The following are some of the new employment laws that went into effect on January 1, 2022.
Amendment to CFRA: In 2021, the California Family Rights Act (CFRA) was amended to require employers with 5 or fewer employees to offer protected leave if an employee or their family member has a serious health condition. AB 1033 adds “parent-in-law” to the definition of a “family member”. Thus, employees can take CFRA leave to care for a parent-in-law with a serious health condition.
Changes to Confidentiality Provisions in Settlement/Severance Agreements: In 2018, SB 820 made it illegal for settlement/severance agreements to contain provisions that would restrict the disclosure of factual information related to claims of workplace harassment or discrimination based on sex only. The new law, SB 331, expands SB 820 by stating that it is now illegal for any settlement/severance agreement to contain a provision that would restrict the disclosure of factual information related to any type of workplace harassment, discrimination or retaliation on all protected categories – not just based on sex. Please note, however, these agreements can still contain clauses that prevent the disclosure of the amount of the settlement.
Notice to Employees Required in Settlement/Severance Agreements: An employer offering an employee or former employee an agreement related to that employee’s separation from employment has to notify the employee that the employee has a right to consult an attorney regarding the agreement, and provide the employee with a reasonable time period of not less than five business days in which to do so. An employee may sign the agreement prior to the end of the reasonable time period as long as the employee’s decision to accept such shortening of time is knowing and voluntary, and is not induced by the employer through fraud, misrepresentation, or a threat to withdraw or alter the offer prior to the expiration of the reasonable time period, or by providing different terms to employees who sign such an agreement prior to the expiration of such time period.
Changes to Non-disparagement Provisions in Workplace Agreements: SB 331 also requires employers who use non-disparagement or other contractual provisions restricting the disclosure of workplace conditions to include language expressly informing employees that they are not precluded from reporting unlawful acts in the workplace.
Expanded Record Retention Requirements: SB 807 lengthens the amount of time employers are required to retain employment records (e.g., applications, personnel and employment referral records) to four years after the records are created, received, or after an employment action is taken. It also states that the records must be retained by an employer until the applicable statute of limitations has run or until the conclusion of any litigation, whichever occurs later.
Notice to Telecommuting Employees: Various Labor Code statutes require employers to post notices in conspicuous places in the workplace regarding a variety of employees’ rights. SB 657 allows employers to satisfy their obligation to telecommuting employees by distributing notice via email with the documents attached. Please note, however, the employer is still required to post hard copies of the same notices at the workplace.
Wage Theft: This new law states that the intentional theft of wages in an amount greater than $950.00 from one employee or $2,350.00 in the aggregate from any two or more employees within a 12-month period is considered grand theft and a felony in the state of California. Wage theft could be alleged if an employer fails to pay an employee minimum wage or overtime. Under the new statute, independent contractors are included within the definition of “employee”.
Minimum Wage Increases
Effective January 1, 2022, the California state minimum wage increased to $15.00 per hour for employers with 26 or more employees and $14.00 per hour for employers with 25 or fewer employees. On January 1, 2023, the state minimum wage will be $15.00 per hour for all employers. Certain California cities, such as Los Angeles, Santa Monica and West Hollywood, have enacted minimum wage ordinances that exceed the state minimum wage, and the higher wage rate must be applied. As a reminder, if an employee qualifies as exempt based on the type of work they perform, they also must be paid a monthly salary that is at least twice minimum wage. Thus, the salary for exempt employees must increase based on the new minimum wage.
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