2022 Legislation Update – California

CFRA Leave for Parent-in-Laws

On September 27, 2021, California Governor Gavin Newsom signed legislation (AB 1033) allowing employees to take family care and medical leave under the California Family Rights Act (CFRA) for parents-in-law, who are defined as the parent(s) of an employee’s spouse or domestic partner.

The law is effective January 1, 2022.

Emailed Workplace Posters

On July 16, 2021, the California governor signed legislation  (SB 657) allowing employers to email mandatory workplace posters. Under the law, any time employers must physically post information in the workplace, like the California Minimum Wage Official Notice, they may also provide it to employees by email. However, sending the information via email doesn’t remove the employer’s duty to physically post the workplace notices.

The law is effective January 1, 2022.

Expanded Prohibitions on Settlement and Nondisparagement Agreements

On October 7, 2021, the California governor signed legislation (SB 331) expanding restrictions on settlement and non-disparagement agreements between employers and employees.

Under the law, employers will be prohibited from entering into settlement agreements that restrict employees from disclosing information related to a civil claim or an administrative action pertaining to:

• • Workplace harassment or discrimination;
  • Failure to prevent an act of workplace harassment or discrimination; or
  • Retaliation against someone for reporting or opposing harassment or discrimination.

Additionally, employers will be prohibited from requiring employees to sign non-disparagement agreements or other documents that deny an employee the right to disclose information about unlawful acts in the workplace.

The law also requires that employers:

• • Include language specified in the statute explaining that the non-disparagement agreement does not prevent the employee from discussing information about unlawful acts in the workplace; and
  • Notify employees that they may consult with counsel before entering into any such agreement.

However, employers are not prohibited from entering into agreements with employees that keep the amount of severance an employee receives confidential, nor is an employer prohibited from protecting their trade secrets, proprietary information, or other confidential information that does not involve unlawful acts in the workplace.

The law applies to agreements that are entered into on or after January 1, 2022.

Expanded Recordkeeping Requirements

On September 23, 2021, California Governor Gavin Newsom signed legislation (SB 807) amending the state’s Fair Employment Practices Law (at Cal. Govt. Code § 12946) by requiring employers to maintain and preserve all of the following for four years (an increase from the previous two-year requirement):

• • Applications, personnel, membership, or employment referral records and files (four years from when they were made or received); and
  • Applicants or terminated employees’ personnel files (four years from when the employment action occurred).

The amended law also specifies the rules around record retention after a verified complaint is filed against an employer.

The law is effective January 1, 2022.

Overtime Exemptions Updated Rates

On October 18, 2021, the California Department of Industrial Relations updated the minimum hourly pay for physicians and computer software employees to qualify for the overtime exemption. The changes are as follows:

• • Licensed Physicians and Surgeons must be paid $91.07 per hour to be exempt; and
  • Computer Software Employees must be paid $50.00 per hour to be exempt.

The updated rates will be effective on January 1, 2022.

Quotas and Employee Protections at Warehouse Distribution Centers

On September 22, 2021, the California governor signed legislation (AB 701) creating new protections for nonexempt employees working at warehouse distribution centers. The law specifically addresses quotas and how they must be explained by warehouse distribution center employers with 100 or more employees at a single location or 1,000 or more employees at one or more locations in California.

Quotas are work standards that employees must meet at a certain speed, or the set number of tasks they must do, or the set amount of material they have to handle or produce, within a set time. If they don’t achieve these goals, there could be adverse employment action such as reprimand, suspension, or termination.

By January 31, 2022—and after that date, upon hire—employers must give employees a written description of each quota with the number of tasks to perform, what they must handle or produce, how long they have to do their work, and what happens if they fail to meet their quota. However, employers can’t take adverse employment action against employees who don’t meet their quotas because they didn’t know about them, couldn’t take a break, couldn’t use the bathroom, or because other occupational safety and health (OSH) laws would be violated.

The law also addresses “time on task” and “productive time” for quotas. Time spent by employees that complies with OSH laws is considered time on task and productive time for any quota or monitoring system. However, meal and rest breaks are not considered productive time unless the employee is on call.

Employees who believe that meeting a quota violated their meal or rest period or made them violate any OSH law have the right to request (verbally or in writing)—and the employer must provide within 21 calendar days— a written description of each quota to they were subject to and a copy of the most recent 90 days of their own personal work speed data. This information must also be given to former employees who request it, it must cover the 90 days before their separation, but they can only ask for it once.

The law includes antiretaliation provisions but it doesn’t preempt any city, county, or city and county ordinance that provides equal or greater employee protections.

The law is effective January 1, 2022.

Subminimum Wage Eliminated for Persons with Disabilities

On September 27, 2021, the California governor signed  (SB 639) eliminating the ability for employers to get a new special minimum wage license from the California Labor Commission. Through the commission, employers could essentially get permission to pay an employee with a mental or physical disability a subminimum wage for up to one year and then request to get it annually renewed. Under this law:

• • New licenses won’t be issued after January 1, 2022; and
  • Employees with a disability can’t be paid less than the state’s or a locality’s minimum wage, whichever is higher, as of January 1, 2025.

The law is effective January 1, 2022.

Wage Theft by Employers

On September 27, 2021, California Governor Gavin Newsom signed legislation (AB 1003) making intentional wage theft by an employer in any consecutive 12-month period—greater than either of the following amounts—punishable as grand theft:

• • $950 from any one employee; or
  • $2,350 in total from two or more employees.

Wage theft is the intentional, illegal deprivation of wages, tips, benefits, or other compensation with the knowledge that they are legally due to the employee. Of note, the law also applies to wage theft from independent contractors.

The law is effective January 1, 2022.

Warehouse Production Quotas

Employers who impose warehouse production quotas (AB 701) must provide written notice to employees by January 31, 2022. Among other requirements and provisions, this law includes the following:

Covered employers are those with either:

• • 100 or more employees at a single warehouse distribution center in the state; or
  • 1,000 or more employees at multiple warehouse distribution centers in the state.

By January 31, 2022, covered employers must provide new and current employees with a written description of any production quotas to which they are subject. The information must include:

• • The quantified number of tasks to be performed or materials to be produced or handled within the applicable time period; and
  • Any potential adverse employment action that could result from an employee’s failure to meet the quota.

In addition, employees must not be required to meet a quota preventing compliance with:

• • Meal or rest periods;
  • Use of bathroom facilities; or
  • State and federal occupational health and safety laws.

Employees also have additional rights, including but not limited to:

• • Requesting information regarding their quota in the event of an alleged violation;
  • Protection from discrimination or retaliation for failing to meet certain quotas; and
  • Seeking injunctive relief to obtain an employer’s compliance with the law.