On September 30, 2023, Governor Newsom signed Senate Bill (SB) 553, which will require employers to establish, implement, and maintain an effective workplace violence prevention plan (WVPP).

The WVPP will require the maintenance of a violent incident log, training on workplace violence hazards, and periodic reviews of the plan. Some controversial provisions from earlier versions of the bill—including those that would prohibit retailers from “confronting” suspected shoplifters except through “dedicated safety personnel”—were deleted.

The following types of entities are exempted from the WVPP requirement:

  • Healthcare facilities (already covered by Cal/OSHA’s Violence Prevention in Health Care standard)
  • Facilities operated by the Department of Corrections and Rehabilitation
  • Employers that law enforcement agencies, including being in compliance with the Commission on Peace Officer Standards and Training Programs
  • Employees who are teleworking
  • Places of employment where there are fewer than 10 employees working at the place at any given time, that are not accessible to the public and are in compliance with the requirement to develop and maintain an Injury Illness Prevention Plan (IIPP).

Under the bill, a collective bargaining representative of an employee who has suffered unlawful violence from any individual may seek a temporary restraining order (TRO) and an order after hearing on behalf of the employee.

Many of the bill’s requirements (including the development of the WVPP) take effect on July 1, 2024, and will be enforced by the Division of Occupational Safety and Health (Cal/OSHA). 

SB 553 also requires Cal/OSHA by December 1, 2025, to propose standards for the WVPP, and by December 31, 2026, for the Standards Board to adopt such standards.

If you have questions about SB 553, or related issues, contact a Jackson Lewis attorney to discuss.

On September 30, 2023, Governor Newsom signed Assembly Bill (AB) 800, which will provide revisions to the requirements for the issuance of student work permits along with additional requirements for schools in conjunction with Workplace Readiness Week.

AB 800 requires that starting August 1, 2024, any minor seeking the signature of a verifying authority on a Statement of Intent to Employ a Minor and Request for a Work Permit-Certificate of Age, to be issued a document clearly explaining basic labor rights extended to workers, as provided, before or at the time of receiving the signature of the verifying authority.

Further, under the law, all public high schools would be required to observe Workplace Readiness Week by providing information to students on their rights as workers.

If you have questions about AB 800 or related issues, contact a Jackson Lewis attorney to discuss.

This summer the California Civil Rights Council approved modified regulations pertaining to California’s Fair Chance Act.

These modifications take effect on October 1, 2023.

Employers should remember the following as these changes take effect.

  • When notifying an applicant of a disqualification the notice must include all of the following:
    • Notice of disqualifying conviction that is the basis for the preliminary decision.
    • A copy of the conviction history report relied upon.
    • Notice of the applicant’s right to respond to the notice before the preliminary decision becomes final.
    • Explanation informing an applicant that they can submit either or both evidence to challenge the conviction history or evidence of rehabilitation or mitigation.
    • Notice of the deadline for the applicant to respond.
  • Individualized assessments must be “reasoned, evidence-based determination” and provide detail on what may be taken into consideration.
  • Labor contractors, union hiring halls, and client employers are deemed employers governed by the Fair Chance Act and they must comply with the requirements for workers who are admitted to a pool or availability list.
  • Employers may require applicants to complete the IRS form 8850 or equivalent before a conditional offer is made, as long as the information gathered is used solely to apply for the IRS Work Opportunity Tax Credit.

If you have questions about the changes to the Fair Chance Act regulations or related issues contact a Jackson Lewis attorney to discuss.

On September 28, 2023 , Governor Newsom signed Assembly Bill (AB) 1228, completing the agreement reached between business and labor in early September regarding the FAST Recovery Act.

On September 11, 2023, the coalition of California businesses announced its agreement with labor unions to withdraw their referendum challenging Assembly Bill (AB) 257, which created the FAST Recovery Act, from next year’s ballot.

AB 1228 repeals the FAST Recovery Act but establishes a modified version of the Fast Food Council (Council) until January 1, 2029. The bill further outlines the Council’s objectives, responsibilities, and constraints in relation to setting an hourly minimum wage and overseeing the adoption and evaluation of health, safety, and employment standards for the fast food restaurant employees.

However, there are carve outs for standards created by the Council under certain situations covered by a valid collective bargaining agreement.

The bill also sets forth the minimum wage increases for fast food workers, with an increase to $20.00 effective April 1, 2024. Thereafter, minimum wage for fast food workers shall increase annually on January 1.

If you have questions about AB 1228, or related issues contact a Jackson Lewis attorney to discuss.

On September 11, 2023, the coalition of California businesses announced its agreement with labor unions to withdraw their referendum challenging Assembly Bill (AB) 257, which created the FAST Recovery Act, from next year’s ballot.

Last year, Governor Newsom signed AB 257. The Act established a Fast Food Council comprising fast food employees, worker advocates, franchisors, franchisees, and government officials from the Department of Industrial Relations and the Governor’s Office of Business and Economic Development.

