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2024

California Increases Paid Sick Leave January 1, 2024

The state has increased the three-day benefit to a five-day benefit. Beginning January 1, 2024, employees must be able to use up to 40 hours or five days per year of paid sick leave.

Accrual Methods

The standard accrual rate of 1 hour per 30 hours worked remains the same. Employers that use some other method of accrual must allow employees to earn at least 24 hours by their 120th day of employment, or in each calendar year or other 12-month period (same as before), and all 40 hours by their 200th day of employment, or in each calendar year or other 12-month period. (Note that 24 hours in 120 days and 40 hours in 200 days will be earned at the same rate.)

Lump Sum Methods

Employers that provide leave in a lump sum need to provide at least 24 hours or three days of sick leave to use no later than after an employee’s 120th day of employment (same as before) and all 40 hours or five days after their 200th day. This seems to open the door to providing 24 hours or three days of sick leave when the employee has completed their 120th day while withholding the remaining 16 hours or two days until the employee has completed their 200th day.

Of course, employers are still free to provide the full amount of leave up front and don’t need to provide it in two installments. They can also allow employees to use sick leave before completing 120 days of employment.

You still don’t have to allow carryover if providing the full amount of leave (i.e., 40 hours or five days) at the beginning of each year using the lump sum method. However, the law doesn’t allow you to avoid carryover if you decide to divvy up an employee’s lump sum leave allotment into 24 and then 16 hours (or any other combination that did not provide the full amount of leave at the start of the year).

Use Caps and Carryover

The yearly use cap is now 40 hours or five days instead of 24 hours or three days. The total (rolling) accrual cap is now 80 hours or 10 days instead of 48 hours or six days.

Preemption of Local Sick Leave Rules

The amended law includes preemption of certain provisions in local sick leave ordinances. This means that localities will need to follow the state law exactly on those particular issues—they will not be allowed to write (or enforce) more restrictive or more employee-friendly rules. Preemption applies to the following provisions:

  • End of employment payout of employees’ unused sick leave
  • Employer advancement of (unaccrued) sick days to employees
  • Employer written notice requirement regarding available leave
  • Rate of pay calculations for employees’ actual sick leave taken
  • Employee notification for foreseeable and unforeseeable use of sick leave
  • Timing of payment to employees for paid sick leave used

Thankfully, localities with their own sick leave laws have so far been almost totally aligned—or at least not in conflict—with the state on these topics. Employers in these locations shouldn’t have to overhaul their sick leave policies aside from ensuring that they offer as many hours as now required by the state. Localities are not barred from writing and enforcing more employee-friendly sick leave rules on matters not in this list, such as total number of hours accrued or acceptable reasons to use leave.

Resourcing Edge will keep an eye out for an updated Paid Sick Leave poster from the California Department of Industrial Relations.

Noncompetes are Void Regardless of When and Where They’re Signed

In California, and with limited exceptions, contracts restraining an employee from lawfully working or doing any kind of business (aka noncompete agreements and restrictive covenants) are generally void and unenforceable. Effective January 1, 2024, new legislation will make them void and unenforceable no matter when or where they’re signed. For instance, current and former employers won’t be able to enforce a noncompete agreement even if it was signed and the employment was maintained outside California. Employers also won’t be allowed to enter into a contract with a prospective or current employee that has a noncompete provision or restrictive covenant, and to do so will be a civil violation.

California’s public policy and law prohibiting trade restraints takes precedence over other state laws when an employee seeks employment in California, even if the employee signed the noncompete while living outside of California and working for a non-California employer.

New Notice Requirement for New Hires

Effective January 1, 2024, all employers need to provide new employees with notice about any federal or state emergency or disaster declaration that applies to any county where the employee will perform work, and that may affect their health and safety on the job if the declaration was issued in the 30 days prior to their start date. The Department of Industrial Relations has already updated its NOTICE TO EMPLOYEE template.

