, meeting to approve some final version of a
non-emergency COVID-19 regulation.

Workplace Health and Safety Citation Notices

AB 2068 provides that required notices posted
when the Division of Occupational Safety and Health issues a
workplace health or safety citation or order be written in
“the top seven non-English languages used by
limited-English-proficient adults in California, as determined by
the most recent American Community Survey by the United States
Census Bureau.” Currently the required languages are Spanish,
Cantonese, Mandarin, Vietnamese, Tagalog, Korean and Armenian. The
notices are also required to be posted in Punjabi if that is not
one of the top seven languages.

Employees Excused from Work During “Emergency
Conditions”

SB 1044 allows employees to leave work or
refuse to report to work during an “emergency condition,”
defined as disaster or extreme peril to the safety at the workplace
caused by natural forces or a crime, or an evacuation order due to
a natural disaster or crime at the workplace, an employee’s
home, or their child’s school. The law specifically excludes
health pandemics from the definition of emergency condition.

The law also prohibits employers from taking adverse action
against an employee for refusing to report to or leaving work
during an emergency condition.

The law does not apply to first responders; disaster or
emergency service workers; health care workers who provide direct
patient care or emergency support services; and employees who work
on nuclear reactors, in the defense industry, or on a military
base.

Heat Illness and Wildfire Smoke

AB 2243 requires CalOSHA to submit a regulation proposal to
consider revising the heat illness standard and wildfire smoke
standard. With regard to farmworkers specifically, the law further
requires a regulation to consider making respiratory protective
equipment mandatory at an AQI of 301 or higher.

Prohibition of Adverse Action for Off-Duty Marijuana Use

AB 2188, which takes effect on January 1,
2024, prohibits adverse action based on an
employee’s use of cannabis off the job and away from the
workplace or if a pre-employment drug test finds non-psychoactive
cannabis metabolites in the applicant’s hair, blood, urine, or
other bodily fluids. The law exempts employers in the building and
construction industry and applicants and employees in positions
requiring a federal background investigation or clearance. The law
also does not preempt state or federal laws applicable to companies
receiving federal funding or federal licensing-related benefits, or
that have federal contracts.

Increased Unemployment and Family Temporary Disability
Insurance Benefits

SB 951 increases the amount of unemployment
and wage replacement benefits for low-wage employees under the
family temporary disability insurance program, for disabilities or
covered incidents occurring on or after January 1, 2025.

Amendment to California Family Rights Act

AB 1041 expands the categories of individuals
for whom an employee may take leave under the California Family
Rights Act to include a “designated person,”
defined as “any individual related by blood or whose
association with the employee is the equivalent of a family
relationship,” and includes domestic partners. An employer may
limit an employee to one designated person per 12-month period.

Bereavement Leave

AB 1949 requires employers with five or more
employees to provide up to five days of unpaid bereavement leave
for an employee within three months of the death of a family
member.

Farm Workers Allowed to Vote by Mail in Union Elections

After initially declining to sign AB 2183, the Agricultural Labor Relations
Voting Choice Act, which gives agricultural workers the option to
vote by mail in union representation elections that were previously
required to be held in person, Governor Newsom reversed his
position and signed the bill following President Biden’s
urging. His signature was conditioned on a letter signed by the
United Farm Workers President and the California Labor Federation
executive Secretary-Treasurer agreeing to the passage of clarifying language during next year’s
legislative session.

Civil Penalties Against Public Employers for Deterring Union
Membership

SB 931 permits an employee organization to
file a claim against an employer before the Public Employee
Relations Board (PERB) alleging violations of Government Code
section 3550, which prohibits a public employer from deterring or
discouraging public employees or applicants from becoming or
remaining members of an employee organization. Fines are $1,000 per
affected employee, not to exceed $100,000. The PERB will award
attorney’s fees and costs to a prevailing employee organization
unless the Board finds the claim was frivolous, unreasonable or
groundless.

