Good morning, welcome to my latest Monday Morning Briefing. Well, we are surely in the midst of Fall with a capital F, and things are sure busy around here on Monday mornings. So I am going to cut right to it.
I promised you last week I would pick back up with the rest of the NEW CALIFORNIA EMPLOYMENT LAWS that we did not cover last week. As a reminder, if you think you missed last week (or you’ve come late to the party and have missed some or any of these), or you just can’t get enough of Beth’s Monday venting, remember that you can always go to get back issues at www.mondaymorningbriefings.com.
Okay, let’s dive in.
AB 1949 – BEREAVEMENT LEAVE
This new law grants employees up to five days of unpaid leave to take time off for the death of their spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The leave technically falls under the California Family Rights Act (CFRA), but the employee need only be employed for 30 days. The employee must be permitted to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available. Employers may request documentation from the employee within 30 days which could consist of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency, although I don’t know how many employers are going to ask for that kind of documentation.
Many employers currently have voluntary bereavement policies, many of which are paid, and they will have to coordinate this mandatory leave with those current leave policies. This will be just one of the tasks on our plate for this year’s 2023 handbook updates coming up in the next couple of weeks.
As CFRA now extends to employers with five or more employees in California, clearly, this Bereavement Leave expansion of the CFRA does as w ell. Also, failing to provide Bereavement Leave will constitute a failure to provide a leave under CFRA, and all the rights and remedies can be enforced through the Department of Fair Employment and Housing.
SB 1044 – EMPLOYERS CANNOT TAKE ACTION AGAINST EMPLOYEES WHO REPORT OR REFUSE TO WORK IN UNSAFE CONDITIONS
You all can imagine where this law started. SB 1044 prohibits an employer, in the event of an emergency condition, from taking or threatening adverse action against any employee for refusing to report to, or leaving, a workplace because the employee has a reasonable belief that the workplace is unsafe. The law also prohibits an employer from preventing any employee from accessing the employee’s mobile or communications for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. It also requires the employee to notify the employer of the emergency condition which may prompt the employee to leave or refuse to report to the workplace.
I would have been more concerned about this new law, except for a few things. First, the above sentence says that employees must notify employers of the emergency condition. So employees cannot simply walk off the job and then later claim it was all due to some “unsafe condition,” under this law. They would have had to notify us in writing first, in real time.
Second, the definition of “Emergency Condition” is really very limited. Under this law, “Emergency Condition” means the existence of either 1) conditions of disaster or extreme danger to the safety of persons or property at the workplace caused by natural forces or a criminal act; 2) An order to evacuate a workplace, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act. And very important, under Section (B) “Emergency condition” does not include a health pandemic. So first, it has to be some extreme natural disaster or criminal act, like a shooter. And more importantly, the “Emergency Condition” CANNOT be something like COVID. That last sentence was the key.
The legislature was clearly addressing situations like workplace violence, fires, and such events. And I think all of us would want to encourage our employees to take active roles in those kinds of situations.
SB 1162 – PAY TRANPARENCY REPORTING AND JOB POSTING
There are a few different parts to SB 1162. The first few parts impact employers of 100 employees or more. And then they slip this little tricky part in for employers of 15 or more, which is the zinger. So let’s separate them out.
For the employers of 100 or more, the new parts of the law really have to do with pay reporting. And since employers of 100 or more have already been required to gather employee data in order to complete EEO-1 reports, and those reports have increasingly been requiring more information every year, California figured this was just another pile on. Now, on top of all the information that employers must report about the EEO composition of their workforce, employers must report the median and mean hourly rates of their employees in those categories as well. There are additional requirements for employers who hire employees through what this bill calls “labor contractors,” but what really are just staffing companies. So if any of you use staffing companies, PEOs, temporary labor (and that is a LOT of you), you have additional work coming your way under this law. Yes, they are punishing you for making the choice to hire labor through these means. No, they still don’t trust it. They think you are trying to “hide behind corporate layers” to shield you from liability, and every year they pass another law to make sure you cannot do that and they will slap you for even trying.
Further, for employers of 100 or more, upon request by any employee, the employer must provide the “pay scale” for that employee’s position.
Now here is the really fun part. Employers of 15 or more must include the pay scale for any new job position for which it advertises. If the employer uses a recruiter or agency to do its hiring, that recruiter or agency must do the same on behalf of the employer. Failure to do so could subject the employer to civil damages and, wait for it, a Labor Code violation that could trigger penalties under Labor Code Sec 2699, otherwise known as PAGA exposure (you knew it, didn’t you?).
So this one won’t be so tough for filling your rank and file employees. But when you start getting to higher level employees in white collar industries, even like mine, this one is going to be very interesting. Will more employers try to hide the potato and go to compensation systems involving salary plus unspecified “bonuses?” And remember, if you have bonuses included in non-exempt employee compensation, you have all sorts of regular rate issues. So be careful being tricky.
I think this law will present many challenges for some employers. Or, will it force employers to think about standardizing their compensation system, which of course, was the intent of the bill.
AB 2188 – OTHERWISE KNOWN AS “DON’T TOUCH MY WEED!”
I can joke about this law a little, because we get to kick the can on it to 2024. And because, to be fair, we had to have some law come in and balance the fact that (a) marijuana has been legal in California now since 2016, and far longer than that for medical use, (b) it stays in the system FAR longer than alcohol or most other substances, legal or not, so its mere detection of an incremental amount during workplace testing does not at all necessarily indicate workplace use. The latter is why so many employers have been loathe to enforce or even implement drug testing for marijuana since 2016. It’s helped employers’ morale dilemma a little bit that so far, the drug is still illegal at the federal level, but now we have the Biden administration leaning toward changing that as well.
And yet, we all know that we still do not want employees impaired at work. And like with alcohol, we may have employees who legally have their nightly cocktail or glass of wine, employees should be able to nightly use their marijuana for their knee pain or to sleep, without the fear that they could test positive in a drug test the next day. Either would be different from employees drinking or lighting up at the work premises on a break, and then going back to work, which could be prohibited.
We will get into the “weeds” of this bill, and the policy language for the handbook, as we get closer to 2024.
Okay, that’s all she wrote, as they say. That’s a lot of content in one Briefing. As I said, we will be sending out the email flyer for the Employee Handbook Update and Labor Advisor Program for 2023 in just another week or two, so get ready. And for any of you who don’t have our Raines Feldman Employee Handbook and want to get in on the fun, this is the time to do it!
In the meantime, enjoy these lovely, cool fall evenings. And remember, there are people around us still struggling, including your employees, friends, and family. This year is almost over, and I am really hoping we can bring it to a close with a lot of extra gratitude for what we have all been through in the last three years. Remember to show a little extra grace with others when you can. And while you are at it, send some to yourself. It’s been a LONG and trying year, and especially for those of us in the human resources/people space – I SEE you. I know and appreciate all that you do. Don’t ever forget all that you carry.
Let’s bring this one home, my friends.
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