The new year will bring with it many new employment laws that will affect California employers. Below is a summary of some of the most significant changes that will take effect on January 1, 2023, unless otherwise indicated.
Pay Scale Information in Job Postings – Senate Bill 1162
Employers with 15 or more employees (including part-time and full-time employees) must include pay scale information in all job postings. “Pay scale” information is defined as “the salary or hourly wage range that the employer reasonably expects to pay for the position.” Benefits and other forms of compensation are not included in the definition of “pay scale.” If an employer uses a third party to publish job postings, the employer must provide the information to the third party who must include the information in the posting.
Pay Scale Information for Current Employees and Applicants – Senate Bill 1162
All California employers, regardless of size, must make pay scale information available to current employees and applicants who ask for it. An applicant may request the pay scale for the position to which the applicant applied, and an employee may request the pay scale for the position in which the employee is currently employed. Employers must also maintain pay information and job titles of every employee for the entirety of their employment, plus three years after the end of their employment.
Additional Pay Data Reporting for Employers with 100 or More Employees – Senate Bill 1162
Employers with 100 or more employees must file an annual pay data report (Employer Information Report (EEO-1)) containing information about the race, ethnicity, and sex of their workforce in specified job categories. Under Senate Bill 1162, California employers must also report the “median and mean hourly rate” within each job category. Senate Bill 1162 also changes the pay data reporting due date to the second Wednesday of May 2023, and each year thereafter on or before the second Wednesday of May.
Minimum Wage Increase, Exempt Salary Increase, and Computer Professional Salary Increase
On January 1, 2023, the California minimum wage will increase to $15.50 per hour for all employers, regardless of the number of employees. This will affect the exempt salary threshold as well, requiring employees who are treated as exempt to earn at least $64,480 per year (two times minimum wage for full-time employment). Many cities/counties have enacted their own minimum wage ordinances that are greater than the state minimum wage as well. A helpful inventory of local minimum wage laws can be found here:
https://laborcenter.berkeley.edu/inventory-of-us-city-and-county-minimum-wage-ordinances/
The Department of Industrial Relations has also adjusted the computer software employee’s minimum hourly rate of pay exemption from $50.00 to $53.80, the minimum monthly salary exemption from $8,679.16 to $9,338.78, and the minimum annual salary exemption from $104,149.81 to $112,065.20 effective January 1, 2023. The DIR’s guidance on the overtime exemption for computer software employees can be found here:
https://www.dir.ca.gov/oprl/ComputerSoftware.htm
Mandated Bereavement Leave – Assembly Bill 1949
All private employers with five or more employees will be required to provide up to five days of unpaid bereavement leave following the death of a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. Assembly Bill 1949 amends the California Family Rights Act (CFRA) by providing unpaid bereavement leave in addition to the 12 weeks of leave employees are entitled to receive under the CFRA. In order for an employee to be eligible for rights under this new law, the employee must have worked for the employer for at least 30 days. The bereavement leave may be taken intermittently or all at once, must be completed within three months of the family member’s death, and the employer may require documentation to establish the need for bereavement leave. Employees may elect to substitute paid sick leave, accrued vacation or other time off for the bereavement leave.
Paid Sick Leave/CFRA Leave to Care for a “Designated Person” – Assembly Bill 1041
Under newly enacted Assembly Bill 1041, employers must allow employees to use the paid sick leave provided under California’s paid sick leave law to care for a “designated person.” This “designated person” is defined under the California Healthy Workplaces, Healthy Families Act of 2014 (HWHFA) as “a person identified by the employee at the time the employee requests paid sick days.”
Employees eligible to take time off under the CFRA must also be permitted to use their CFRA leave to care for a “designated person.” Under the CFRA, the definition of a “designated person” differs slightly and is defined as, “any individual related by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave.” Because the definitions for “designated person” are different, that may result in protected time off to care for different individuals. In either case, an employer may limit an employee to a single “designated person” per 12-month period under the CFRA and one single “designated person” per 12-month period under the HWHFA.
No Discrimination Based on Reproductive Health Decision Making – Senate Bill 523
Senate Bill 523 amends the Fair Employment and Housing Act (FEHA) to make it unlawful to discriminate against an employee or applicant based upon their “reproductive health decision-making.” This refers to an individual’s use of contraceptives, abortion, or other drug, device, or product related to reproductive health and also prohibits an employer from requiring an employee or applicant to disclose information related to the individual’s reproductive health decision making.
California Privacy Rights Act (CPRA) Amends the California Consumer Privacy Act (CCPA)
Employers who are covered by the CPRA must comply with certain obligations pertaining to their employees, job applicants, and independent contractors. These obligations include (1) notifying applicants, employees, and contractors about the categories of personal information that are collected by the employer, describing the purposes for collection and disclosure of the information, and providing information regarding the sharing and retention of the personal information, (2) rights to access or restrict the use or disclosure of certain categories of personal information, (3) rights to correct or delete personal information, and (4) rights to request the personal information that has been collected about the individual during the last year.
The CPRA applies to California for-profit businesses who: (1) have gross annual revenue of more than $25 million, (2) buy, sell, and/or share personal information of 100,000 or more California residents or households, or (3) derive 50% or more of their annual revenue from selling or sharing consumers’ personal information. Any entity that (1) controls or is controlled by a business subject to the CPRA, (2) shares common branding with the business, and (3) with whom the business shares consumers’ personal information, is also subject to the CPRA.
Employer Restrictions in Emergency Conditions – Senate Bill 1044
Senate Bill 1044 prevents an employer from taking action against an employee in the event of an “emergency condition” and when an employee has a “reasonable belief that the workplace is unsafe.” It also prohibits an employer from preventing an employee from accessing a mobile device to get emergency assistance or to assess the safety of a situation or communicate with someone to verify safety.
An “emergency condition” does not include a pandemic but is defined to mean (1) a condition 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 (2) 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. This law does not apply to certain employees, such as those who work as first responders, in certain healthcare facilities, or disaster service workers.
Cal/OSHA Posting Requirements – Assembly Bill 2068
Assembly Bill 2068 expands employers’ existing obligation to post citations and orders issued by Cal/OSHA. Beginning January 1, 2023, the posted citations/orders must be displayed in the top seven non-English languages used by limited-English-proficient adults in California, as determined by the most recent American Community Survey by the United States Census Bureau.
DFEH Now Referred to as CRD – Senate Bill 189
On July 1, 2022, Senate Bill 189 changed the name of the Department of Fair Employment and Housing (DFEH) to the Civil Rights Department (CRD). The intent of the change is to more accurately reflect the CRD’s powers and duties. Employers should review all government-provided postings and pamphlets to ensure that they have the most up-to-date versions where applicable reflecting the name of the CRD rather than DFEH.
No Discrimination Based on Off-Duty Cannabis Use – Assembly Bill 2188
Effective January 1, 2024, California law will protect the use of cannabis off the job and away from the workplace under Assembly Bill 2188. This means that California employers will no longer be allowed to discriminate against an employee or applicant based on their use of cannabis outside of work, in accordance with changes made to the California Fair Employment and Housing Act. Essentially, it will be unlawful for a California employer to discriminate against an employee or applicant in hiring, termination, or any term or condition of employment if the decision is based on the use of cannabis off-duty and away from the workplace. However, employers may still take action to prevent employees from being impaired by cannabis while at work. Employers in the building and construction trades, and those who are subject to mandatory federal background checks, are exempt from this new law.
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