Wednesday, December 7, 2022


Top 10 Employment Law Changes for 2023

Things were a bit quiet over the past two years because California’s primary legislative focus was on the pandemic, but 2023 is bringing lots of changes for employers. Read below for our “cliff notes” version of the new laws and join us for a deeper dive, at one of our Labor Law Update trainings, online or onsite, to learn more about the 2023 new employment laws!

1. Pay Transparency. At the top of the list, impacting every employer in California is Senate Bill 1162 which ensures that all employers address the issue of pay inequity.

Key Take Aways:

  • All private employers with 100 or more employees must file pay data reports with the State’s Civil Rights Department, regardless of whether they are required to file a federal EEO-1 with the EEOC. The information required to be included in pay data reports must now include median and mean hourly rates within each job category by race, ethnicity, and sex. The bill also requires employers who have 100 or more employees hired through labor contractors to file a separate pay data report covering those employees.
  • Employers with 15 or more employees will now need to include pay scale information (salary or hourly wage range an employer reasonably expects to pay) in any job posting.
  • ALL Employers must provide a pay scale to any current employee for their position—upon request. All employers must also maintain records of a job title and wage rate history for each employee during employment and for 3 years after separation from the company.

2. FAST FOOD—FAST ACT. Assembly Bill 257 is aimed at the “fast food” industry—specifically, restaurants that are part of a chain of 100 or more establishments. However, the bill’s broad definition may include many other types of business beyond what most people would consider “fast food.”

Key Take Aways:

  • Fast Food Council: AB 257 will establish a Fast Food Council (FFC) within the Department of Industrial Relations through January 1, 2029. The FFC will be comprised of 10 appointed members to regulate wages, working hours, and safety/health requirements.
  • Covered Employers: The law will apply to those defined as fast food restaurants consisting of 100 or more establishments nationally that share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products, and services (i.e., including franchisees).
  • Anticipated Wage Raises: The FFC is authorized to set minimum standards on wages, which could be capped at $22 an hour for 2023 (and future limits are set annually at the lesser of 3.5% or the rate change set by the U.S. Bureau of Labor Statistics).
  • Anti-Discrimination/Retaliation: Prohibits covered employers from discharging, discriminating, or retaliating against an employee for defined protected activity, such as filing certain complaints, participating in FFC proceedings, or refusing to engage in health/safety violations. There is a rebuttable presumption of wrongdoing if the employer takes adverse action against the employee within 90 days after they have knowledge the employee engaged in protected conduct.
  • See CEA’s blog article for more information

3. Card Check for Agricultural Employees

California’s agriculture industry is one of the state’s largest economic drivers. AB 2183 essentially establishes a card check process for agricultural employees seeking to unionize—as opposed to a secret ballot election. This is a huge victory for labor unions.

Employers will now have two options: (1) They can agree to a labor peace compact, which means employees will be able to vote via mail-in ballots. However, the employer can’t make statements for or against the union and the employer cannot hold captive audience meetings with their employees. OR (2) The union can simply submit authorization cards signed by a majority of employees to be automatically certified, without an election.

4. Cannabis in the Workplace. With AB 2188, for the first time, there will be employment discrimination protections regarding the lawful use of cannabis outside of the workplace. However, this law is not in effect until January 1, 2024, so employers in California have a little time to prepare. AB 2188 basically says that employers cannot discriminate against an employee or applicant for using cannabis while off the job and away from the workplace. Employers will be able to test for THC (the chemical compound in cannabis that can cause impairment and detects use in the body within the last few hours) but not for cannabis metabolites which are stored in the body after THC is metabolized.

Good news for employers, the bill specifies that it does not permit an employee to possess or be “impaired” by cannabis on the job! And, there are exemptions—AB 2188 will not apply to an employee in the building and construction trades, will not preempt requirements for federal contracts, or interfere with specified employer rights to maintain a drug and alcohol-free workplace.

