By Tracy Long & Tracy Emmerich

The California 2022 legislature has once again passed employment laws that will go into effect on January 1, 2023 and beyond. As always, Leap Solutions is here to help you face them proactively and confidently. Our HR professionals have the knowledge, expertise, and resources to inform and guide you through ever-changing legislation and empower your company to thrive in 2023 and beyond.

In this issue of our newsletter:

• • 2023 Minimum Wage
  • Updates on current and new Legislative Bills
  • Meal and Rest Break Premium Pay
  • On-going Mandatory Harassments Prevention Training
  • Employee Handbook Review/Updates
  • Injury and Illness Prevention Program and COVID Prevention Plan
  • California Labor Law Posters

2023 Minimum Wage

January 1, 2023, brings another increase in the California state hourly minimum wage for both non-exempt and exempt salary workers. Due to the increased annual inflation rate, the minimum wage was increased to $15.50 per hour regardless of the number of workers employed by an employer. The exempt salary threshold is two times the minimum wage, therefore, it increases to $64,480 for employers regardless of the number of workers employed.

Local (city and county) minimum wage ordinance changes may also be effective January 1, 2023 (although some city’s effective dates, like San Francisco, are effective July 1, 2023). We recommend that a compensation review be conducted as soon as possible to ensure that you have identified those in your workforce who need to be brought to the minimum. Your review may reveal wage compression or other issues that you may want/need to address. Remember also to update your employment law posters.

M I N I M U M   W A G E

SB 1162 – Wage Transparency Eff: 1/1/2023
Upon request, employers are required to provide the pay scale (salary or hourly wage range) that the employer reasonably expects to pay for the position in which the employee is currently employed. Additionally, for employers with 15 or more employees, all job postings must include the pay scale for the position, even when using a third-party. Employers will also be required to maintain records of a job title and wage rate history for each employee for the duration of employment plus three years and be open to the Labor Commissioner for inspection. Civil penalties from $100 to no more than $10,000 may be assessed per violation.

The bill also affects private employers with 100 or more employees (or a private employer that has 100 or more employees hired through labor contractors) with expanded pay data reporting requirements effective on or before 5/10/2023.

What this could mean for you: Before recruiting for any position, you will want to perform a market-based compensation analysis.  In addition to helping you meet compliance requirements, an analysis gives you current business intelligence with benchmarks that provide the relative value of a position, helps you forecast salary budgets for planning, and gives your employees confidence that a fair pay system is used to determine wages. Please contact our HR Consultants for more information about market-based compensation analyses.

AB 152 CA COVID-19 Supplemental Paid Sick Leave – Eff: 9/30/2021
The CA COVID-19 Supplemental Paid Sick Leave (SPSL) has been extended through 12/31/2022. This is an extension to use the leave, not a new round of leave. SPSL requires that employers with 26 or more employees provide up to 40 hours (pro-rated for part-time) for isolation and quarantine, receiving or experiencing symptoms related to a COVID-19 vaccine, experiencing COVID-19 symptoms and seeking a medical diagnosis, and caring for a child whose school/daycare is closed due to COVID-19. An Additional 40 hours is available only when an employee or qualified family member for whom the employee provides care, tests positive for COVID-19. If an employee refuses to test or to provide proof of test results, the employee is not entitled to SPSL. New: An employer may require the employee to test 5 days after the initial positive test and show proof of results. Grants for qualified small businesses/nonprofits (26 to 49 employees) of up to $50,000 are also available to offset the cost of the leave through the CA Office of the Small Business Advocate.

What this could mean for you:  There are no test standards. If you require proof of positive tests (photo of test results), be consistent with all employees. Also ensure that you continue to meet the posting and wage statement requirements. The COVID Prevention Plan may also need to be amended.

AB 2693 COVID-19 Exposure Notification Extended and Revised – Eff:  1/1/2023 -1/1/2024
Existing law requires that an employer provide written notice, within one business day, to all employees on the premises, at the same worksite, when they receive a notice of potential exposure to COVID-19. As an alternative, that notice obligation may now be satisfied by prominently displaying a notice where all other employment notices are customarily posted (including an employee portal). It shall remain posted for not less than 15 days and the employer would be required to keep a log of all the dates the notice was posted at each worksite. Existing law also requires that the number of cases meeting the definition of a COVID-19 outbreak be reported by the employer to the local public health agency within 48 hours. This will no longer be required on the effective date.