Almost immediately, a referendum effort was launched which would give California voters the opportunity to reject the measure.

While AB 257 was paused pending the referendum, the California legislature proceeded with reviving the Industrial Welfare Commission, seen as the state’s attempt to push through similar efforts to increase regulations and expansion of union involvement in industries such as the fast-food industry. In addition, another bill, Assembly Bill (AB)1228, was introduced. That bill would have imposed liability on franchisors for violations of the Fair Employment and Housing Act, the Labor Code, Cal/OSHA, and other workplace laws as well as exposing franchisors to liability under the Private Attorneys General Act.

In exchange for withdrawing the referendum on AB 257, AB 1228 was significantly revised. The amended bill does not include franchisor liability but instead resurrects the Fast Food Council that was originally included in AB 257.

As with AB 257, the amended AB 1228 would give the Fast Food Council the authority to set minimum employment standards for fast food restaurants, including wages, hours, health and safety, and other working conditions. It would set an initial minimum wage of $20 per hour effective April 1, 2024, and permit the Council to establish further increases based on increases to the Consumer Price Index. The bill as amended would also permit local jurisdictions to establish more protective labor standards but would preclude them from setting wages different from those set by the Council. The Council’s authority would sunset on January 1, 2029.

AB 1228 has not made its way out of the legislature and has only until midnight on September 14 to be sent to the Governor. However, in light of the agreement between the two sides, it is expected the bill will make its way to Governor Newsom and be signed.

If you have questions about the FAST Recovery Act or related issues, contact a Jackson Lewis attorney to discuss.

On September 1, 2023, Governor Newsom signed Senate Bill (SB) 699, which buttresses current state law that voids contracts that restrain an employee from engaging in a lawful profession, trade, or business of any kind.  

California’s Business and Professions Code section 16600 states, “[E]very contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void.” This section has long been interpreted by California courts as prohibiting post-employment noncompetition, non-solicitation of customers, and non-solicitation of employee agreements, with few exceptions.  The chapter exempts such restrictive covenants in the sale or dissolution of corporations, partnerships, and limited liability corporations.

SB 699 both reiterates existing law and goes a few steps further. Under SB 699, any contract that is void under section 16600 is unenforceable, regardless of where and when the contract was signed. In addition, an employer or former employer may not attempt to enforce a contract that restricts an employee’s ability to engage in a lawful profession, trade, or business, even if the contract was signed outside of California and the employment was maintained outside of California.  

Moreover, SB 699 prohibits an employer from entering into a contract with an employee or prospective employee which includes noncompete clauses and other restrictive covenants that are void under section 16600. Employers who violate SB 699 could be liable for civil violations. 

An important change to California law is that SB 699 adds explicit enforcement rights for employees regarding restrictive contracts.

This law takes effect on January 1, 2024, to the extent that new enforcement rights are created. 

Another bill pertaining to restrictive covenants, Assembly Bill 747 that had been working its way through the California legislature has been ordered to the inactive file for this session.

If you have questions about SB 699 or related issues, contact a Jackson Lewis attorney to discuss.

As school resumes and temperatures fall, employees may be calling out sick. Here is a refresher on the basics of California’s paid sick leave law known as the Healthy Workplace Healthy Families Act, Labor Code 245 et seq.

Covered Employers

The state’s paid sick leave requirement applies to all employers and includes public employees.

Covered Employees

Employees who have worked at least 30 days within a year in California qualify to accrue paid sick leave.  Accrual of paid sick leave starts on the first day of employment. Employers, however, may require an employee to complete a 90-day employment period before using paid sick leave.

Reasons for Leave

Covered employees may take paid sick leave for the following reasons:

  1. For diagnosis, care, or treatment of an existing health condition of, or preventive care for, an employee or an employee’s family member (meaning a child, which includes biological, adopted, or foster child, stepchild, legal ward, or a child to whom the employee stands in loco parentis, all regardless of age or dependency status); spouse; registered domestic partner; parent (including biological, adoptive, or foster parent, stepparent, or legal guardian of an employee or the employee’s spouse or registered domestic partner, or a person who stood in loco parentis when the employee was a minor child); grandparent; grandchild; sibling; or designated person; or
  •  For an employee who is a victim of domestic violence, sexual assault, or stalking to: (a) obtain or attempt to obtain a temporary restraining order, restraining order, or other injunctive relief; (b) help ensure the health, safety, or welfare of the victim or the victim’s child; (c) seek medical attention for injuries caused by domestic violence, sexual assault, or stalking; (d) obtain services from a domestic violence shelter, program, or rape crisis center as a result of domestic violence, sexual assault, or stalking; (e) obtain psychological counseling related to an experience of domestic violence, sexual assault, or stalking; or (f) participate in safety planning and take other actions to increase safety from future domestic violence, sexual assault, or stalking, including temporary or permanent relocation.

