Category: Litigation

As 2024 quickly approaches, so, too, do many new obligations and restrictions for employers with California employees.

Below, we summarize significant changes to hiring and workforce management, litigation, wage and hour, and other California employment laws taking effect in the new year.

Unless otherwise noted, all new laws discussed below will be effective as of January 1, 2024.

HIRING & WORKFORCE MANAGEMENT

Restrictive Covenants

California has long been the nation’s leader in limiting employers’ use of restrictive covenants. SB 699 and AB 1076 make the California Business and Professions Code (the “B&P Code”), which generally voids restrictive covenants in California, even stricter.

As we previously reported, SB 699 broadens the B&P Code by adding a new Section 16600.5 that:

• provides that any agreement void thereunder is also unenforceable in California regardless of where and when the agreement was signed;
• makes it explicitly unlawful for employers to attempt to enforce or enter into a noncompete agreement (rather than simply voiding such agreements); and
• grants current, former, and prospective employees a private right of action against employers that attempt to enforce or enter into a noncompete agreement.

AB 1076 further builds on these prohibitions by creating a new Section 16600.1, which makes it unlawful for employers to include noncompete clauses in employment agreements or to require an employee to enter into a noncompete. In addition, as we detailed here. As noted above, prior to these amendments, the B&P Code only voided such restrictive covenants.

AB 1076 also establishes a new notice obligation with which employers must comply by February 14, 2024. Specifically, employers must notify current and former employees who were employed after January 1, 2022, and are subject to an unlawful noncompete, that such agreement or clause is void. This notice requirement also extends to remote employees (current or former) who reside in California, even if the employer has no physical presence in California, as well as former employees who did not work in California during their employment but have since moved there.

Discrimination Protections for Off-Duty Cannabis Use

For the second year in a row, California enacted new employment protections for cannabis users under the state’s Fair Employment and Housing Act (FEHA). As we outlined here, last year’s AB 2188 amended FEHA to prohibit discrimination on the basis of off-duty, off-site use of cannabis, as well as on the basis of testing positive for the presence of non-psychoactive cannabis metabolites in an employee’s or applicant’s hair, blood, or bodily fluids.

SB 700 builds on these protections by further amending FEHA to prohibit employers from inquiring about applicants’ past cannabis use. Importantly, the law exempts from coverage situations in which an employer is permitted under state or federal law to obtain information about an applicant’s prior cannabis use from the person’s criminal history. Moreover, the law does not preempt state or federal laws requiring employers to test applicants or employees for controlled substances. Both SB 700 and AB 2188 will take effect at the start of the new year.

Anti-Retaliation Protections

California law provides applicants and employees who engage in certain protected activities with a variety of anti-retaliation protections. SB 497 further expands these protections by creating a rebuttable presumption of retaliation if an employer disciplines or takes adverse action against an employee or applicant within 90 days of the employee or applicant engaging in conduct protected by California Labor Code §§ 98.6, 1102.5, and 1197.5. This protected conduct includes, but is not limited to:

• complaining about unpaid wages;
• complaining about unequal pay violations, including being paid at wage rates less than the rates paid to an employee of the “opposite sex”;
• disclosing the employee’s own wages;
• discussing the wages of others;
• inquiring about another employee’s wages;
• aiding and encouraging another employee to exercise their rights under the law; and
• whistleblowing.

Employers may rebut this presumption by establishing that there was a legitimate, non-retaliatory reason for the adverse action.

Paid Sick Leave

As we previously reported, this fall, the California Legislature amended and expanded employers’ paid sick time obligations under the Healthy Workplaces, Healthy Families Act (HWHFA). The overall structure of the HWHFA remains the same, but as of January 1, 2024, SB 616 increases the amount of paid sick time that employers must provide— from three days or 24 hours to five days or 40 hours. Importantly, employers may still choose either to front-load and offer a block grant of paid sick time at the beginning of each year or to use an accrual-based method. As before, with an accrual-based policy, all unused time carries over from year to year.

For accrual-based policies, SB 616 also does the following:

• increases the cap of paid sick leave that employees can use each year from three days or 24 hours to five days or 40 hours;
• increases the cap of the total amount of paid leave an employee may accrue from six days or 48 hours to 10 days or 80 hours; and
• requires that employees accrue paid sick leave at either (1) no less than one hour for every 30 hours worked or (2) an alternative rate under which employees accrue (and are allowed to use) no less than three days or 24 hours of paid sick leave by the employee’s 120th calendar day of employment and no less than the greater of five days or 40 hours of paid sick leave by the employee’s 200th calendar day of employment.