Amendments to California’s Hate Crimes Law

AB 2282, which is effective immediately,
amends existing law to increase and create equal penalties for
burning crosses, and displaying swastikas and nooses as hate
symbols. The law provides a $16,000 fine and up to three years’
imprisonment for two or more offenses.

The amended law also clarifies that it is not intended to
criminalize the display of the ancient swastika symbols that are
associated with Hinduism, Buddhism, and Jainism, which are symbols
of peace.

Criminal Conviction Record Relief

SB 731, effective July 1, 2023, seals records
of defendants convicted of most felonies on or after January 1,
2005, if they completed their sentence, probation, supervision,
parole and any other terms of their conviction, and are not
convicted of a new felony for four years. The new law would not
apply to registered sex offenders or those convicted of violent or
serious felonies, such as murder or attempted murder, manslaughter,
kidnapping, assault with a deadly weapon, robbery, and similar
offenses.

Time Period for Civil Rights Department to File Suit for
Employment Discrimination

Employees who file complaints of employment discrimination with
the Civil Rights Department may file a civil suit if the department
does not file suit within a specified time period. AB 2960 tolls those time periods during a
pending dispute resolution proceeding.

Motor Vehicle Tracking

AB 984, which requires the department of motor
vehicles to allow vehicle location technology on fleet vehicles,
prohibits employers from using the devices to monitor employees
except during work hours, and only if strictly necessary for the
performance of an employee’s duties. Employers that install the
tracking devices on vehicles must provide notice of the monitoring
that includes information about employees’ right to disable the
devices during non-work hours.

CalSavers Retirement Savings Program

On March 22, the California Code of Regulations was amended,
effective immediately, to clarify the definition of “exempt
employee” under CalSavers, the state-run employee retirement
plan for employers that do not otherwise participate in a
tax-qualified employee-retirement plan. The prior section of the
regulations defined employers required to participate in CalSavers
as those with “more than five” employees. Under the
amended regulation, an “eligible employer” is a business
with five or more employees that does not offer a retirement
savings program.

Then, on August 26, 2022, California enacted SB 1126, which further expanded the definition
of “eligible employer” to include businesses that do not
participate in a retirement savings plan and have one or more eligible employees. The law requires such
employers to have a payroll deposit savings arrangement in place to
allow employee participation in the program by December 31, 2025.
The new law excludes from the definition of “eligible
employer” sole proprietorships, self-employed individuals, or
other business entities that do not employ any individuals other
than the owners of the business.

Contraception and Abortion-Related Laws

The California legislature and governor have been active in
passing and signing bills related to contraception and reproductive
rights applicable to employers as well as their healthcare
insurance plans.

Effective September 27, 2022, AB 2091 prohibits employers and healthcare
plans from releasing information identifying or relating to a
person seeking or obtaining an abortion except pursuant to a
subpoena, unless the subpoena is based on another state’s laws
that interfere with a person’s abortion rights.

Similarly, AB 1242, prohibits California electronic
communications or computer companies from complying with
out-of-state warrants or other legal process seeking information or
records for an investigation relating to a lawful California
abortion.

More generally, AB 2223 prohibits a person from being subject
to civil or criminal liability for exercising their reproductive
rights or assisting someone who is exercising their reproductive
rights.

AB 2134 applies to religious employers’
healthcare service plans and insurers that do not provide coverage
for abortion and contraception. These plans and insurers will be
required to provide insured employees with written information
about free abortion and contraception benefits or services
available through the California Reproductive Health Equity
Program.

Effective January 1, 2024, SB 523 requires healthcare plans to cover
over-the-counter contraceptives and prohibits plans from imposing
deductibles, coinsurances, copayments, or any other cost-sharing
requirements for vasectomies. The law also amends California civil
rights law to prohibit employers from requiring disclosure of
information relating to applicants’ or employees’
reproductive health decision-making, or taking adverse action based
on such decision-making, defined as “a decision to use or
access a particular drug, device, product, or medical service for
reproductive health.”

