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26 Oct

October 2021 California HR Legal Updates

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California Employer’s Record Retention Expanded

Update Applicable to:
All employers in California.

What happened?
On September 23, 2021, Governor Newsom signed SB 807 into law.

What are the details?
The law, effective January 1, 2022, expands the current record retention requirements for California employers and how the Department of Fair Employment and Housing (DFEH) enforces California’s civil rights laws. The record retention period has been extended to four years from the date the records were created or the date the employment action was taken.

In addition, SB 807 extends the period in which an individual can file a civil action for violations of specific statutes by tolling that period while the DFEH investigates and/or takes action on a complaint.

After the filing of any employment discrimination complaints that would be treated by the DFEH as a class or group complaint, the DFEH will have 2 years to complete its investigation and issue a right-to-sue notice.

The law can be read here.

An article on the law can be found here.

What do employers need to do?
Employers should review the law and their record retention policies to make any updates in time for when the law is active on January 1, 2022.

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California Imposes Significant New Restrictions on Severance and Settlement Agreements

Update Applicable to:
All employers in California.

What happened?
On October 7, 2021, Governor Newsom signed Senate Bill 331 (SB 331) into law to impose new restrictions on severance and settlement agreements.

What are the details?
Effective January 1, 2022, the following key provisions from SB 331 will be required during a severance or settlement agreement:

  • Time to consider the agreement
  • Right to consult an attorney
  • Disclosure of FEHA claims
  • Disclosure of unlawful workplace acts
  • Non-disparagement provisions
  • Other provisions (general release or waiver of all claims, prohibit disclosure of trade secrets and information, and require the amount of severance to be paid to remain confidential)


For more information, please see the links below:

Senate Bill 331

Article 1

Article 2
 

What do employers need to do?
Employers should review the links provided above, revise their severance and settlement agreement templates, and prepare for the upcoming change taking effect on January 1, 2022.

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California Passes Law on Job Performance Quotas for Large Warehouse Facilities

Update Applicable to:
Employers with warehouse distribution centers and storage centers in California.

What happened?
On September 22, 2021, Governor Newsom signed AB 701 into law.

What are the details?
The law, effective January 1, 2022, requires employers with large warehouse distributions centers to disclose quotas and pace-of-work standards to each employee upon hire or within 30 days of the law going into effect. The law applies to employers that employ or exercise control over the wages, hours, or working conditions of 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more distribution warehouse centers in California. The law clarifies warehouse distribution centers covered by this law with NAICS Codes the following NAICS Codes are included in the covered establishments:

The new law also provides that employees are not required to meet quotas that prevent compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws. If a current or former employee believes that a quota has caused a violation of such laws, the employee may request, and the employer must provide, a written description of each quota applicable to the employee and a copy of the most recent or last 90 days of the employee’s own personal work speed data. A former employee is limited to one request. Additionally, the law presumes retaliation if employers take adverse action against employees who, have taken the actions described in the Law in the previous 90 days.

The law can be read here.

Articles discussing the new law are found here and here.

What do employers need to do?
Employers should review the law and their current policies and processes for quotas to make any changes to stay in compliance with the law. The law firm Fisher & Phillips LLP recommends employers evaluate current quotas, create and produce written quotas for each employee, create a process for data requests, and pause before taking adverse actions.

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California Bill Allows Required Notices and Postings to be Emailed to Employees

Update Applicable to:
All employers in California.

What happened?
On July 16, 2021, Governor Newson signed SB 657 into law.

What are the details?
The law, effective January 1, 2022, makes a change to assist employers that have remote workers. The law allows that in any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached. This does not remove an employer’s obligation to physically display postings.

The law can be found here.

An article on the law can be read here.

What do employers need to do?
Employers should review the law and their posting/notice policies to prepare and make any required updates for the new allowance the law provides by January 1, 2022.


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Los Angeles County Issues Public Health Order Requiring COVID-19 Vaccine Verification or Proof of Negative Results

Update Applicable to:
All employers of hospitality businesses in Los Angeles County.

What happened?
On October 7, 2021, Los Angeles County issued a new public health order that would affect operators of hospitality businesses.