To help employers comply with their new obligations under SB 616, the California Labor Commissioner’s office recently updated its “California Paid Sick Leave: Frequently Asked Questions” guidance and published an updated Paid Sick Leave poster and employee notice.

Leave for a Reproductive Loss

SB 848 creates protected leave for eligible employees who experience a “reproductive loss.” The new law applies to employers with five or more employees, and eligible employees are those who have been employed for at least 30 days prior to the leave. Employers must grant eligible employees up to five days of leave following a reproductive loss. The law broadly defines “reproductive loss” and includes failed adoption, failed surrogacy, miscarriage, stillbirth, and unsuccessful assisted reproduction. Similar to bereavement leave, which the California Legislature enacted in 2023, reproductive leave days must be taken within three months of the loss but do not have to be taken consecutively. Reproductive loss leave is not required to be paid, but it can be paid under the employer’s existing applicable paid time off policies, such as vacation, personal leave, or sick leave.

Workplace Violence Prevention Plans

Current California Division of Occupational Safety and Health (“Cal/OSHA”) regulations require employers to adopt an Injury and Illness Prevention Program (IIPP). SB 553 requires virtually all California employers to have in place by July 1, 2024, a written Workplace Violence Prevention Plan as a stand-alone section in their IIPP or as a separate document. Importantly, employers already covered by Cal/OSHA’s Violence Prevention in Health Care standard (the “Cal/OSHA Health Care Standard”) are excepted from SB 553’s scope, given that the Cal/OSHA Health Care Standard already requires such employers to establish, implement, and maintain workplace violence prevention plans.

SB 553 outlines several specific requirements for the Workplace Violence Prevention Plan, including detailing how the employer responds to any threat or act of violence that occurs in the workplace, procedures to identify and evaluate workplace hazards, and procedures for employees to report violent incidents or threats of violence. Employers must also provide specific training on the Workplace Violence Prevention Plan to employees, including an initial training when the Workplace Violence Prevention Plan is first established and then annually thereafter. Moreover, employers are also required under SB 553 to maintain training records and a violent incident log, which identifies, among other things, where and when a violent incident occurs, the type of violence that occurred, and a description of the incident.

Along with SB 428, beginning January 1, 2025, SB 553 also adds several new protections to the process through which employers may seek temporary restraining orders (TROs) and injunctions on behalf of an employee, including:

• allowing TROs and injunctions to be sought not only when an employee is subjected to violence or threats of violence but harassment as well, and
• authorizing collective bargaining representatives to seek TROs and injunctions on behalf of employees.

LITIGATION

No More Automatic Stay During Appeal of Motion to Compel Arbitration

SB 365 amends the California Code of Civil Procedure to state that trial court proceedings will no longer be automatically stayed when a party appeals an order denying a petition to compel arbitration. Under SB 365, beginning in the new year, courts are permitted to exercise discretion as to whether to stay trial court proceedings while an appeal is heard. This is significant because should a court determine that a stay is not warranted, an employer may be forced to continue defending itself in court from claims that may yet ultimately be subject to arbitration if the employer’s appeal is successful.

Privileged Communications Regarding Sexual Assault, Harassment, or Discrimination

Current California law makes certain publications and communications privileged, meaning that individuals who make the communications may be protected from liability for libel and slander. Included among these privileged communications are those related to sexual harassment. As such, if an employee makes a complaint of sexual harassment, without malice, to an employer, California law provides that the employee may not be liable for making such complaints.

AB 933 expands the types of communications that are privileged from liability to include communications regarding:

• sexual assault;
• sexual harassment;
• an act of workplace harassment or discrimination, failure to prevent an act of workplace harassment or discrimination or an act of retaliation against a person for reporting workplace harassment or discrimination; and
• an act of cybersexual bullying.

Individuals who have made such a communication may assert the privilege to bar liability if they are sued for making defamatory statements based on their own experience as victims of such incidents. In addition, such individuals may recover attorneys’ fees and costs, treble damages, and punitive damages if they prevail in a suit for defamation.