Wage Garnishment

SB 1477 reduces the maximum amount of wages
that may be subject to garnishment.

Restroom Access for Certain Medical Conditions

AB 1632 requires businesses open to the public
that have restrooms for employees to allow individuals who have
Crohn’s disease, ulcerative colitis, irritable bowel syndrome,
or any other similar medical condition, to use the employee
restrooms.

Industry-Specific Laws

Fast Food Industry: Creating a State-Wide Fast Food
Council

Among the most significant laws enacted this year in the Golden
State, AB 257, the Fast Food Accountability and Standards Recovery
Act
, is the first law in the country to set standards and
regulations for fast-food employees, and has received national
attention.

State Fast Food Council

The law, which applies to fast food restaurants that are part of
a chain of 100 or more establishments nationwide, creates a state
Fast Food Council to set minimum wages and standards on working
hours and the health, safety, and welfare of fast food restaurant
workers. The 10-member Council will comprise representatives from
the Department of Industrial Relations (DIR), the Governor’s
Office of Business and Economic Development, and individuals
representing fast food restaurant franchisors, franchisees, and
employees. Before the Council can assume its duties, however,
10,000 fast food restaurant employees must sign a petition
approving the creation of the Council, which is then approved by
the DIR.

Fast food restaurants located within a grocery store are exempt
from the law if the grocery store employs the individuals who work
in the restaurant. Bakeries are also exempted from this law so long
as it produces for sale bread as a stand-alone menu item. The law
also provides that a standard set by the Council may not supersede
a standard covered by a valid collective bargaining agreement if
the agreement expressly provides for the wages, hours of work, and
working conditions of employees, and a regular hourly pay rate not
less than 30% more than the state minimum wage.

Minimum Wage of up to $22 per Hour in 2023

One of the most controversial provisions of the law authorizes
the Council to set a minimum wage of up to $22 per hour in 2023, an
increase of $6.50 per hour from California’s $15.50 per hour
minimum wage scheduled to take effect in January. In addition, on
January 1, 2024 and each year thereafter, the Council may increase
the minimum wage by the lesser of 3.5% or the increase in the
Consumer Price Index.

Local Fast Food Councils

The law also provides that any county or city with 200,000 or
more residents may form a local fast food Council to make
recommendations to the state Council on state health, safety, and
employment standards. The local Councils will be composed of at
least one fast food restaurant franchisor or franchisee, and at
least one fast food restaurant employee, as well as representatives
from local employment, health, and safety agencies.

State and local Council meetings and records are subject to open
meetings and public records acts, making franchisors’ corporate
records and data considered by the Councils potentially available
to the public and competitors.

Anti-discrimination/Anti-retaliation Provisions

The anti-discrimination/anti-retaliation provisions of the
statute are broad and open-ended. AB 257 prohibits a fast food
restaurant operator from discharging, discriminating or retaliating
against any employee who has 1) made a complaint or disclosed
information, “or the fast food restaurant operator
believes the employee disclosed, or may disclose

information regarding employee or public health or safety; 2)
participated in a proceeding relating to employee or public health
or safety; or 3) refused to perform work the employee believes
would violate worker or public health and safety laws or
standards.

AB 257 also creates a private right of action for employees to
seek reinstatement, treble damages, lost benefits, and
attorney’s fees and costs for violations. Moreover, the law
creates a rebuttable presumption of unlawful discrimination or
retaliation if the employer discharges or takes any other adverse
action against an employee within 90 days of the date when the
employer had knowledge of the employee’s protected action.

Opposition to the Law

There has been a great deal of opposition to the law by fast
food business operators that argue that the law will cause many
fast food restaurants, already hurt by the pandemic and supply
chain delays, to close. A day after AB 257 was enacted, a coalition
called Protect Neighborhood Restaurants, co-chaired by the
International Franchise Association and the National Restaurant
Association, filed with the attorney general’s office to place
a referendum on the law on the ballot in the 2024 election.
Proponents will have until December 4, 2022 to submit petitions
signed by 623,000 voters to place the referendum on the ballot.

