By: Roger M. Mason, Esq., Rachael E. Brown, Esq., Caitlin E. Kaufman, Esq.
Minimum Wage Increase
As of January 1, 2024, minimum wage increases to $16.00/hour. This is a good time to check your exempt employee salaries to ensure that they meet the new minimum threshold of $66,560 per year.
Off-Duty Cannabis Use/Testing
AB 2188 prohibits employers from discriminating against employees for off-duty cannabis use. This means that employers can no longer rely on drug testing that identifies non-psychoactive metabolites, but rather must use testing that identifies actual impairment. As of the date of this article, there are not any drug tests available that meet this criterion.
Employers can still require a drug-free and alcohol-free workplace and may prohibit employees from possessing, being impaired by, or using marijuana on the job. Employees in the construction and building trades are not covered by AB 2188.
Employer takeaway: review and update drug testing policies and procedures. Contact your testing lab to ensure compliant testing.
No Automatic Stay During Arbitration Appeal
Effective January 1, 2024, a party appealing an order denying a motion to compel arbitration (generally the employer) is not entitled to an automatic stay. The court has the discretion to order one, but it is no longer mandatory. This means that employers may be forced to continue defending claims arguably subject to arbitration while they appeal the order.
Employer takeaway: ensure that your arbitration policies are governed by the Federal Arbitration Act (FAA) rather than the California Arbitration Act (CAA) to take advantage of any argument that federal law controls.
Rebuttable Presumption of Retaliation
The Equal Pay and Anti-Retaliation Protection Act creates a rebuttable presumption of retaliation if an employee is disciplined or discharged within ninety (90) days of engaging in certain protected activity (such as filing a claim, complaining to Human Resources, testifying on behalf of another employee, etc.) Employers must be able to establish a legitimate, non-retaliatory reason for the discipline/discharge.
Employer takeaway: review and update discipline policies to emphasize documentation of performance issues.
Workplace Violence Prevention Program
Section 6401.9 requires virtually all employers to implement a Workplace Violence Prevention Plan ("WVPP") by July 1, 2024. These are structured similarly to Injury and Illness Prevention Plans and require employers to (1) designate a person responsible for implementing the plan; (2) identify and correct hazards through periodic inspections; (3) train employees on hazards; (4) maintain records of incidents.
Employer takeaway: develop and implement a WVPP that is narrowly tailored for your workplace, as each business/job site will have unique threats and hazards.
Paid Sick Leave
SB 616 expands California's Healthy Workplaces, Healthy Families Act ("HWHFA") and increases the minimum number of paid sick leave days per year to 40 hours/5 days (whichever affords the employee more leave). Employees covered by a valid collective bargaining agreement ("CBA") are exempt, provided the CBA meets certain conditions: (1) expressly provides for the employees' wages, hours, and working conditions; (2) expressly provides for paid sick days, paid leave, or paid time off; (3) requires final and binding arbitration of disputes concerning paid leave; (4) provides premium wage rates for all overtime hours worked; and (5) establishes a regular hourly rate of pay of at least 30% more than the state minimum wage. It is important to note that the procedural and anti-retaliation provisions of the HWHFA do apply to all employees, including those covered by a CBA. Construction industry CBAs with a clear and unmistakable waiver remain exempt from the paid sick leave law.
Employer takeaway: confirm if there is a CBA that exempts covered employees; update paid sick leave banks for non-covered employees.
Wage Theft Notice
Employers must roll out updated Wage Theft Notices and include information about any federal or state emergency/disaster declaration issued within 30 days before hire that applies to the county or counties in which the employee will work. The Labor Commissioner has prepared a new 2810.5 notice template to meet the new requirements. These notices are not required for employees covered by a valid CBA.
Employer takeaway: review 2810.5 notices for all non-covered employees.
30 Days' Notice to Return to Work In Person
Employers must now provide at least 30 days' notice before requiring an employee to return to work in person. The notice must include certain language regarding the employee's right to request remote work as an accommodation for a disability.
Employer takeaway: review return to work procedures.
No Non-Compete Agreements
SB 699 strengthens California's restrictions on non-compete agreements and other restrictive covenants. Effective January 1, 2024, non-compete agreements are unenforceable and void, regardless of where the agreement was signed or where the employee worked at the time the agreement was signed. This marks a big departure from the previous standard, which permitted non-competes if they were valid in the jurisdiction where the agreement was signed.
By February 14, 2024, employers must notify current and former employees employed after January 1, 2022 that any non-compete clauses previously signed are void. Each notice must be individualized and delivered to the individual's last known address and email address.
Employer takeaway: review employment agreements carefully and update to remove any invalid non-compete clauses; notify current and former employees of void provisions.
Reproductive Loss Leave
Effective January 1, 2024, employers with five (5) or more employees must provide qualified employees with up to five (5) days of unpaid job-protected leave following a "reproductive loss event." This is defined as the day, or for multiple day events, the final day, of a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. Employers may not request documentation of the event. Leave need not be used consecutively, but must be used within three months of the reproductive loss event. Each employee is limited to a maximum of twenty (20) days over a 12-month period if multiple reproductive loss events occur. Employees must be permitted to use sick, vacation, or other paid time off.
Employer takeaway: add a reproductive loss leave policy to the employee handbook.
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For more information about any of these employment legal updates, please contact our employment team at 408-356-3000 or via email: Roger Mason at rmason@smllp.com, Rachael Brown at reb@smllp.com, or Caitlin Kaufman at ckaufman@smllp.com.
The information provided in this publication is general in nature and is not intended to answer every question that may arise under different fact situations and should not be relied on in the place of professional advice in a given case. If you have specific questions, please contact Sweeney Mason LLP.
SWEENEY MASON LLP is a Limited Liability Partnership located at 983 University Avenue, Suite 104C, Los Gatos, California, 95030, telephone (408) 356-3000. This notice is designed to assist our clients and other business owners in spotting issues which may result in costly litigation and court awarded damages if allowed to continue unaddressed.
SWEENEY MASON LLP’s philosophy is that by educating our clients, and other businesses, about their legal obligations, including changes in the law, we best serve our legal goal of minimizing or preventing expensive litigation.