Reproductive Loss Leave Enacted

Effective January 1, 2024, employers with five or more paid employees must grant their employees up to five days of reproductive loss leave following a reproductive loss event (loss), which is the day—or for a multiple-day event, the final day—of a failed adoption, failed surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. To be covered by the law, employees must have worked for their employer for at least 30 days prior to taking the leave. Leave is limited to no more than 20 days within a 12-month period, even if an employee experiences more than one loss within that time.

Leave can be taken on nonconsecutive days but must be taken within three months of the employee’s loss. Employees that take any other leave—prior to or immediately following a loss—must complete their reproductive loss leave within three months of the other leave ending.

Reproductive loss leave must be taken in accordance with any existing, applicable employer leave policy. If no such policy exists, the reproductive loss leave may be unpaid. Employees may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is available to them so they can be paid during the otherwise unpaid leave.

Employers must maintain the confidentiality of any employee requesting reproductive loss leave and can’t retaliate against them for requesting the leave, taking the leave, or exercising other rights under the law.

EITC Employer Notification Requirements & Electronic Email Notification

Effective January 1, 2014, California will require employers to inform their employees that they may be eligible for VITA, CalFile, and state and federal antipoverty tax credit eligibility, including the federal and the California EITC, beginning January 1, 2024. This notification must occur within one week of when employers provide an annual wage summary, including, but not limited to, a Form W-2 or a Form 1099, to any employee. A second notification must be sent to all employees during the month of March of the same year.

To comply, employers may provide these notifications by handing them directly to their employee, mailing them to their employee’s last known address, or electronically. The employer is not permitted to satisfy the notification requirement by posting a notice on an employee bulletin board or sending it through office mail. However, these methods of notification are encouraged to help inform all employees.

Beginning January 1, 2024, and only until January 1, 2029, employers can provide information to their employees about the Earned Income Tax Credit (EITC) and the Unemployment Insurance (UI) Program (e.g., For Your Benefit) via email to an email account of the employee’s choosing—in PDF, JPEG, or other digital image file type format—if an employee affirmatively, and in writing or by electronic acknowledgment, opts-in to receipt of electronic statements or materials. Employers can’t retaliate against employees who don’t opt-in.

For the electronic acknowledgment of receipt of information on UI benefits, the acknowledgment form must do all the following:

  • Fully explain that the employee is agreeing to electronic delivery of the notification.
  • Provide the employee with information about how they can revoke consent to electronic receipt.
  • Create a record of the employee’s agreement to electronic delivery of the notification.

An employee may revoke the agreement at any time in writing, by email, or by some form of electronic acknowledgment.

Cannabis Protections in Employment

Effective January 1, 2024, employers with five or more employees will be prohibited from discriminating against an applicant or employee for using cannabis off-duty and away from the workplace. This includes discriminating based on a drug test that finds non-psychoactive cannabis metabolites in their system. Non-psychoactive cannabis metabolites are what’s stored in the body after THC (which causes the “high”) is metabolized. Their presence means that cannabis was consumed but doesn’t indicate that a person is currently impaired.

Additionally, employers can’t ask about an applicant’s prior use of cannabis or consider information about an applicant’s or employee’s prior cannabis use. This includes making decisions based on information revealed in their criminal history unless doing so is allowed by state or federal law.

Employers can still make employment decisions based on drug tests that don’t screen for non-psychoactive cannabis metabolites. Employers can also continue to take steps to ensure a drug-free workplace, such as prohibiting employees from having or using cannabis at work or being impaired on the job.

The law contains certain exceptions, including but not limited to employees in building and construction and positions for which drug testing is governed by federal or state law, a federal contract, or as a condition of receiving federal funds or licensing.

Workplace Violence Prevention Plan Required

Effective July 1, 2024, almost every employer must include a written workplace violence prevention plan as part of its injury prevention program. The plan must always be in effect, designed specifically for each work area and operation, and include the following:

  • Names and titles of people responsible for the plan
  • Plan development procedures that include employee involvement
  • Implementation and training methods
  • Response procedures and antiretaliation protections
  • Compliance procedures for supervisory and nonsupervisory employees
  • Communication methods
  • Hazard identification and correction procedures
  • Post-incident response and investigations
  • Efficacy and annual review

Employers must also record information in a violent incident log for every workplace violence incident. The law also addresses the creation and maintenance of the violent incident log, mandatory training, reporting workplace violence, recordkeeping, and much more.