Call Center Relocation Notice Requirements

AB 1601 expands the California Worker
Adjustment and Retraining Act (Cal/WARN), which requires employers
to provide advance written notice to employees in the event of a
mass layoff, relocation, or termination of operations. Under
current law, the notice requirements for relocation apply only to
industrial or commercial operations. AB 1601 would add relocation
of call centers to the notice requirements.

The new law also provides that call centers that fail to provide
the requisite relocation notices would be ineligible for state
grants, state-guaranteed loans, and tax credits.

Hospitality Industry: Panic Buttons for Hotel Workers, Limits
on Workload, and More

In 2018 California was unable to enact a state law requiring
“panic buttons” for hotel employees: portable devices
that are quickly and easily activated to summon help if an employee
reasonably believes violent or threatening conduct is occurring in
their presence. Since then, California cities and counties began to
implement their own hotel industry ordinances. In the last four
years, Oakland, West Hollywood, and Long Beach have enacted laws relating to hotel
workers. In addition to requiring panic buttons for housekeeping
staff, these ordinances also often include limits on workload,
compensation provisions, and recall rights for laid off
workers.

This year, Glendale and Los Angeles became the newest cities to enact
such ordinances.

Los Angeles Hotel Worker Protection Ordinance

The Los Angeles Hotel Worker Protection Ordinance,
which went into effect on August 12, 2022, requires hotels with 60
or more rooms to provide panic buttons to hotel workers assigned to
work in guest rooms or restrooms where other hotel workers are not
assigned. When activated the device transmits a signal to a
designated security guard who can provide immediate on-scene
assistance. Hotels with fewer than 60 rooms may use a supervisor or
manager for this role if they have had three hours of training.

Employers may not prevent employees from reporting violence or
threats to law enforcement. The Ordinance provides paid time off
for employees to report such incidents to law enforcement and
consult with a counselor. In an interesting twist, the Ordinance
also prohibits employers from taking adverse action against a hotel
worker who decides not to report violence or threats to
law enforcement. Hotel workers subjected to violent or threatening
conduct are also entitled to reasonable accommodation, including a
modified work schedule; reassignment; or adjustment to the job
structure, workplace location, or other work requirements.

Workload, Compensation, and Overtime Limitations

For employees whose principal duties include cleaning guest
rooms, the Ordinance also establishes new workload limitations and
compensation rules based mainly on room size and the number of
rooms, buildings or floors involved. Among other provisions, the
law requires hotels with 45 or more guest rooms to pay housekeepers
double their hourly rate when they clean more than 4,000 square
feet, and hotels with at least 60 guest rooms are required to pay
housekeepers double their hourly rate when they clean more than
3,500 square feet.

The Ordinance prohibits employers from requiring or
permitting
hotel workers to work more than 10 hours a day
unless they sign a written consent. Employers may not take adverse
action against employees who decline to work more than 10 hours a
day and must include a statement to this effect in the written
consent employees sign to work overtime. There are exceptions to
this overtime rule in case of emergency, which means an
“immediate threat to public safety or of substantial risk of
property loss or destruction.”

These rules may be superseded by a collective bargaining
agreement, but only if the waiver in the agreement is clear and
unambiguous.

Cleaning and Sanitizing of Guest Rooms

The Ordinance also specifically requires guest rooms to be
sanitized and cleaned after each night they are occupied, even when
guests opt out of daily room cleaning service. Hotels may continue
a green policy of reusing linens and towels though they may no
longer offer financial incentives, such as discounts or vouchers,
for guests to opt out of daily room cleaning.

