In October 2023, California’s Governor signed Assembly Bill (AB) 1076 which added the new Business & Professions Code §16600.1, making it unlawful to impose non-compete clauses on employees – which contractual restrictions already are void under Business & Professions Code §16600.

Under AB 1076, employers must notify current employees and former employees (employed after January 1, 2022), that any noncompete agreement or noncompete clause contained within an agreement the current or former employee signed is void unless the agreement or clause falls within one of the statutory exceptions set forth in Business and Professions Code section 16600, et seq. The notices must be an individualized written communication to the employee or former employee, delivered to the last known address and email address the employee provided to the employer.

The changes to the law took effect on January 1, 2024, but employers have until February 14, 2024, to provide the required notices under the statute.

If you have questions about the notice requirements under AB 1076 or related issues, contact a Jackson Lewis attorney to discuss.

California’s pay data reporting portal will open on February 1, 2024, and employers will be required to report on three new data points.

Since 2020, California has mandated that employers with at least 100 employees submit a pay data report to the state Civil Rights Department (CRD) as part of its efforts to advance fair pay. The reporting requires annual submissions detailing pay and hours worked for employees in California, or who are a part of a California establishment, categorized by establishment, job category, race/ethnicity, and sex.

In 2022, the reporting requirements expanded to require reporting on both “payroll employees” (workers on an employer’s payroll) and “labor contractor employees” (workers not on an employer’s payroll who are engaged in the employer’s usual course of business). That amendment also established potential penalties of $100 per employee for employers who fail to comply (or $200 per person for repeat failures).

In January 2024, California again updated its pay data reporting website for the 2024 reporting cycle.

Below are the key updates:

  1. Reporting Portal Opening: The portal in which employers must submit their pay data reports will open on February 1, 2024.
  2. Submission Deadline: The deadline to submit payroll and labor contractor employee reports is May 8, 2024.
  3. New Templates Released: Updated Microsoft Excel templates for this year’s reporting are designed to help employers compile and submit the necessary information.
  4. FAQs Update Pending: The FAQs currently reflect the 2022 reporting period (submitted in 2023) and have not been updated for this cycle. Thus, further guidance for this year may still be released to address any changes or provide additional clarifications.

This year’s payroll employee template introduces three new required data points for each group of employees by establishment, job category, race/ethnicity, sex, and pay band:

  1. The number of employees in the group that work onsite;
  2. The number of employees in the group that work remotely from California; and
  3. The number of employees in the work that work remotely outside of California.

The new labor contractor employee template requires the same data points for each labor contractor, establishment, job category, race/ethnicity, and sex employee group.

Employers should act promptly to prepare their data and use the CRD’s new tools and resources.

If you have questions about California’s pay data reporting requirements or need assistance with this submission, contact a Jackson Lewis attorney to discuss.

Unless exempt, California employers are required to post their annual summary of work-related injuries and illnesses, in a visible and easily accessible area at every worksite from February 1st through April 30th. Cal/OSHA’s Form 300A must be used for this posting.

Employers can find an overview regarding completing both the log (Form 300) and the annual summary (Form 300A) on Cal/OSHA’s Recordkeeping Overview page.

Cal/OSHA requires employers to record work-related fatalities, injuries, and illnesses. To be recordable under Cal/OSHA’s regulations, an injury or illness must be work-related and result in one of the following:

  • Death;
  • Days away from work;
  • Restricted work or transfer to another job;
  • Medical treatment beyond first aid;
  • Loss of consciousness; or
  • A significant injury or illness diagnosed by a physician or other licensed health care professional.

While the COVID-19 emergency in California has concluded for workplace health and safety requirements, any work-related COVID-19 fatality or illness that falls under the above criteria must be recorded on an employer’s Form 300, 300A, and 301, or equivalent forms.

