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November 11, 2021

AG & THE LAW: New California Employment Laws for 2022

The end of another active Legislative bill-signing session has Gov. Gavin Newsom once again enacting several significant new employment related laws impacting California employers. Below is a summary of many of the laws affecting employers in the state. All are effective January 1, 2022, unless otherwise noted.

AB 73 – Health Emergencies, Employment Safety, Agricultural Workers, Wildfire Smoke.

AB 73, also known as the “Farmworker Wildfire Smoke Protection Act,” is intended to protect agricultural workers from the hazards of wildfire smoke by allocating state resources to fund the creation of bilingual educational materials and stockpiles of protective masks.

The bill requires Cal/OSHA to review and update its existing “protection from wildfire smoke training” and post those updates on its website. The bill also requires employers to modify existing training methods to provide training in a language and manner readily understandable by its employees, considering ethnic and cultural backgrounds, education levels, and including the use of pictograms as necessary.

Signed into law Sept. 27, 2021, the Act took immediate effect.

SB 572 – Labor Commissioner Liens on Real Property

SB 572 expands current Labor Commissioner authority to create, as an alternative to a judgment lien, a lien on real property to secure amounts due to the commissioner under any final citation, findings, or decision. Existing law allows the Labor Commissioner the same authority with regard to recovering amounts due under final orders in favor of an employee named in the order.

This expansion creates a direct means for the state to collect monies due from employers ordered to pay civil penalties for violations of state law, including the failure to pay minimum wage.

To avoid the imposition of a real property lien, employers issued final citations, findings or decisions for labor code violations, should seek immediate legal consultation.

SB 606 – Cal/OSHA Enterprise-Wide Violations

SB 606 creates an “enterprise-wide” rebuttable presumption for employers with multiple worksites who violate an occupational safety or health standard, order, special order, or regulation. The presumption applies if the employer has a written policy or procedure that violates Cal/OSHA provisions or there is a record evidencing a pattern or practice of the same violation committed by the employer involving more than one of its worksites.

If an employer cannot rebut the presumption, SB 606 authorizes Cal/OSHA to issue an enterprise-wide citation for egregious violations for each willful violation (as determined by Cal/OSHA), and count each employee impacted by the violation as a separate violation for purposes of the issuance of fines and penalties. In other words, the maximum penalty would be assessed per violation, per employee. The statutory amendments of SB 606 also authorize Cal/OSHA to investigate the employer’s policies and practices or those of any related employer entity, to issue and enforce a subpoena for any failure to provide requested information. The ability to seek an injunction or temporary restraining order has also been authorized.

SB 639 – Minimum Wages for Persons with Disabilities

SB 639 is the culmination of several subsequent Presidential and Gubernatorial legislative acts that have pushed forward the rights of developmentally disabled workers to receive the same legal rights and responsibilities guaranteed all other persons by the United States and California Constitutions, regardless of the severity of their disabilities. The bill ends current exemptions, and after Jan. 1, 2022, prohibits the issuance of any special licenses authorizing the employment of mentally and/or physically disabled workers at less than the prevailing minimum wage.

Existing licenses will be phased-out and rendered inoperative as of Jan. 1, 2025 (or sooner should a multiyear phaseout plan be released before that date).

SB 646 – Private Attorneys General Act; Janitorial Employee Exemption

An exception to the Private Attorneys General Act (PAGA) is created by SB 646 for janitorial employees under certain specified conditions. To be excepted from PAGA mandates a janitorial employee must meet specified criteria such as: 1) being represented by a labor organization that has represented janitors before January 1, 2021; and 2) being employed by a registered janitorial contractor as a property service employer in the year 2020 with respect to work performed under a valid collective bargaining agreement in effect any time before July 1, 2028 (additional mandates apply).

Janitorial employees may still bring an action under California’s Labor Code if a court or administrative agency finds the labor organization has breached its duty to fairly represent its collective workers in relation to any Labor Workforce Development Agency claim.