Record Retention

There is a three-year record retention requirement for all
documents related to room cleaners’ assignments, rate of pay,
overtime hours, written consents, rooms cleaned, including square
footage, and essentially anything else required under the
Ordinance. The Ordinance imposes statutory damages of $100 dollars
per person per day for failure to maintain records, capped at
$1,000 per day for all affected hotel workers.

Anti-Retaliation and Enforcement Options

As with most such laws, employers may not take adverse action
against an employee for enforcing their rights under the Ordinance.
However, if an employer takes adverse action against a hotel worker
“known to have engaged” in protected activities under the
Ordinance within one year preceding the adverse action, the
employer must provide a detailed written statement to the employee
giving the reasons for their discharge or other adverse action.

In addition to injunction actions by the city to enforce the
law, hotel workers may bring a civil action for violations of their
rights under the Ordinance and potentially recover actual damages
in addition to statutory damages of $100 per day as well as
attorneys’ fees and costs.

A unique provision of the Ordinance imposes joint liability on a
hotel employer that contracts with another hotel employer,
temporary staffing agency, or employer organization, to obtain
hotel employee services, which means that if there are violations
of the Ordinance both the employer and the entity with whom the
employer contracted may be found liable for damages. This provision
will no doubt make staffing companies second guess contracting with
a hotel in Los Angeles.

Required Notices

The city has published a notice that must be placed on the back of
every guest room and restroom door. In addition, employees must be
given written notice of their rights under the Ordinance in the
employee’s language or one of the languages spoken by at least
10% of the workers employed by the hotel. The required notice is
available in English and Spanish.

Can a Hotel Obtain an Exemption?

If a hotel can demonstrate compliance with the law would require
a workforce reduction of more than 20% or a reduction of all
workers’ hours by more than 30% to avoid bankruptcy or a
shutdown, the city “shall grant” a waiver for up to one
year. However, before even applying for a waiver, the hotel must
provide a copy of its waiver application to all its employees.

Glendale Hotel Worker Protection Ordinance

In response to a proposed ballot measure regarding hotel worker
protections, Glendale enacted a Hotel Workers Protection Ordinance, which went
into effect on July 28, 2022. Some of the provisions of the new
law, including those regarding panic buttons and employees’
related rights, reiterate requirements in Glendale’s Hotel
Worker Workplace Protections Ordinance that went into effect in
2020. The new law adds to but does not replace the 2020 law. In
most other respects the Ordinance is almost identical to the Los
Angeles Ordinance.

New Workload and Compensation Rules

Like the Los Angeles Ordinance, the Glendale law establishes new
workload limitations and compensation rules, based mainly on room
size, though the requirements differ from those in the Los Angeles
Ordinance. The Glendale Ordinance has voluntary overtime rules that
are also similar to those in the Los Angeles Ordinance.

The minimum wage for hotel workers is pegged to Los Angeles wage
rates. As of July 1, 2022 the hourly rate for Los Angeles hotel
workers, and therefore Glendale hotel workers, is $18.17.

These rules may be superseded by a collective bargaining
agreement, but only if the waiver in the agreement is clear and
unambiguous.

Anti-Retaliation and Enforcement

The anti-retaliation and enforcement provisions of the Ordinance
are very similar to those in the 2020 law, which gave hotel workers
the right to file a civil suit for violations and created a
rebuttable presumption that an adverse employment action taken
against a hotel worker within 90 days of the hotel worker’s
exercise of rights under the Ordinance was retaliatory. The new law
contains a provision, identical to that in the Los Angeles Hotel
Worker Protection Ordinance, requiring an employer who takes
adverse action against a hotel worker “known to have
engaged” in protected activities under the Ordinance within
one year preceding the adverse action, to provide a detailed
written statement to the employee giving the reasons for their
discharge or other adverse action.

Exemptions

Exemptions from the law are the same as those in the Los Angeles
Ordinance.