Certain employers are required to annually electronically submit Form 300A data to Cal/OSHA by March 2nd. Covered employers are those that meet one of the following requirements:

  • Has 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations; or
  • Has 20 to 249 employees in the specified industries listed including Agriculture, Manufacturing, and Grocery Stores. For a full list of covered industries, employers can review Appendix H.

Information on how to make the electronic submission is available on the federal OSHA’s Injury Tracking Application website.

If you have questions about preparing your annual summary or need assistance with compliance, please reach out to the Jackson Lewis attorney with whom you often work or any member of our Workplace Safety and Health Team.

On January 18, 2024, the California Supreme Court issued its opinion in Estrada v. Royalty Carpet Mills. In the Estrada decision, the California Supreme Court resolved a split of authority on the issue of whether trial courts have discretion to strike or narrow a Private Attorneys General Act (PAGA) claim based upon manageability grounds.

The Supreme Court held trial courts lack inherent authority to strike PAGA claims on manageability grounds. In reaching that conclusion, the Court emphasized that trial courts do not generally possess a broad inherent authority to dismiss claims and examined the statutory and procedural differences between class actions and PAGA claims.

In the underlying case, plaintiffs brought PAGA and class claims primarily based on purported meal and rest period violations. The trial court dismissed the PAGA claim as “unmanageable” due to the number of individualized issues.

The Court of Appeal subsequently found courts do not have the discretion to strike a PAGA claim based on manageability, disagreeing with the prior California Court of Appeal decision from another district, holding that trial courts do have inherent authority to narrow or strike PAGA claims on manageability grounds. The Estrada Court of Appeal held striking a PAGA claim as unmanageable would interfere with PAGA’s purpose as a law enforcement mechanism by placing an extra hurdle on PAGA plaintiffs that would not be placed on the State.

The California Supreme Court Estrada decision resolves the split of authority regarding a trial court’s authority to dismiss PAGA claims as unmanageable. Agreeing with the Estrada Court of Appeal, the Court concluded that there was no basis for providing trial courts the authority to strike PAGA claims due to manageability issues. Moreover, the Court rejected the idea that class action manageability requirements could be grafted onto PAGA claims, reiterating that an employee seeking civil penalties under PAGA need not satisfy class action requirements.

Despite holding that PAGA claims could not be stricken as unmanageable, the Court noted trial courts have numerous tools other than striking a claim that can be used to manage complex cases, including PAGA claims. This decision does not preclude trial courts from limiting the types of evidence a plaintiff may present or using other tools to assure that a PAGA claim is effectively tried. The Court noted that trial courts may issue substantive rulings, including demurrers, motions for summary judgment, judgment notwithstanding the verdict, and potentially others under the Code of Civil Procedure to effectively adjudicate overbroad or unspecific claims on which a plaintiff is unable to prove liability as to all or most employees. As such, the Court left “undisturbed various case management tools designed to ensure that [PAGA] cases are efficiently, fairly, and effectively tried.”

If you have questions about the Estrada decision or related issues regarding PAGA, contact a Jackson Lewis attorney to discuss.

California’s Fair Chance Act also known as the “Ban the Box” law took effect in January 2018. It generally prohibits employers with five or more employees from asking about your conviction history before making you a job offer. In 2021, California’s Civil Rights Department (formerly the Department of Fair Employment and Housing) announced new efforts to identify and correct violations of the Fair Chance Act. Since then, the Civil Rights Department has stepped up enforcement of the statute. As such, it is vital for covered employers to understand the requirements under the law.

Covered Employers

Public and private employers with five or more employees are covered by the law. This includes union hiring halls, labor contractors, temporary employment agencies, and client employers.

Requesting Background Checks

Covered employers may not ask applicants about their criminal history until after a conditional offer is extended. However, even after a conditional offer, employers may not ask about or consider information about the following:

  • An arrest that did not result in a conviction.
  • Referral to or participation in a pretrial or posttrial diversion program.
  • Convictions that have been sealed, dismissed, expunged, or statutorily eradicated.

Steps for Rescinding a Job Offer

Under the law covered employers must take specific steps if they want to rescind a conditional job offer based on an applicant’s criminal history.