AB 654 – COVID-19 Exposure Notification

In December 2020, California AB 685 was signed into law requiring non-healthcare employers who identified three or more cases of COVID-19 (i.e., an “outbreak”) at a worksite within a 14-day period to report such information to their local health department within 48 hours. AB 654 amends this requirement to allow an employer 48 hours or one business day, whichever is later, to notify its local health department of a COVID-19 outbreak. The new law also expands existing exemptions to include community clinics, adult day health centers, community care facilities and child day care facilities.

Western Growers Advocacy at Work

Existing law under AB 685 requires the California Department of Public Health (CPDH) to make workplace industry information received from local public health departments available on its website in a manner that allows the public to track the number and frequency of COVID-19 outbreaks and the number of COVID-19 cases and outbreaks by industry reported by any workplace. AB 654, as initially drafted, included a requirement that this public listing include the name of each worksite impacted by a COVID-19 outbreak.

Western Growers assisted successfully in leading a coalition opposition to this requirement that resulted in this specific provision being amended out of the bill.

AB 654 takes effect immediately and is scheduled for revocation January 1, 2023.

SB 657 – Distribution of Employment Information: Electronic Documents

Employers subject to posting requirements must conspicuously place required notices in an area of the workplace frequented by employees throughout the workday. A decrease in the number of workers frequenting the workplace—along with a corresponding increase in the number of remote workers—has caused employers to question how best to comply with posting mandates in a virtual environment. California’s newly signed SB 657 provides clarity and peace of mind.

The law allows, “in any instance in which an employer is required to physically post information, [to] also distribute that information to employees by email with the document or documents attached.” It is important for employers to note that while SB 657 allows electronic distribution, it does not eliminate the employer’s obligation to physically display required postings within its existing workspace.

AB 701 – Warehouse Distribution Centers

Impacting warehouse distribution operations throughout California, AB 701 makes significant changes to employers with 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers. The definition of “warehouse distribution center” provided within the statute will make this new law applicable to various agricultural operations.

Once the law takes effect it will require employers to provide each employee, upon hire or within 30 days, a written description of each quota applicable to the employee. This includes providing the “qualified number of tasks to be performed or materials to be produced or handled, within the defined time period and any potential adverse employment action” resulting from a failure to meet the quota. The bill also prohibits the setting or enforcement of any quota that prevents an employee from complying with statutory meal and rest periods, using bathroom facilities, or violating occupational health and safety laws.

The bill uses the North American Industry Classification System (NAICS) Codes to define an “establishment” for purposes determine whether the operation is subject to the statute’s quota disclosures:

•   (A) 493110 for General Warehousing and Storage.

•   (B) 423 for Merchant Wholesalers, Durable Goods.

•   (C) 424 for Merchant Wholesalers, Nondurable Goods.

•   (D) 454110 for Electronic Shopping and Mail-Order Houses.

The name or designation given to any establishment is irrelevant in determining applicability of the statute. SB 701 does exempt NAICS Code 493130 (Farm Product Warehousing and Storage) from quota requirements under the statute. However, even agricultural businesses operating establishments that fall under NAICS code 424 Nondurable Goods, will be impacted.

Violations include monetary penalties, injunctive relief and the recovery of attorneys’ fees. Violators may also be subject to penalties in representative actions brought under the Private Attorneys General Act (PAGA). However, the statute does include a PAGA safe-harbor provision allowing employers an opportunity to cure alleged violations.

SB 807 – Enforcement of Civil Rights: Department of Fair Employment and Housing

This statutory amendment enacts several important changes impacting tolling and jurisdictional mandates of the Department of Fair Employment and Housing (DFEH) as well as employment record retention periods associated with complaints alleging workplace violations of California’s Fair Employment and Housing Act (FEHA).