Hotel and Janitorial Workers Recall and Retention Rights

During the height of the pandemic many businesses were forced to
lay off workers. As customers began to return and businesses began
rehiring, in 2021 California passed SB 93, which, among other
things, requires laid-off employees to be recalled in order of
seniority. The law applies to hotels, private clubs, event centers,
airport hospitality operations, and airport service providers, as
well as janitorial, building maintenance, and security services
provided to office, retail and other commercial buildings.

In addition, several cities in California enacted their own
recall rights as well as retention ordinances. The Long Beach
Recall Rights and Retention Ordinances, originally enacted in 2020,
apply to all hotels and to commercial property companies that
provide janitorial services and employ 25 or more workers.

The Long Beach Recall Rights Ordinance requires covered
employers to recall laid off employees for available positions they
are qualified for in order of seniority. To be qualified for
recall, the worker must have either held the same or similar
position at the same workplace at the time of separation or have
the same training as a new hire would receive for the position.

The Retention Ordinance provides that, in the event of a change
of control or new owner, the new employer is required to hire
employees from a “preferential hiring list” established
by the previous employer.

Both laws required the city manager to update the city council
and mayor every 90 days on the Ordinances’ effectiveness and
continued necessity. Since they were enacted the Ordinances have
continuously been renewed. On March 16, 2022, the city amended the
Long Beach Recall Rights Ordinance and the Hotel and Janitorial Retention Ordinance to
eliminate the sunset provisions and maintain the laws in effect
unless repealed.

This year, Emeryville also enacted a recall rights
Ordinance
, effective May 5, 2022, which applies to hotels with
more than 50 employees and card rooms, defined as any place where
people are legally permitted to play a card game for a fee, charge
or other compensation. Like other recall rights laws, the
Emeryville Ordinance requires laid-off workers to be recalled to
any available positions for which they are qualified based on
seniority. The law only covers those laid off after
Emeryville’s COVID-19 Declared Emergency was enacted on March
19, 2020, if they were employed for six months or more in the 12
months preceding the Declared Emergency. To be qualified for a
position the employee must have held the same or similar position
at the time of the layoff or have the same training that would be
provided to a new employee hired into that position. Employers must
provide employees laid off following the Declared Emergency with
written notice, in language they understand, of their rights under
the Ordinance and must keep copies of the notice, along with other
employment records, for at least three years following the date of
layoff. Although the Ordinance applies to employees covered by a
collective bargaining agreement (CBA), it does not preempt
provisions of the CBA that exceed the requirements of the
Ordinance. Employees may bring a civil action for violations of the
Ordinance seeking back pay, reinstatement, attorney’s fees and
costs.

Civil Penalties Will Be Assessed Against Hotels for Knowledge
of Sex Trafficking

Under AB 1788, If a supervisory employee knew or
acted with reckless disregard of activity constituting sex
trafficking in the hotel and failed to inform law enforcement, the
National Human Trafficking Hotline, or another victim service
organization, the City Attorney or District Attorney’s office
may seek fines ranging from $1,000 to $10,000, per penalty. If any
employee of the hotel knowingly benefitted by participating on a
venture that the person knew or acted in reckless disregard of
activity constituting sex trafficking, the same fines may be
imposed against the hotel. There is a five-year statute of
limitations on these penalties from the date of the violation, or
within the date the victim attains the age of majority.

Minimum Wage for Healthcare Workers

In another new trend, a number of California cities have
recently introduced bills to provide a $25 per hour minimum wage
for healthcare workers employed by private healthcare
facilities.

Most recently, Los Angeles and Downey passed $25 Healthcare Worker Minimum
Wage Ordinances that were scheduled to take effect in July 2022.
However, both ordinances are currently on hold due to referendum
petitions requiring the cities to either repeal the ordinances or
place them on the ballot in the next election.

Several other cities in Southern California have adopted similar
ordinances.