WAGE & HOUR

Wage Theft & Misclassification

AB 594 temporarily authorizes prosecutors through January 1, 2029, to pursue civil or criminal actions against employers that violate California Labor Code provisions related to wage theft and misclassification. Courts can grant prosecutors, including city, county, and state prosecutors, the Attorney General, and district attorneys, money damages (which must first be applied to employee payments), injunctive relief, and reasonable attorneys’ fees and costs that the Labor Commissioner would be entitled to seek. In addition, AB 594 clarifies that with respect to prosecutorial actions, any agreement between an employee and employer that purports to limit representative actions or to mandate private arbitration will not apply.

Minimum Wage

California’s minimum wage rate will increase to $16.00 per hour for all employers, regardless of size. This increase from $15.50 per hour is a result of an inflation adjustment made pursuant to Labor Code § 1182.12, which requires the California Director of Finance to calculate and increase the minimum wage depending upon the U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers.

This increase also affects wage and hour exemptions that are based upon a salary floor that is two times the state minimum wage, such as the administrative, professional, and executive exemptions. As such, beginning January 1, 2024, the minimum salary threshold for these exemptions will increase to $66,560 per year.

Additionally, the minimum compensation threshold for the computer software exemption, which is not tied to the minimum wage rate like the administrative, professional, and executive exemptions, will also increase in 2024. For salaried employees, this threshold will be $115,763.35 per year. For hourly employees, this threshold will be $55.58 per hour. Employees must also continue to meet the applicable duties test to qualify for an exemption.

As a reminder, municipalities also continue to set local minimum wages that are higher than the state requirement.

Wage Notices

AB 636 amends the notice requirements for the Wage Theft Prevention Notices that employers must provide to nonexempt employees in California. In addition to the previously required information, such as rate of pay, regular payday, and right to paid sick leave, AB 636 requires that wage notices also contain information about the existence of a federal or state-declared emergency in the county where the employee is to be employed if it was issued within 30 days before the employee’s first day of work and may affect the employee’s health and safety during employment. The California Department of Industrial Relations has published a template that reflects this newly required information, as well as the amended paid sick leave requirements under SB 616.

In addition, AB 636 adds information required in notices for employees in California under an H-2A agricultural visa. This includes information describing employees’ rights and protections, including the right to meal and rest periods, transportation travel time, and employee housing rights. This new information for agricultural visa workers must be included in the wage notice starting March 15, 2024.

INDUSTRY-SPECIFIC AND OTHER BILLS

Health Care

SB 525 establishes new minimum wage rates for covered health care employees at covered health care facilities as of June 1, 2024. The law defines these terms as follows:

• “Covered health care facilities” include, but are not limited to, facilities part of an integrated health care delivery system, acute care hospitals, acute psychiatric hospitals, special hospitals, licensed skilled nursing facilities (if owned, operated, or controlled by a hospital, integrated health care delivery system, or health care system), licensed home health agencies, outpatient clinics of hospitals, community clinics, urgent care clinics, physician groups, county correctional facilities that provide health care services, and ambulatory surgical centers certified to participate in Medicare.
• “Covered health care employees” are those who provide patient care, health care services, or services supporting the provision of health care. They include contracted or subcontracted employees under certain circumstances.

The relevant minimum wage rate varies under the law depending on which of four tiers the covered health care facility falls within. For example, covered health care facilities with at least 10,000 full-time employees fall within the first tier of SB 525, so the minimum wage for these facilities’ covered health care employees is as follows:

• From June 1, 2024, to May 31, 2025, inclusive, $23 per hour;
• From June 1, 2025, to May 31, 2026, inclusive, $24 per hour; and
• From June 1, 2026, and until adjusted below, $25 per hour.

Additional information regarding the four tiers, including which covered health care facilities are included therein and the minimum wage schedule applicable thereto, is available here.

Fast Food

Last year, California revolutionized the fast food industry when it adopted AB 257, also known as the Fast Food Accountability and Standards Recovery Act (the “FAST Recovery Act”). As of January 1, 2023, the FAST Recovery Act was supposed to create, among other things, a Fast Food Council responsible for establishing and implementing binding minimum standards for wages, hours, training, and working conditions. However, a court order stayed the law from taking effect late last year pending the outcome of a voter referendum scheduled for November 2024 (the “Referendum”).