This bill makes several procedural changes to the way the DFEH enforces California’s civil rights laws under the FEHA. These changes include 1) modifying when and how the DFEH can appeal adverse superior court decisions regarding the scope of DFEH petitions to compel compliance with investigations of the department associated with violations of employment-related complaints; and 2) tolling the amount of time the DFEH has to file a civil action while dispute resolution efforts are pending.

SB 807 also extends current record retention requirements for employers to four years. As amended, Government Code Section 12946 will now require employers to retain personnel records for applicants and employees for four years from the date the records were created, or the date the employment action was taken. (NOTE: This is in addition to retention requirements that apply once a complaint has been filed). The bill also extends the period in which an individual can file a civil action for violations of certain statutes, by tolling the filing period while the DFEH investigates and/or takes action on behalf of an individual complainant.

SB 807 also increases the time the DFEH has to complete its investigation and issue a right-to-sue notice for employment-related discrimination complaints treated by the DFEH as a class or group complaint to two years.

SB 87 – California Small Business COVID-19 Relief Grant Program

This bill, signed into law on February 23, 2021, established the California Small Business COVID-19 Relief Grant Program with California’s Office of Small Business Advocate (CalOSBA). SB 87 is a bill providing for appropriations funding for small business grants in an effort to assist qualified small and underserved businesses impacted by COVID-19. The bill includes taxable year exclusions and requires the California Franchise Tax Board to adopt regulations necessary and appropriate to implement these taxable exclusions. Audit and recapture procedures are built into the bill to assure criteria oversight.

This bill took effect immediately upon signing.

AB 1003 – Wage Theft (Grand Theft)

AB 1003 elevates existing liability by making the intentional theft of wages or tips by employers punishable as grand theft.

An employer’s intentional theft of wages or gratuities in an amount greater than $950 for one employee, or $2,350 for two or more employees, and in any consecutive 12-month period, is now punishable as grand theft. This increases the existing penalty for grant theft and creates a new Penal Code Section (Cal. Pen. Code Section 487(m)). Criminal prosecutors will now have the discretion to decide whether to charge an employer with a misdemeanor (imprisonment in a county jail for up to 1 year) or felony (imprisonment in county jail for 16 months or 2 or 3 years), by a specified fine, or by a fine and imprisonment.

AB 1003 also includes the following:

•   Defines “theft of wages” as the intentional deprivation of wages, gratuities, benefits or other compensation, by unlawful means, with the knowledge that the wages, gratuities, benefits or other compensation is due to the employee under the law.

•   Makes clear that the term “employee” includes independent contractors, and “employer” includes the hiring entity of an independent contractor.

•   Authorizes wages, gratuities, benefits, or other compensation subject to the prosecution to be recoverable as restitution.

•   Allows the employee or the Labor Commissioner the right to commence civil action seeking remedies as allowed under the Labor Code.

SB 338 – Joint and Several Liability of Port Drayage Motor Carrier Customers.

The passage of SB 388 expands the usual set of circumstances under which port drayage contractors will be placed on the DLSE’s enforcement list and expands joint liability to customers of that contractor. Carriers—or customers of the carrier—with prior offences and subsequent judgment, ruling, citation, orders, decisions, or awards finding a violation of a labor or employment law or regulation—even if the appeals period has not yet expired—will find their citation information publicly posted on the DLSE’s webpage.

This expanded liability means customers of a listed port drayage carrier will also shoulder liability, including civil legal responsibility and civil liability, owed to the state for port drayage services obtained after the date the carrier appeared on the prior offender list. This could also extend potential responsibility and liability for employment tax assessments issued by the state and civil liability stemming from the carrier’s failure to comply with applicable laws, rules and regulations.

SB 331 – Settlements and Non-disparagement Agreements

Recent legislative changes prohibit an employer from preventing the disclosure of factual information related to actions in the workplace related to a claim(s) (civil or administrative) that include allegations of sexual assault (e.g., sexual harassment, workplace harassment/discrimination based on sex, or retaliation).