Other Location-Specific Laws

San Francisco Public Health Emergency Leave

In the June 7, 2022 election, San Francisco voters passed Proposition G, a
new Public Health Emergency Leave Ordinance
(PHELO), effective October 1, 2022. The Ordinance requires
employers with 100 or more employees worldwide to provide up to 80
hours of paid leave during a public health emergency to each
employee who performs work in San Francisco. The paid leave is in
addition to any other paid time off to which the employee is
entitled, including paid sick leave under the San Francisco Paid
Sick Leave Ordinance. The Ordinance does not apply to employees
covered by a collective bargaining agreement that expressly waives
the Ordinance’s requirements in clear and unambiguous
terms.

Employees may use this leave when they are unable to work or
telework due to any of the following;

  1. The recommendations or requirements of a federal, state, or
    local health order because of a public health emergency in a
    jurisdiction in which the employee, or a family member the employee
    is caring for, resides.

  2. The employee, or a family member the employee is caring for,
    has been advised by a healthcare provider to isolate or
    quarantine.

  3. The employee, or a family member the employee is caring for, is
    experiencing symptoms of and seeking a medical diagnosis, or has
    received a positive medical diagnosis, for a possible infectious,
    contagious, or communicable disease associated with the public
    health emergency.

  4. If the school or place of care, or caretaker of a family member
    the employee is caring for is closed or unavailable due to the
    Public Health Emergency.

  5. An air quality emergency, if the employee primarily works
    outdoors and is pregnant or a member of a “vulnerable
    population,” defined as people with heart or lung disease;
    respiratory problems; or age 60 or older. Employers may require a
    doctor’s note or other documentation to confirm an employee is
    pregnant or a member of a vulnerable population.

Anti-Retaliation and Enforcement

The city may file a civil suit for violations of the law, and
employees may file complaints with the San Francisco Office of
Labor Standards Enforcement (OLSE) and file civil suits for damages
for lost leave time. The law prohibits employers from taking any
adverse action against an employee for using public health
emergency leave, and if an employee files a complaint with the OLSE
or a court, the law creates a rebuttable presumption of unlawful
discrimination or retaliation if the employer takes any adverse
action against the employee within 90 days of the filing.

Notice and Recordkeeping

The Ordinance requires employers to post a notice in English, Spanish, Chinese, and
Filipino, and, where feasible, also provide it to employees
electronically via email, text, or an employer’s website.
Employers are required to keep records of hours worked and leave
taken for four years.

San Francisco Family Friendly Workplace Ordinance

In 2014 San Francisco enacted a Family Friendly Workplace
Ordinance (FFWO), applicable to companies with 20 or more employees
worldwide, which gave San Francisco employees with caregiver
responsibilities the right to request alternative work
arrangements.

Effective July 12, 2022, the city significantly amended and
expanded FFWO to guarantee flexible work arrangements for
employees with qualifying caregiver responsibilities who provide
written notice of their preferred arrangement, unless the employer
can demonstrate undue hardship. The amended Ordinance also expanded the scope of
covered employees to include employees living outside San Francisco
who telework as well as those who have caregiver responsibilities
not only for a parent over 65, but also for any person over 65
“in a family relationship” with the employee.

Required Process for Responding to Employee
Requests

The amendments provide a process and time frames for responding to employee
requests
. Employers must provide a written response to the
employee within 21 days of the request for an alternative work
arrangement. If the employer does not agree to the requested
arrangement, it must act in good faith to initiate an interactive
process, either orally or in writing, to find a mutually agreeable
arrangement. If the interactive process is unsuccessful and the
employer denies the employee’s request, the employer must
provide written notice of its decision within 21 days of the
initial request, explaining why the requested work arrangement
would cause undue hardship. The bases for undue hardship are the
same as in the original Ordinance and include increased costs,
detrimental effect on the ability to meet client or customer
demands, inability to organize work among other employees, or
insufficient work during the time or at the location the employee
has requested.

