Los Angeles, Calif. (February 15, 2022) -  The California legislature kept busy this past year, passing numerous labor and employment related laws. While there were fewer COVID-19 related laws than the previous year, the legislature continued its pattern of increasing regulations on businesses and employers. The list below provides a summary of the most significant employment related laws of 2021, all of which are in full effect as of January 1, 2022, unless otherwise specified.

COVID-19 Related Laws

SB 93

This bill has significant impacts on hospitality-related employers seeking to rebuild and expand their businesses amidst the COVID-19 pandemic. The law creates return rights for workers who were displaced or laid-off because of the pandemic. Importantly, employers must offer laid-off employees in writing all job positions that become available for which the laid-off employees are qualified.

The employer also must offer positions to the laid-off employees based on a preference system. A "laid-off employee" is any employee who worked for the employer for six months or more in the 12 months preceding January 1, 2020, and whose most recent separation from active service was related to the COVID-19 pandemic. Additionally, the bill prohibits an employer from refusing to employ, terminating, reducing compensation, or taking other adverse action against a laid-off employee who seeks to enforce their rights under this bill. This law will remain in effect until December 31, 2024.

AB 654

In 2020, the legislature enacted AB 685 to provide guidelines and requirements for reporting workplace COVID-19 exposure. AB 654 clarifies the written notice requirements. It also adds renewable natural gas to the list of critical government functions that cannot be interrupted by a Cal/OSHA entry prohibition due to the risk of exposure to COVID-19.

Other Employment Related Laws

AB 1003

This bill makes an employer's intentional theft of wages, including gratuities, in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees, in any consecutive 12-month period a criminal offense punishable as grand theft. Importantly, this criminal prosecution does not affect an employee's or the Labor Commissioner's rights to recover these losses in a civil action.

AB 1033

This bill expanded the definition of family care and medical leave to include leave to care for a parent-in-law under the California Family Rights Act.

AB 701

AB 701 is intended to protect workers from the increasing demands of e-commerce by raising standards for workplace safety. Employers covered under AB 701 include those with 100 or more nonexempt employees at a single warehouse distribution center, or one thousand or more nonexempt employees at one or more warehouse distribution centers in the state. Covered employers are required to provide each nonexempt employee with a written description of each quota to which the employee is subject, including the quantified number of tasks to be performed, materials to be handled within the defined time period, and any potential adverse employment action that could result from failure to meet the quota.

Importantly, the bill provides that an employee shall not be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws. Moreover, the bill prohibits an employer from taking adverse action against an employee for failure to meet a quota that has not been disclosed or for failure to meet a quota that does not allow a worker to comply with meal or rest periods. The bill also gives employees the right to request a description of quotas to which they are subject and data reflecting their personal work speed from the most recent 90 days.

SB 331

SB 331 expands the prohibition on provisions in settlement agreements preventing the disclosure of factual information related to a filed claim. Now, a provision in a settlement agreement may not prevent or restrict disclosure of factual information relating to claims involving discrimination, harassment, or retaliation, regardless of the protective class on which the claim is based. This is a major expansion from the previous law, which previously only prohibited provisions preventing disclosure of factual information relating to claims involving workplace harassment or discrimination based on sex. Significantly, the new updates in the bill apply only to agreements entered into on or after January 1, 2022. Please look out for a more detailed client alert on this new law in the near future.

SB 762

This bill closes a gap in current law regarding the payment of arbitration fees by establishing clear guidelines for when an arbitrator must send an invoice containing the total amount due and the due date. The basic requirements of the new law are that arbitration providers must provide invoices stating the total amounts due, with due dates to all parties, on the same date and in the same manner.