Of note, the following are exempted from the law: Workplaces with less than 10 employees working there at any given time, that aren’t accessible to the public, and that comply with the state’s injury and illness prevention program requirements; and employees teleworking from a location of their choice that is not under the employer’s control.

2023

Criminal Updated Criminal History Regulations

California’s Fair Employment and Housing Act (FEHA) regulations was updated as of October 1, 2023. The updated regulations govern how employers with five or more employees can use criminal history information when making employment decisions. Here are highlights of the changes:

  • The definition of “applicant” will now include existing employees that have applied for or expressed interest in a different position with the employer or whose criminal histories are reviewed because of a change in ownership, management, policy, or practice.
  • Employers can’t say in job postings, on applications, or in other hiring materials that individuals with criminal histories won’t be hired. This includes statements like “no felons” or “must have a clean record.”
  • If an applicant voluntarily discloses their criminal history, employers can’t consider that information until after a conditional job offer is made (assuming the record can be considered at all).
  • The fact that a licensing, regulatory, or government agency board has licensed an applicant—despite their criminal history—should be considered strong evidence that their criminal history is not grounds for disqualification from that type of job.
  • Employers can, but don’t have to, use the sample notices provided by the California Civil Rights Department when communicating with applicants about employment decisions based on criminal history.

If you are required by law to conduct criminal background checks, or if you regularly use criminal history information in making employment decisions, Resourcing Edge recommends that you review the changes in full on the California’s Civil Rights Department website.

California Court of Appeals Provides Guidance on Employee Expense Reimbursement

On July 11, 2023, a California appeals court issued a ruling regarding employee expense reimbursement. In this case, the court found that expenses incurred by remote workers that were directly related to their work (e.g., internet access, telephone service, a telephone headset, a computer, and accessories) were to be reimbursed by the employer despite the fact that the employees were working from home as the result of a COVID-19 quarantine order as opposed to a direction from the employer. The court found that the plain language of Cal. Labor Code § 2802(a) requires employers to reimburse all necessary expenses that were the direct consequence of employees performing their duties regardless of whether the employer itself was the direct cause of the need for the expense.

Resourcing Edge is continuing to monitor this case and will provide relevant updates accordingly.

San Francisco Military Leave Pay Protection Act

Effective February 19, 2023, San Francisco’s Private Sector Military Leave Pay Protection Act (MLPPA) requires employers (with San Francisco employees and 100 or more employees worldwide) to provide supplemental pay to their employees (who work in San Francisco and are members of the U.S. Armed Forces, National Guard, or other U.S. uniformed service) while on leave for military duty for up to 30 days in a calendar year.

This supplemental pay requirement means that employers must pay covered employees the difference between their gross military pay and the amount of gross pay they would’ve received if they worked their regular work schedule. The purpose of the MLPPA is to ensure employees won’t suffer financial hardship during their military duty, but they shouldn’t be receiving more than they would have normally been paid.

Employers must notify their employees about the MLPPA and its entitlements. The act also includes information about how to calculate the pay, paydays, employee notice, recordkeeping requirements, antiretaliation provisions, and more.

Non-Emergency COVID-19 Prevention Regulations

Effective February 3, 2023, the California Occupational Safety and Health Standards Board’s (OSHSB) non-emergency COVID-19 prevention regulations replace the COVID-19 Prevention Emergency Temporary Standards (ETS). The regulations are effective until February 3, 2025, and require employers to create, implement, and maintain a COVID-19 workplace hazard program. The program can be addressed in an employer’s injury and illness prevention program (IIPP) or maintained in a separate document.

Notable changes in the regulations, differing from the ETS, include:

  • The definition of close contact changed to vary based on the size of the indoor worksite.
  • Employee screening requirements are removed.
  • The specific requirements regarding the content of employee training contained in the ETS are removed. Employers must train employees based on the standards for IIPPs.
  • The definition of infectious period changed.
  • The exclusion pay requirement is removed.
  • Notice requirements are changed and apply along with California Labor Code § 6409.6. Employers are required to directly notify close contacts and post a notice for all employees.
  • Recordkeeping requirements are changed to require employers to keep specified information about COVID-19 cases for two years. There are specific reporting requirements for major outbreaks.

