Each new year brings new employment laws for California employers and 2023 is no different. Below is a summary of the most significant compliance obligations raised by these laws, which took effect January 1, 2023, unless otherwise noted.

NEW LEAVE LAWS (AB 1041, AB 1949, SB 1044)

• The new “chosen family” designation for leave purposes has been incorporated into the California Family Rights Act (CFRA) and Paid Sick Leave (PSL). Effective January 1, 2023, care for non-family designated individuals will be treated similarly (with some restrictions) as family members for purposes of protected leave allowable pursuant to the CFRA and PSL.

• Employees who have accumulated 30 days of service can take five days of “bereavement leave” within 30 days of the death of a family member. Employers must grant the leave but may request documentation to establish the death.

• Employers may not take “adverse action” against an employee if, based on a fear of an unsafe condition, the employee refuses to work or leaves the workplace. Additionally, the employer may not prevent the employee from using their mobile phones during such an emergency. An emergency is defined as disaster or “extreme peril” but does not include a “pandemic.”

NEW PAY REPORTING DISCLOSURE AND REPORTING REQUIREMENTS (SB 1162)

• Employers with fifteen or more employees must include in job posting notices the pay scale for the position. In addition, the new law requires the employer to provide the pay scale to an employee upon “reasonable” request.

• Employers must keep records of pay and job titles for every employee for three years after termination and permit inspection of these records by the Labor Commissioner.

• Employers with one hundred or more employees must submit pay data, previously reported to the state in the annual, federal EEO-1 form, in a separate document with categories for mean and median hourly rates for employee categories of race, ethnicity, and sex.

• Employers with one hundred or more employees who utilize labor contractors have new pay reporting requirements for the pay rates and identities of the contractors.

OFF SITE CANNABIS USE PROTECTION (AB 2188)
Starting on January 1, 2024, employers may not discriminate against employees who engage in cannabis use during non-work hours. Additionally, employees are also protected if they fail a drug test for “non-psychoactive” metabolites in blood, hair, or bodily fluids. Employers can still maintain drug free work sites and discipline “impaired” employees.
 
EXTENSION OF SEXUAL ASSAULT STATUTE OF LIMITATION
Claims of sexual assault may be asserted until December 31, 2023 against relevant individuals and employers even if otherwise barred by a statute of limitation. In order to bring the claim, the event must have occurred on or after January 1, 2009, and the attorney bringing the action must provide a written declaration stating a mental health practitioner was consulted and the claim value of the case exceeds $250,000.
 
PROHIBITION OF MANDATORY ARBITRATION CLAUSES IN EMPLOYMENT AGREEMENTS UNCLEAR
The U.S. Supreme Court ruled in Viking River Cruises, Inc. v. Moriana that California Private Attorneys General Act (PAGA) claims are subject to arbitration. The SCOTUS opinion reversed the California Supreme Court decision in Iskanian v. CLS Transportation Los Angeles which previously held PAGA claims were not subject to arbitration. After the Viking River Cruise decision, the Ninth Circuit Court of Appeals withdrew its decision in Chamber of Commerce v. Bonta which held, in a 2-1 opinoin, to affirm AB 51 which effectively prevented employers from compelling employees to sign arbitration agreements as a condition of employment. The end result leaves the status of AB 51 unresolved. AB 51 remains in force but remains subject to the outcome of the Chamber of Commerce case.
 
INDUSTRY SPECIFIC DEVELOPMENTS

• Agricultural workers will be able to vote for a union with the use of a “card check.” In 2023, workers can establish a union for providing a card indicating they want union representation. If a majority of the employees submit such cards, a union can be formed without an election.

• A “Fast Food Council” is created to set minimum standards for wages, health, and related matters for employees in fast food industries.

• CalWARN statute is amended to expand notice requirements for call center employees.

Employers are encouraged to prepare for the changes now. To ensure legal compliance with these new obligations or discuss your business’ options, please do not hesitate to contact our firm.

Paul H. Duvall, Esq., is Of Counsel to Sullivan Hill and a member of the firm’s Commercial and Business Litigation and Employment Law practice groups. Mr. Duvall’s practice is focused in the areas of employment and labor matters as well as wage and hour issues. He can be reached at duvall@sullivanhill.com.

About Sullivan Hill

Sullivan Hill has provided efficient, aggressive and responsive legal representation for more than 50 years. The firm provides full service representation to clients in a variety of industries with an emphasis in insolvency, construction disputes, insurance coverage, real estate, business disputes, civil litigation, and transactional work.  The firm has offices in San Diego and Las Vegas. More info can be found at http://www.sullivanhill.com