September 21, 2022

Eyes on Sacramento: California Legislative Update

Introducing: the California Civil Rights Department

No, this is not a new government agency. Rather, the Department of Fair Employment and Housing (DFEH) was rebranded as the Civil Rights Department, or CRD, to more accurately reflect the department’s powers and duties, which did not change. The CRD has a new website (the old DFEH website re-routes to the new website) and will be putting out new posters, guides, and fact sheets over the next year as they launch their public education campaign to inform Californians that the CRD is doing everything the DFEH was doing.

Actions for employers: While there are no immediate steps that employers need to take, they should consider whether to get ahead of the game and start updating their policies and handbooks to reflect this name change.

The Legislative Finish Line is in Sight – New Employment Laws on the Horizon

California’s legislative session ended on Aug. 31, 2022, and a slew of legislation was passed and presented to the governor, who has until Sept. 30 to do one of the following: (1) veto the bill, (2) sign the bill, or (3) approve the bill without signature. Of the many potential laws presented to the governor, we have identified three that deserve some early attention and two that have already been signed into law. Payne & Fears will continue to monitor the situation and issue additional legislative updates as necessary.

Pending California Legislation:

  • AB 152 – COVID-19 Supplemental Paid Sick Leave: This bill, which would take effect immediately upon being enacted, would, among other things, extend COVID supplemental paid sick leave to Dec. 31, 2022, make available grants for qualified small business or nonprofits that are incurring costs for COVID-19 supplemental paid sick leave, and allow businesses to exclude such grants from the calculation of “gross income” for tax purposes.
  • SB 1044 – No Retaliation During Emergency Condition: This bill, if enacted, would prohibit an employer, in the event of an “emergency condition” from: (1) retaliating against any employee for refusing to report to, or leaving, a workplace within the affected area because the employee feels unsafe; or (2) preventing an employee from accessing his or her cell phone or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm his or her safety. An “emergency condition” is defined to include: (a) conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or (b) an order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act—but is not defined to include a health pandemic.  This bill’s provisions do not apply to first responders, military personnel, disaster service workers, health care personnel, or employees at certain financial institutions, among many others.
  • SB 1162 – Reporting of Salaries and Wages: This bill, if enacted, would require private employers that have 100 or more employees that are required to file an annual EEO-1 (Employer Information Report) under federal law to file a separate and distinct report with the Civil Rights Department (formerly the Department of Fair Employment and Housing). The bill would expand the covered employers to include private employers with 100 or more employees hired through labor contractors and require employers with multiple establishments to file separate reports for each establishment, as opposed to a consolidated report as allowed by existing law. Employers also would be required to include the pay scale for a position in any job posting and provide current employees, upon request, with the pay scale for their current position.

Already-Enacted California Legislation:

  • AB 257 – Fast Food Accountability and Standards Recovery Act (or FAST Recovery Act): Effective Jan. 1, 2023, this new law establishes the Fast Food Sector Council within the Department of Industrial Relations, which will establish sector-wide minimum standards on wages, working hours, and other working conditions related to the health, safety, and welfare of, and supplying the necessary cost of proper living to, fast food restaurant workers, as well as effecting interagency coordination and prompt agency responses in this regard. The council’s determinations apply to establishments within a Fast Food Chain, which is defined as having 100 or more establishments nationally. This law also sets out the responsibilities and obligations between franchisor and franchisee as to the enforcement of, and responsibility for, the minimum standards.
  • AB 2188 – No Discrimination for Use of Cannabis: Effective Jan. 1, 2024, this new law makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based upon the person’s use of cannabis off the job and away from the workplace, or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their urine, hair, or bodily fluids. This new law specifies that these provisions do not apply to employees in the building and construction trades, and that they do not preempt state or federal laws requiring employees to be tested for controlled substances.