  1. Conduct an individualized assessment.
  2. Provide notification in writing that the applicant’s criminal history disqualifies the applicant from the position. The notice must also provide the conviction(s) that disqualify the applicant.
  3. Provide a copy of the conviction history report to the applicant.
  4. Provide the applicant 5 business days to respond to the preliminary decision to rescind.
  5. Consider any response from the applicant.
  6. Provide final notice in writing about disqualification.

The Civil Rights Department has sample forms available on its website.

If you need assistance with compliance with the Fair Chance Act, contact a Jackson Lewis attorney to discuss.

In light of California’s $37.86 billion budget shortfall, it is being reported that Governor Newsom is seeking changes to the California Healthcare Worker Minimum Wage law including the delay of the initial compliance date of June 1, 2024. It is not clear yet what the changes will be to the new law nor how far out the delayed implementation will be.

In the Governor’s proposed budget released on January 10, 2024, there is a request to make changes to the Healthcare Minimum Wage law so that the Governor, legislators, and key stakeholders can work through the proposed changes to the law. The proposal is found in the Governor’s Budget Summary on page 109.

On October 13, 2023, Governor Newsom signed Senate Bill (SB) 525, which enacts a multi-tiered statewide minimum wage schedule for healthcare workers employed by certain covered healthcare facilities. The new law established 5 different minimum wage schedules depending upon the nature of the employer.

Jackson Lewis will continue to track information regarding the changes to SB 525, if you have questions about SB 525 or related issues contact a Jackson Lewis attorney to discuss.

Government Code section 12850 and related regulations require all California employers to display the “California Law Prohibits Workplace Discrimination and Harassment” poster in a conspicuous place where employees gather. The Civil Rights Department published an updated version of this poster that includes information about protections for employees taking bereavement leave or leave for reproductive loss.It also contains information about prohibitions against discrimination based on an applicant’s use of cannabis outside of the workplace.

If 10% or more of an employer’s workforce at any facility or establishment speaks a language other than English, the employer must also display this poster in that language (or languages).  The updated “California Law Prohibits Workplace Discrimination and Harassment” poster and other postings required by the Civil Rights Department are available on their website, including translated versions.

If you have questions about compliance with California employee notice requirements or related issues, contact a Jackson Lewis attorney to discuss.

In 2019, California passed Assembly Bill (AB) 547, which requires janitorial employers to provide in-person training in preventing sexual violence and harassment at least once every two years. However, due to concerns about safety during the COVID-19 pandemic, the implementation of these training requirements was paused. The Division of Labor Standards Enforcement (DLSE) announced recently that employers must now commence with the training in light of the end of the COVID-19 public health emergency.

Covered Employers

Under AB 547, covered employers include any person or entity that employs at least one covered worker or otherwise engages by contract, subcontract, or franchise agreement for the provision of janitorial services by one or more covered workers. The term “employer” includes the term “covered successor employer,” but does not include an entity that is the recipient of the janitorial services.

Covered Worker

The legislation defines a covered worker as a janitor, including any individual predominantly working, whether as an employee, independent contractor, or franchisee, as a janitor, as that term is defined in the Service Contract Act Directory of Occupations (SCADO) maintained by the United States Department of Labor.

Housekeeping staff and workers who specialize in window washing, cleaning machinery, and who receive additional compensation for maintaining sterile facilities or equipment are also excluded from the SCADO definition of a janitor.

AB 547 specifically exempts from its definition of a “covered worker” any individual whose work duties are predominantly the final cleanup of debris, grounds, and buildings near the completion of a construction, alteration, demolition, installation, or repair work project.

Harassment Prevention Training

The harassment prevention training requirements under AB 547 are similar to those already required of all employers with 5 or more employees in the State of California.  However, unlike the state requirement, all employees (both supervisory and nonsupervisory) are required to have at least two hours of training.