SB 331 clarifies these existing prohibitions and expands them to include acts of workplace harassment or discrimination not based on sex. This new legislation makes it unlawful for an employer to require an employee to sign a non-disparagement agreement or any other document if it would have the purpose or effect of denying the employee the right to disclose information about such conduct. The prohibition also extends to any agreement related to an employee’s separation from employment.

AB 1033 – California Family Rights Act

AB 1033 expands the California Family Rights Act to include leave to care for a parent-in-law within the existing definition of family care and medical leave. This amendment also modifies the Department of Fair Employment and Housing’s existing Small Employer Family Leave Mediation Pilot program as follows:

•   Requires the Department of Fair Employment and Housing (DFEH) to notify an employee who receives an immediate Right-to-Sue notice of the requirement to mediate prior to filing a civil action where either they or the employer have requested mediation. This notice by the DFEH must be in writing.

•   Requires an employee who has filed an administrative complaint with the DFEH to contact the department and to indicate whether they are requesting mediation before filing a civil action.

•   Allows an employer to stay any pending civil action or arbitration in favor of mediation if the employer did not receive notification of its right to mediate due to the employee’s failure to contact the DFEH regarding mediation.

•   Imposes various time restrictions on the DFEH once it makes the decision to pursue legal action on behalf of an employee.

Agricultural Awareness in the Legislature

ACR 60 – BeeWhere Month

Honoring the efforts of the California Association of Pet Control Advisors, the California Agricultural Commissioners and Sealers Association, and the Commissioners of Riverside, Butte and Shasta counties in forming the BeeWhere program, California’s ACR 60 proclaims the month of April of each year as “BeeWhere Month.” The BeeWhere program is a comprehensive apiary registration and notification program offering beekeepers, pest control advisors, and pesticide applicators useful resources to help protect and sustain California’s bee population.

ACR 27 – Farm-to-Fork Corridor

Honoring the efforts of Butte, Sutter, Tehama and Yuba counties in their efforts to provide fresh agricultural commodities and produce to generations of Californians and the greater United States, ACR 27 authorizes the designation of a portion of State Route 99 as the “Farm-to-Fork Corridor.” This designation also salutes the City of Sacramento, known as “America’s Farm-to-Fork Capital.”

SB 721 – California Farmworker Day

California’s agricultural sector makes up 2 percent of our state’s economy. As one of the top agricultural producing states in the nation, California produces over 400 different globally exported commodities (e.g., two thirds of all U.S. fruits and nuts and more than one-third of all U.S. vegetables). Farmworkers are vital to California, contributing skilled labor necessary to feed Californians and those around the globe. SB 721 honors this tremendous contribution by declaring August 26 of each year as “California Farmworker Day.”

AB 941 – Farmworker Assistance

This bill authorizes the appropriation of funds to establish grant programs to enable California counties to establish farmworker resource centers to provide farmworkers and their families information and access to services related to such things as labor and employment rights, education, housing, immigration and health and human services.

Western Growers Advocacy at Work

AB 616 – Agricultural Labor Relations: Legal Representative Elections

Western Growers spearheaded a collaborative effort of agricultural organizations and allied industry partners in a concerted opposition effort that lead to the veto of AB 616. One of the most notable victories of the 2021-2022 legislative session, AB 616 would have denied farmworkers of the most basic democratic protections in union elections and shifted election oversight powers to the UFW.

In his veto message, Gov. Newsom said the bill contained “various inconsistencies and procedural issues related to the collection and review of ballot cards…. Significant changes to California’s well-defined agricultural labor laws must be carefully crafted to ensure that both agricultural workers’ intent to be represented and the right to collectively bargain is protected, and the state can faithfully enforce those fundamental rights,” he said. He wrote that he would direct the Labor Agency to “work collaboratively with the Agricultural Labor Relations Board and all relevant stakeholders to develop new policies for legislative consideration to address this issue.”