The employer must also state in writing that the employee has a
right to request reconsideration within 30 days of the denial.
Employers must arrange a meeting to discuss an employee’s
request for reconsideration within 21 calendar days of receiving
the request, and they must provide a final decision in writing 14
calendar days after the meeting. If an employee does not receive
responses within the required timeframes they may file a complaint
with the San Francisco Office of Labor Standards Enforcement
(OLSE).

Notices

All businesses in San Francisco must post notices, available on the on the San Francisco
OLSE website, in English, Spanish, Chinese, and Filipino/Tagalog
and any other language spoken by 5% or more of the workforce.
Employers must also provide employees who inquire about alternative
work schedules with the authorized request form or an equivalent.

Increased Penalties

Under the original Ordinance OLSE could require employers to pay
administrative penalties up to $50 for each day a violation
occurred or continued. The amended Ordinance permits OLSE to
recover the greater of $50 for each day a violation
occurred or the cost of care the employee incurred. Additionally,
OLSE may order the employer to pay the city the costs incurred for
investigating and remedying a violation, if greater than the sum of
$50 for each day of a violation.

Oakland and Los Angeles Drop Vaccination Proof Requirements for
Most Businesses

On March 9, 2022, Los Angeles County dropped its proof of vaccination requirement to enter
indoor businesses. People attending indoor mega-events of 1,000 or
more people, such as sporting events, are still required to show
proof of COVID vaccination or a recent negative test. Similarly,
effective May 17, 2022, Oakland amended its Proof of Vaccine Ordinance, lifting its
previous requirements that public businesses, such as restaurants,
gyms and the like, verify proof of COVID vaccination. Now, only
senior adult care facilities and city senior centers are required
to verify proof of vaccine. Notices, which were required to be
posted in those businesses as of January 15, 2022, are available here.

West Hollywood Minimum Wage and Time Off Ordinance

An increasing number of California cities have enacted their own
local sick leave and/or minimum wage Ordinances. On November 15,
2021, West Hollywood enacted an Ordinance that permits full-time
employees to accrue 96 hours per year of paid time off and an
additional 80 hours per year of unpaid time off for sick leave,
vacation, or personal necessity. Part-time employees are provided
pro-rated paid and unpaid accrued time off proportional to the
hours worked. The Ordinance also raised the minimum wage above the
levels set by the state and set a schedule for increasing the
city’s minimum wage every six months until July 1, 2023, and
annually thereafter. For hotel employers, the Ordinance took effect
on January 1, 2022. For all other employers, the Ordinance took
effect on July 1, 2022.

On May 16, 2022, the city amended the Ordinance to clarify some
of its provisions. The amended Ordinance provides that employees must
have been employed for at least six months to be eligible to use
accrued paid time off unless the employer’s policies provide
for a shorter time period. The amendments also allow unused,
accrued paid time off to be carried over until the time off reaches
a maximum of 192 hours of accrued time, unless the employer’s
established policy is more generous.

The city recently released regulations and administrative materials, including required posters which must be in English,
Spanish, and any other language spoken by at least 5% of
employees.

The Ordinance provides for administrative penalties and creates
a private right of action for employees to recover damages in
addition to a $100 per day penalty, attorneys’ fees, and if the
violation is found to be intentional, the potential recovery treble
damages.

Employers covered by collective bargaining agreements that
expressly waive the Ordinance are exempt. Businesses may also seek
a one-year waiver of the Ordinance if they can demonstrate
financial hardship.

Mountain View Wage Law Compliance Ordinance

On September 13, 2022, Mountainview passed an ordinance, effective immediately, requiring
businesses wishing to obtain a business license to submit an
affidavit attesting that it has not been found to be in violation
of any federal, state or local wage and hour laws. Submission of a
false affidavit would subject a business to administrative fines
and penalties.

Conclusion

Employers in the Golden State already face an array of
employment law compliance challenges. 2023 adds several more to the
list. Employers are encouraged to “stay current” and
review their policies and practices to seek to comply with these
new laws.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.



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