Stay on Top of New Laws, Regulations in the New Year

1. Big change to Cal/OSHA citations
A new law adds two new Cal/OSHA violation categories that carry penalties of up to $124,709 per violation – the same as for “repeated” or “willful” citations currently. SB 606 adds “enterprise-wide” and “egregious” violations to the mix, giving Cal/OSHA broader leeway to cite employers it finds are flagrantly violating California’s workplace safety regulations.

The law creates a rebuttable presumption that an employer with multiple worksites has committed an enterprise-wide violation if:

• It has written policies or procedures that violate Cal/OSHA regulations, or
• The agency has evidence of a practice of it skirting the rules at one or more of its locations.

If the employer is unable to rebut this presumption, Cal/OSHA can issue an enterprise-wide citation that would require abating the violation at all locations. The employer can also face a maximum penalty of $124,709 per violation. SB 606 also authorizes Cal/OSHA to issue a citation for an egregious violation if it believes that an employer has willfully and egregiously violated an occupational safety or health standard, order, special order or regulation.
The reason this could get expensive for an entity hit with egregious violations is that each instance of employee exposure to that violation will be considered a separate violation.

2. COVID exposure notification
AB 654 updates requirements for what an employer must do if there is an outbreak of COVID-19 cases at its worksites.
This law curtails earlier-reporting requirements as well as other required notifications, and updates several provisions of an earlier outbreak notification law as follows:

• Firms have one business day to report a workplace COVID-19 outbreak to Cal/OSHA and health authorities. Employers do not need to issue notices on weekends and holidays.
• When an employer has multiple worksites, it only needs to notify employees who work at the same worksite as an employee who tests positive for coronavirus.

3. California Family Rights Act
AB 1033 expands the CFRA to allow employees to take family and medical leave to care for a parent-in-law with a serious health condition.
It also adds a requirement that mediation is a prerequisite if an employer with between five and 19 workers is the subject of an employee lawsuit.

Workers Can Take Family Medical Leave to Care for In-Laws

4. Workplace settlement agreements and NDCs
A new law took effect Jan. 1 that prohibits employers from requiring non-disclosure clauses in settlement agreements involving any workplace harassment or discrimination claims. This builds on prior law that barred NDCs only in cases of sex discrimination or sexual harassment.
The new law expands that prohibition to all protected classes, such as disability, race, age, religion, etc.

One important note: While employees can’t be prohibited from discussing the facts of the case, employers can still use clauses that prohibit the disclosure of the amount paid to settle a claim.

Also, employers can still include non-disparagement clauses or similar provisions in agreements, as long as they also include specific language stating the employee’s right to discuss the facts of the case.

5. New minimum wage
Effective Jan. 1, employers will have to start paying their employees a higher minimum wage. The minimum wage for workers at operations with 25 or fewer employees bumped up to $14 an hour, while it jumped to $15 an hour for workers at firms with 26 or more employees.

The increases are part of a state law that has steadily hiked the minimum wage since Jan. 1, 2017, when it was around $10. Please note that many jurisdictions in the state have minimum wages that are higher than the state minimum wage, including San Francisco at $16.32 an hour, $16.45 an hour in Palo Alto and Emeryville at $17.13.

6. Wage theft penalties
AB 1003, which took effect Jan. 1, adds a new penalty to the California Penal Code: Grand Theft of Wages. The law makes an employer’s intentional theft of wages (including tips) of more than $950 from one worker, or $2,350 for two or more, punishable as a grand theft.

The law, which also applies to wage theft from independent contractors, allows for recovery of wages through a civil action.

7. COVID cases may be included in X-Mods
The Workers’ Compensation Insurance Rating Bureau of California has proposed plans to start requiring COVID-19 claims to be included when calculating employers’ X-Mods. The proposal,would bring to an end current rules that exclude the impact of COVID-19 workers’ compensation claims on X-Mods. If approved by the state insurance commissioner, the new rule would apply only to claims with an injury date on or after Sept. 1, 2022.

8. Notices can be e-mailed
A new state law authorizes employers to distribute required posters and notices to employees via e-mail in addition to mail. Required posters and notices will still need to be posted in the workplace.

9. Warehouse quota rules
Under a new law warehouse employees must be given a written description of the quotas to which they are subject within 30 days of hire.
Common quotas include the number of tasks the worker must perform, the materials to be produced or handled, and any adverse employment action that may result from a failure to meet the quota.

Employees are not required to meet a quota if it:

• Prevents them from taking required meal or rest periods,
• Prevents them from using the bathroom (including the time it
  takes to walk to and from the toilet), or
• Contravenes occupational health and safety laws.

QUOTA RULES OVERHAULED: Warehouse workers can’t be held to quotas that are unreasonble under the new law.

10. Personnel records retention
As of Jan. 1, employers are required to retain personnel records for applicants and employees for a minimum of four years (up from the previous requirement of three years).

That time could be expanded further if the employer is notified that a complaint has been filed through the California Department of Fair Employment and Housing.

In such instances, the records must be retained until either the matter has been resolved.