To protect consumers and employees who can no longer bring their claims in court, the law provides a recourse for employees when the employers and businesses fail to timely pay arbitration fees in attempts to delay the arbitration. Specifically, when a business or employer is more than 30 days past due on an arbitration payment, they are considered in material breach of the agreement and the consumer or employee may elect to proceed with the arbitration or bring the case in court. While this seemed like appropriate protection, there were previously no requirements governing when an arbitrator was required to send the invoices or how the payments and due dates must be disclosed. This created a loophole where employers could receive undisclosed payment extensions solely for the purpose of delaying arbitration proceedings.

Under SB 762, the arbitration provider must immediately provide to all parties an invoice for any fees and costs required before the arbitration can proceed, or fees and costs required to continue the arbitration. The invoice must state the full amount owed, the due date, and must be provided to all parties by the same means and on the same date it is generated. For arbitration proceedings that require payment of fees and costs during the arbitration, if no time frame for payment of an arbitration invoice is established in the agreement, payment is due upon receipt. Any extensions to payment due dates, whether for prepayment or payment during arbitration, must be agreed to by all parties. Importantly, SB 762 does not affect the 30-day grace period for payment after a deadline has passed.

SB 606

SB 606 establishes a rebuttable presumption that an employer's written policy that violates a specified health and safety regulation exists at all of an employer's work sites. The bill allows the Division of Occupational Safety and Health to issue an enterprise-wide citation requiring abatement if the presumption is not rebutted. It also creates a definition of "egregious violation," or willful violation, that adds specified additional penalties. Certain state agencies are exempt from the provisions of this bill.

SB 62

This bill expands the definition of garment manufacturing to include dyeing, altering a garment's design, and affixing a label to a garment. Except as specified, the bill prohibits any employee engaged in garment manufacturing to be paid by the piece or unit, or by the piece rate. The bill also establishes joint and several liability for damages against any garment manufacturer, contractor, or brand guarantor who contracts with another person for the performance of garment manufacturing. Lastly, the bill requires those engaged in garment manufacturing to keep all contracts, invoices, purchase orders, and any other relevant documentation for four years.

SB 646

SB 646 applies to janitorial employees defined as an employee whose primary duties are to clean and keep in an orderly condition commercial working areas and washrooms, or the premises of an office, multi-unit residential facility, industrial facility, healthcare facility, amusement park, convention center, stadium, racetrack, arena, or retail establishment. Janitorial employees represented by a labor organization and covered by a collective bargaining agreement in effect before July 1, 2028, are exempt from the provisions of the Private Attorneys General Act (PAGA), so long as the agreement meets all of the specified additional criteria. The provisions of this bill remain in effect until July 1, 2028. Importantly, this bill does not affect PAGA cases filed by a janitorial employee before the effective date of the bill.

SB 807

This bill makes procedural modifications to how the Department of Fair Employment and housing (DFEH) enforces California's civil rights laws. SB 807 tolls the statute of limitations for

violations of various civil rights laws under investigation by the DFEH until either the DFEH files a civil action for the alleged violation or one year after the DFEH issues a written notice that it has closed its investigation. Significantly for employers, this bill extends the retention requirement for employment-related records and files from two years to four years, specifically when a complaint has been filed.

AB 1561

AB 1561 extends the sunset on the exemption from the Dynamex ABC test decision for employment status for licensed manicurists and subcontractors in the construction trucking industry. A previous law in 2019, AB 5, codified the Dynamex decision and exempted certain professions from its coverage in order to give the state the opportunity to adopt a regulatory framework for the exempt professions. As no such framework has been adopted, AB 1561 extends the sunset on the exemptions from AB 5.

SB 321

SB 321 requires the Division of Occupational Safety and Health (Cal/OSHA) to convene an advisory committee to provide voluntary guidance and make recommendations on policies the state may adopt to protect the health and safety of privately funded household domestic service employees. Additionally, the bill requires Cal/OSHA to release and publicly post a report of the advisory committee to its website by January 1, 2023. The goals of this bill include educating both household domestic services employees and employers about workplace hazards and prevention and minimization of work-related injuries and illnesses.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.