Amount of Leave

Under the state law, employers may provide either all paid sick leave at once also referred to as the front-loaded method, or by accrual methods. Depending on the method, the amount must be provided as follows:

  • Front Loaded Method: 24 hours or 3 days at the time of hire and the beginning of each year.       
  • Accrual Methods: 1 hour for every 30 hours worked or accrual on a regular basis providing not less than 24 hours or 3 days by the 120th calendar day of employment or each calendar year, or in each 12-month period.

Exempt employees are deemed to work 40 hours per workweek unless the employee’s normal workweek is less than 40 hours.

Local Paid Sick Leave Ordinances

Several cities have local paid sick leave ordinances with additional requirements beyond the state mandate. Employers should check if cities where they operate have paid sick leave requirements.

If you have questions about paid sick leave requirements or related issues, contact a Jackson Lewis attorney to discuss.

Under the Labor Code, each year the State of California must determine and certify whether an adjustment for inflation is applied to the state’s minimum wage. In 2022, when the rate of inflation exceeded 7 percent, the state minimum wage was increased to $15.50. This year, California has decided that the minimum wage increase will include an inflation adjustment of 3.5 percent for all employees. This means effective January 1, 2024, California’s minimum wage will increase to $16.00 per hour for all employers, regardless of size.

This minimum wage increase will affect not only hourly employees but will impact some exempt employees in California who are required to receive a salary of at least twice the state minimum wage.

However, employers should be aware that numerous cities across California have separate minimum wages, which are typically higher than the state minimum wage.

Jackson Lewis continues to track legal changes that affect California employers. If you have questions about minimum wage or salary compliance or related issues, contact a Jackson Lewis attorney to discuss.

On July 24, 2023, the California Office of Administrative Law approved the California Civil Rights Council’s modifications to regulations pertaining to California’s Fair Chance Act. Under the Fair Chance Act, employers with five or more employees are prohibited from asking an applicant about conviction history before making a job offer and setting forth other requirements pertaining to an applicant’s criminal history.

The modifications take effect on October 1, 2023.

The following are a few of the modifications that employers should take note of.

Notice of Preliminary Decision and Opportunity for Applicant Response

The modification clarifies that if an employer makes a preliminary decision after an “initial” individualized assessment that the applicant’s conviction history disqualifies the applicant, the employer shall notify the applicant in writing. The notice must include all of the following:

  1. Notice of disqualifying conviction that is the basis for the preliminary decision.
  2. A copy of the conviction history report relied upon.
  3. Notice of the applicant’s right to respond to the notice before the preliminary decision becomes final.
  4. Explanation of the type of evidence an applicant can submit to challenge the conviction history or as evidence of rehabilitation or mitigation.
  5. Notice of the deadline for the applicant to respond.

Individualized Assessment

The modified regulations clarify that an individualized assessment must be a “reasoned, evidence-based determination,” and provide detail on what may be taken into consideration in assessing the three factors to determine whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.

Evidence of Rehabilitation or Mitigating Circumstances

The modified regulations also clarify that evidence of rehabilitation or mitigating circumstances is optional and may only be voluntarily provided by the applicant or by another party at the applicant’s request.  The regulations state-specific actions that an employer is prohibited from taking: refusing to accept additional evidence voluntarily provided by an applicant, requiring an applicant to submit any additional evidence or a specific type of documentary evidence, disqualifying an applicant from the employment conditionally offered for failing to provide any specific type of evidence, requiring an applicant to disclose their status as a survivor of domestic or dating violence, sexual assault, stalking or comparable statuses, and/or requiring an applicant to produce medical records and/or disclose the existence of a disability or diagnosis.

Reassessment

The modification provides examples of the factors the employer may consider when making a final decision regarding whether to rescind a condition offer of employment.

The modified regulations provide more detail on the types of evidence an employer may consider including:

  1. When the conviction led to incarceration, the applicant’s conduct during incarceration, including participation in work and educational or rehabilitative programming and other prosocial conduct;
  2. The applicant’s employment history since the conviction or completion of the sentence;
  3. The applicant’s community service and engagement since the conviction or completion of sentence, including but not limited to volunteer work for a community organization, engagement with a religious group or organization, participation in a support or recovery group, and other types of civic participation; and/or
  4. The applicant’s other rehabilitative efforts since the completion of sentence or conviction or mitigating factors.

Labor Contractors, Union Halls, and Client Employers

The modified regulations add labor contractors, union hiring halls, and client employers as types of employers governed by the Fair Chance Act and the regulations and specify that they must comply with the requirements for workers who are admitted to a pool or availability list.

IRS Work Opportunity Tax Credit

The modified regulations specify that an employer may require applicants to complete the IRS form 8850 or equivalent before a conditional offer is made, so long as the information gathered is used solely to apply for the credit.

If you have questions about the changes to the regulations pertaining to the Fair Chance Act or related issues, contact a Jackson Lewis attorney to discuss.