This year, legislators worked with fast food industry and labor union representatives to reach a compromise in the form of AB 1228, which raises the minimum wage for fast food workers and significantly modifies the FAST Recovery Act. Provided that its supporters withdraw the Referendum by January 1, 2024, AB 1288, until January 1, 2029, repeals the FAST Recovery Act and establishes a Fast Food Council with more limited authority to recommend employment regulations. AB 1228 also eliminates provisions in the prior law regarding joint liability for fast food franchisors for their franchisees’ civil liability for employment law violations.

In addition, beginning April 1, 2024, AB 1228 raises the minimum wage rate for fast food workers in the state to $20 per hour. Beginning January 1, 2025, AB 1228 authorizes the Fast Food Council to establish annual minimum wage increases through January 1, 2029, up to 3.5 percent or the rate of change in the U.S. Consumer Price Index for Urban Wage Earners and Clerical Workers, whichever is lower. The law also preempts local municipalities from establishing higher minimum wage rates for fast food restaurant employees specifically; however, local municipalities are still permitted under the law to establish a higher minimum wage that is generally applicable to all industries.

Importantly, AB 1228 applies to “national fast food chains,” which the law defines as limited-service restaurants that share a common brand or are characterized by standard options for décor, marketing, packaging, products, etc., and are primarily engaged in providing food and beverages for immediate or off-premises consumption.

Hospitality and Business Service Providers

In the spring of 2021, California enacted legislation (SB 93) requiring covered employers in the hospitality and business services industry to notify and offer to rehire qualified former employees who were laid off during the COVID-19 pandemic. “Covered employers” include hotels or private clubs with 50 or more guest rooms, airports, airport service providers, event centers, and, in certain situations, retail and commercial buildings. Under SB 93, eligible employees are only entitled to these recall rights through December 31, 2024.

SB 723 broadens the scope of employees’ recall rights under SB 93 in three important ways. First, SB 723 expands the definition of “laid-off employees” who are entitled to recall rights. Under SB 93, “laid-off employees” are those workers: (1) who were employed by their employer for at least six months during the 12-month period before January 1, 2020, and (2) whose most recent separation from active service was due to the pandemic. Under SB 723, “laid-off employees” are those workers: (1) who were employed by their employer for at least six months; (2) whose most recent separation from active employment occurred on or after March 4, 2020; and (3) whose most recent separation from active employment was due to the pandemic.

Second, SB 723 establishes a presumption for determining whether a separation from active employment is “due to the pandemic.” Under the new law, separations due to a lack of business, a reduction in force, or other economic/non-disciplinary reasons will be presumed to be a result of the pandemic.

Finally, SB 723 extends the law’s sunset from December 31, 2024, to December 31, 2025.

WHAT EMPLOYERS SHOULD DO NOW

• Consult with counsel regarding agreements with current and former employees to determine whether any contain any unlawful restrictive covenants. Revise any such agreements, as necessary, to comply with SB 699 and AB 1076.
• Identify any current employees or former employees who were employed after January 1, 2022, who may be subject to an unlawful noncompete provision, and send them a compliant notice under AB 1076 by February 14, 2024.
• Seek advice from counsel before attempting to enforce restrictive covenants against current, former, or prospective employees in California.
• Review drug-screening policies and practices to ensure that you do not screen for non-psychoactive cannabis metabolites except as explicitly permitted under AB 2188.
• Review interview, onboarding, and hiring policies and practices to ensure that you do not inquire about an applicant’s past cannabis use unless specifically permitted under SB 700.
• If not already in place, adopt a compliant Workplace Violence Prevention Plan or update your IIPP to include the same.
• Train employees regarding the Workplace Violence Prevention Plan and implement a process for maintaining relevant training and compliance records and a violent incident log.
• Ensure there is a robust system for documenting any disciplinary or other adverse action taken against employees in light of the rebuttable presumption established under SB 497.
• Review and revise leave of absence policies and practices to add protected time off for reproductive loss, and train managers and human resources personnel to appropriately respond to and track this leave.
• Update paid sick leave policies to comply with SB 616, post the Labor Commissioner’s updated paid sick leave poster, and distribute the Labor Commissioner’s updated employee notice.
• Review hourly wage rates for nonexempt employees and salary levels for employees who are exempt under the professional, administrative, and executive exemptions to ensure they continue to meet new wage requirements.
• Prepare to use the updated Wage Theft Prevention Notice template (or revise your current notice if not using the template) for nonexempt employees hired on or after January 1, 2024.
• If you are an employer in the health care sector, fast food, or hospitality/business services, review your policies and practices to ensure that they comply with the new industry-specific laws.