In addition, covered employers must ensure they use content developed by the Labor Occupational Health Program (LOHP) under the direction of the Department of Industrial Relations. The training content is available on the DLSE website.

In addition, the training shall include identification of local, state, and national resources for victims of sexual violence and harassment, including hotlines and helplines for survivors, community-based resources such as rape crisis centers, counseling services, and mental health support, and agencies or organizations to whom they may report sexual violence and harassment.

Qualified Organizations and Peer Trainers

AB 547 further requires employers to use a qualified organization and peer trainers to provide harassment prevention training. The DLSE maintains a list of qualified organizations. If there are no qualified peer trainers available in a specific county to provide the training because no qualified organization was included on the Labor Commissioner’s website, or none of the qualified trainers are available to meet an employer’s training needs, the employer may use a trainer as prescribed by the Civil Rights Department to fulfill their obligations under Labor Code section 1429.5. The prescribed trainer must provide in-person training and use the LOHP training materials.

If you have questions about compliance with the sexual violence and harassment prevention training for janitorial service providers or related issues, contact a Jackson Lewis attorney to discuss.

On January 9, 2024, the California Department of Public Health (CDPH) updated its COVID-19 isolation recommendations to move away from 5 days of isolation and instead focus on clinical symptoms to determine when to end isolation. The guidance now states that those who test positive for COVID-19 should isolate until they have not had a fever for 24 hours without using fever-reducing medication AND other COVID-19 symptoms are mild and improving. If an individual tests positive but has no symptoms there is no recommendation to isolate but should still, follow recommendations regarding masking.

These recommendations are important for the application of the Cal/OSHA COVID-19 Prevention Non-Emergency Regulations which remain in effect until 2025 and incorporate the CDPH’s definitions of infectious period and its guidance for isolation into the regulations.

If you have questions about COVID-19 Workplace Safety or related issues, contact a Jackson Lewis attorney to discuss.

The California Employment Development Department (EDD) has released the 2024 Voluntary Plan Employee Contribution and Benefit Rate.

Employers with employees located in California are generally required to withhold and send state disability contributions to the EDD.

Of note, Senate Bill (SB) 951, which was signed in 2022, eliminated the Maximum Contribution and Taxable Wage Ceiling effective January 1, 2024.  These concepts can be disregarded by employers, subject to future legislation.

The 2024 rates are as follows:

“Employee Contribution Rate”1.1%
“Maximum Weekly Benefit Amount” (WBA)$1,620.00
“Maximum Benefit Amount” (WBA X 52 weeks)$84,240.00
“Assessment Rate” (this figure is the product obtained by multiplying the worker contribution rate by 14% or 1.1 X 14%)0.154%

The Employee Contribution Rate is the percentage withheld from the wages of employees who are covered by the Disability Insurance (DI) and Paid Family Leave (PFL) programs.

The contribution rate is relevant to employers who must comply with San Francisco’s Paid Parental Leave Ordinance (PPLO).  The city of San Francisco requires most employers with twenty or more employees worldwide to supplement PFL benefits received by employees to bond with a new child. 

During the PFL leave period, the PPLO supplemental compensation provided by an employer, added to the PFL wage replacement benefit received from the EDD, must equal 100% of the employee’s gross weekly wage, subject to a cap. For 2024, the PPLO cap remains $2,700 per week, as it was the year prior. The San Francisco Office of Labor Standards Enforcement has a calculator on its website to assist employers in determining how much supplemental compensation they must pay to eligible employees per week.

The Assessment Rate is relevant to employers that maintain a state-approved voluntary plan (VP), which is a disability insurance plan that an employer can offer to its California employees as a legal alternative to mandatory DI and PFL. The Assessment Rate is the amount that an employer pays to the EDD as an administrative expense for maintaining a voluntary plan.

Jackson Lewis continually monitors governmental changes affecting California employers. If you have questions regarding Paid Family Leave, the Paid Parental Leave Ordinance or other wage replacement requirements contact a Jackson Lewis attorney to discuss.