What are the details?
Effective as of October 7, 2021, Los Angeles County is requiring that operators of hospitality businesses must verify COVID-19 vaccination or proof of negative test results from customers/attendees per new public health Order.

This order will influence operators of:

  • Outdoor mega-events (a mega event is defined as 1,000 indoor or 10,000 outdoor attendees)
  • Bars, wineries, distilleries, nightclubs, and lounges for indoor services
  • Restaurants and food facilities

For more information, please see the  links below:

Public Health Order

Article 1

Article 2

What do employers need to do?
Employers should review the above links and review their COVID-19 safety protocols.

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California Passes New Legislation that Prevents Food Delivery Platforms from Retaining Amounts Designated as Tips of Gratuity

Update Applicable to:
All food delivery service employers in California.

What happened?
On October 5, 2021, Governor Newsom passed Assembly Bill No. 286 (AB 286), which amends the Fair Food Delivery Act of 2020 and adds more regulations on online food delivery services.

What are the details?
Effective January 1, 2022, food delivery businesses will not be allowed to retain any portion of amounts designated as a tip or gratuity. Food delivery platforms will be required to pay any tip or gratuity for a delivery order, in its entirety, to the person delivering the food or beverage and to pay any tip or gratuity for a pickup order, in its entirety, to the food facility.
 
The bill also requires food delivery platforms to disclose to the customer and food facility a cost breakdown of each transaction.
 
The cost breakdown must include:

  1. The purchase price of the food and beverage
  2. A notice that the food delivery platform charges a fee, commission, or cost to the food facility; unless the facility directs the delivery platform to disclose to customers the delivery fee charged to the facility and each fee, commission, or cost charged to the facility.
  3. Each fee, commission, or cost charged to the customer by the delivery platform
  4. Any tip or gratuity

For more information, please see the links below:

Assembly Bill 286

Fair Food Delivery Act of 2020

Article 1

Article 2

What do employers need to do?
Employers should review the links above and prepare to adjust their overall charging fees to stay in compliance with the new law effective January 1, 2022.

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California Passes Garment Worker Protection Act

Update Applicable to:
All garment industry employers in California.

What happened?
On September 27, 2021, Governor Newsom signed Senate Bill No. 62 (SB 62) to protect garment workers from abusive labor practices.

What are the details?
Effective January 1, 2022, California requires that employers can no longer pay employees “engaged in the performance of garment manufacturing” by piece rate.
 
Moreover, “garment manufacturing” now includes “sewing, cutting, making, processing, repairing, finishing, assembling, dyeing, altering a garment’s design, causing another person to alter a garment’s design, affixing a label to a garment, or otherwise preparing any garment or any article of wearing apparel or accessories designed or intended to be worn by any individual.” 

Although employers can still pay garment workers incentive-based bonuses (which should be included when calculating an employee’s regular rate of pay), employers must now pay garment workers at an hourly rate that is not less than the applicable minimum wage.

For more information, please see the links below:

Senate Bill No. 62

Article 1

Article 2

What do employers need to do?
Employers should review the links above and prepare to make changes to their payroll system to stay in compliance with the upcoming law change.

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California Implements New Restrictions on Severance Agreements, Non-Disparagement and Confidentiality Agreements

Update Applicable to:

All employers in California.

What happened?
On October 7, 2021, Governor Newsom enacted Senate Bill 331 (SB 331).

What are the details?

The bill, effective January 1, 2022, enacts additional restrictions on employers offering severance agreements and settling claims alleging harassment, discrimination, or retaliation based on purported violations of the Fair Employment and Housing Act.

The new law creates an unlawful employment practice against employers that prevent disclosing of information about unlawful acts of harassment, discrimination, or retaliation in the workplace in severance agreements, rendering such agreements unenforceable and against California’s public policy. 

Further, non-disparagement agreements must, effective 2022, include language relating to the employee’s right to disclose information about unlawful acts in the workplace substantially similar to: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”

For more information, please see the links below:

SB 331
Article

What do employers need to do?
Employers should review the new bill and its applicable policies to make the required changes to stay in compliance with the law by January 1, 2022.


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