The regulations also include guidance and requirements for planning, training, response, notice, and recordkeeping. Read more on Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations page, which has a fact sheet, FAQs, and model prevention plan.

Reproductive Health Decisions

Effective January 1, 2023, reproductive health decisions were added to the list of protected characteristics under California’s antidiscrimination law, which applies to employers that regularly employ five or more employees (regardless of location). Religious organizations and nonprofits are exempt.

Employers also can’t ask applicants or employees to provide any information about their reproductive health decisions as a condition of employment or to receive a benefit of employment. A reproductive health decision includes, but isn’t limited to, a decision to use or access a particular drug, device, product, or medical service for reproductive health.

Bereavement Leave

Effective January 1, 2023, employers that have five or more employees are required to provide employees with up to five days of bereavement leave for the death of a family member. To determine your employee count, include all employees regardless of location. For purposes of bereavement leave, family member is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The law doesn’t allow employers to cap how many times an employee can take bereavement leave. That is, employees can take bereavement leave when any covered family member dies.

To be entitled to bereavement leave, an employee must have worked for the employer for at least 30 days before taking leave. The days of leave don’t have to be consecutive but must be taken within three months of the family member’s death.

If you don’t have a paid bereavement policy, the leave can be unpaid. If you have a bereavement policy that provides for less than five days of paid leave, the remaining days can be unpaid. Employees can choose to use their available vacation, paid sick leave, or other paid time off during any period of bereavement leave that would otherwise be unpaid. Salaried exempt employees must be paid in accordance with the Fair Labor Standards Act and California wage and hour law.

Employers can require the employee to provide documentation to verify their need for leave, such as a published obituary. Employers must keep information regarding an employee’s use of bereavement leave confidential.

Bereavement leave was a new leave entitlement and is separate from leave under the California Family Rights Act (CFRA).

CFRA and Paid Sick Leave Expanded to Cover a “Designated Person”

Effective January 1, 2023, employees were able to begin to take leave under the paid sick leave law and the California Family Rights Act (CFRA) to care for a designated person. For both laws, the employer can limit each employee to choosing one designated person per 12-month period. For CFRA, the designated person needs to have a serious health condition and can be anyone who the employee is either related to by blood or has a close association with that is equivalent to a family relationship. For paid sick leave, the employee can choose anyone as their designated person.

Paid sick leave applies to employers of all sizes. CFRA applies to employers that have five or more employees (regardless of location). Additional details are available on the platform.

Employee Rights During Emergency Conditions

Effective January 1, 2023, employees are entitled to leave work or not come in during emergency conditions if they have a reasonable belief that the workplace is unsafe. You can require employees to provide notice in advance when feasible or, if advance notice isn’t feasible, as soon as possible. This new law specifically entitles employees to use their cell phones or other devices to get emergency assistance, communicate with someone to make sure they’re safe, or assess the safety of a situation during an emergency condition.

An emergency condition means either:

  • A condition of disaster or extreme peril to people or property at work caused by natural forces or a criminal act; or
  • An order to evacuate from work, the employee’s home, or the employee’s child’s school because of a natural disaster or a criminal act.

A health pandemic does not qualify as an emergency condition. Several types of employees are exempt, such as first responders and employees of licensed residential care facilities.

Call Centers Must Give Advance Relocation Notice

Effective January 1, 2023, call center employers with 75 or more employees may not order a relocation of a call center, or one or more of its facilities or operating units within a call center, unless it gives Cal-WARN Act compliant notice. The law specifies that relocation of a call center includes when the employer intends to move its call center—or its facilities with at least 30 percent of the call center’s total volume—or substantially similar operations to a foreign country.

Call center employers may provide a single notice; however, the notice must say, “This notice is for the relocation of a call center” at the top of it.

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