5. Bereavement Leave. Assembly Bill 1949 applies to employers with five or more employees and allows employees to take up to five days of bereavement leave upon the death of a family member, defined as spouse, domestic partner, child, parent, parent-in-law, sibling, grandparent, or grandchild.

Bereavement leave under AB 1949 is unpaid, but an employee is able to use other available paid time such as vacation pay, personal leave, sick leave, or compensatory time off. Bereavement leave must be completed within three months of the death of the family member and can be used intermittently (meaning employers cannot require it to be used all at once). It is only available to employees who have worked for the employer for at least 30 days prior to the commencement of the leave. And we encourage employers to request appropriate documentation—consistently. Employees have 30 days from the first date of leave to provide requested documentation, such as an obituary. Employers will want to update their employee handbooks!

6. Family Leave and Paid Sick Leave to Care for “Designated Persons”

In recent years, the California Family Rights Act (CFRA) has been extended to cover smaller employers and to expand the definition of covered family members to include adult children, siblings, grandparents, grandchildren, and parents-in-law. With AB 1041, CFRA coverage will be extended again, to allow an employee to take job-protected leave to care for a “designated person.” The bill expanded mandatory paid sick leave to include care for “designated persons” as well.

Key Take Aways:

  • Under CFRA, “designated person” means any individual related by blood or whose association with the employee is the “equivalent of a family relationship.” (And just to make things interesting for employers, the legislation does not clearly define what this means.) For paid sick leave, the definition is even more broad—a “person identified by the employee at the time the employee requests paid sick days.”
  • An employee may identify a “designated person” for CFRA and/or paid sick leave at the time they request leave, and employers may limit an employee to one designated person per 12-month period.

7. Emergency Conditions: In response to concerns over reports of employees being required to work in unsafe wildfire conditions, Senate Bill 1044 was born. This new law prohibits an employer, in the event of an “emergency condition,” from taking adverse action against an employee for refusing to report to, or leaving, a workplace or worksite because the employee has a “reasonable belief” that the workplace or worksite is unsafe.

Key Take Aways:

  • An “emergency condition” is defined to mean (1) conditions of disaster or peril caused by natural forces or a criminal act, or (2) an order to evacuate a workplace, worksite, a worker’s home, or the school of a worker’s child.
  • An “emergency condition” does not include a health pandemic—so SB 1044 will not be applicable to employees that claim the worksite is unsafe due to COVID-19.
  • Employers will want to consider updates to their cell phone policies because under this bill they will not be allowed to prevent employees from accessing mobile devices for seeking emergency assistance.

Ending our Top 10 list are three COVID bills since COVID is still with us.

8. California COVID-19 Supplemental Paid Sick Leave. For employers with 26 or more employees, AB 152 extends California’s COVID-19 supplemental paid sick leave (SPSL) through December 31, 2022. The law does not provide a new allotment of leave but extends the time employees have to use any remaining leave (of the available 80 hours) not already used this year. AB 152, was signed on September 29 as a budget trailer bill, which meant it went into effect immediately.

9. Extension of COVID-19 Notice Requirements

Assembly Bill 2693 revises and extends (until January 1, 2024) the statutory COVID-19 notice requirements requiring employers to provide notice to employees and others who may have been exposed to COVID-19 in the workplace, within one business day. It will allow employers (in lieu of individual notices) to simply post a notice in the workplace for 15 days when there has been a COVID-19 exposure. An employer may choose the posting or may continue to provide individual notices in the same general manner as previously required under the law.

10. COVID-19 Extension of Rebuttable Presumption for Workers’ Compensation

Previous legislation (SB 1159) established a rebuttable presumption that certain COVID-19 cases are work-related under certain outbreak circumstances, and required employers to provide information about COVID-19 cases to their workers’ compensation claims administrator. AB 1751 extends these requirements until January 1, 2024.

Source: California Employers Association