What this could mean for you:  Since the notice obligation may be satisfied in two ways, you will need to determine which makes the best sense for your organization. The COVID Prevention Plan may also need to be amended.

AB 1041 – Expands Family Member to Include Designated Person – Eff:  1/1/2023 The California Family Rights Act (CFRA), which provides up to 12 workweeks of protected family care and medical leave to a qualifying employee and the Healthy Workplaces, Healthy Families Act of 2014 (HWHFA), which entitles an employee who works in CA for 30 or more days within a year to paid sick days, as specified, have expanded their family member definitions to include a “Designated Person.” Under CFRA, a designated person is defined as, “any individual related by blood or whose association with the employee is the equivalent of a family relationship.” Under HWHFA, a designated person is defined as “a person identified by the employee.” The designated person may be identified at time of leave, and the employer may limit the designation to one person per 12-month period. CFRA affects employers with five (5) or more employees. HWHFA affects employers of all sizes. Note: Paid Family Leave does not recognize a “designated person,” as a qualifying family member so EDD benefits would not be available.

What this could mean for you: Review and update existing handbook policies/practices and forms to ensure that employees are aware of the expanded definition and that both types of leaves are administered properly. Employers subject to FMLA (50 or more employees) will have additional burdens since a designated person is not a covered person under FMLA.

AB 1949 – Bereavement Leave Eff: 1/1/2023 with 5 or more employees
Employees who have been employed for at least 30 days prior to the commencement of the leave may be allowed up to 5 days of bereavement leave upon the death of a qualified family member. The leave must be completed within 3 months of the date of death and the time off does not have to be consecutive. Absent an existing policy, the time off is unpaid, however, the employee may use other available paid leave, including accrued and available paid sick leave. The employer may require documentation; however, the documentation is considered confidential and shall be treated as such.

What this could mean for you: A review of your current bereavement policy is needed to determine how it may integrate with the new regulation and the policy updated, if warranted.

SB1044 – Emergency Condition Retaliation Eff: 1/1/2023
The new law prohibits an employer, in the event of an “Emergency Condition” as defined, from taking or threatening adverse action against any employee for refusing to report to, or for leaving, a workplace or worksite within the affected area because the employee has a “reasonable belief” that the workplace or worksite is unsafe. The law also prohibits an employer from preventing any employee from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of the situation, or communicating with a person to confirm their safety. Employers may require an employee to notify the employer of the emergency condition requiring the employee to leave or refuse to report to the workplace or worksite, if feasible. There are certain classifications of employees who are exempt from this law including first responders and those involved in providing aid during an emergency response.

What this could mean for you:  Emergency conditions are those conditions of disaster or extreme peril and/or an order to evacuate that are caused by natural forces or a criminal act and do not include a health pandemic. A reasonable belief means that a reasonable person, under the circumstances, would conclude there is a real danger of death or serious injury. Due to the lack of clarity, each situation will need to be reviewed on a case-by-case basis.

AB 2183 Agriculture Labor Relations Eff: 1/1/2023
Farmworkers in California will have an easier process for forming unions for the next five years (Expires in 2028).  Existing law grants agricultural employees the right to form and join labor organizations and engage in collective bargaining with respect to wages, terms of employment, and other employment conditions, and authorizes employees to elect exclusive bargaining representatives by secret ballot.   AB 2183 changes the process in how agricultural employees can select whether to have union representation.

The bill establishes alternative procedures to the polling place election and authorize a labor organization to be certified as the exclusive bargaining representative of a bargaining unit through either a labor peace compact or a non-labor peace compact, dependent on whether an employer enrolls and agrees to a labor peace compact for labor organization representation campaigns. For calendar year 2023, this choice shall be made during the time period of January 1, 2023, through February 1, 2023. For all subsequent years, an agricultural employer shall exercise this option in the 30 days prior to January 1 of the following year.

A “labor peace compact” is defined as an agreement by the employer to make no statements for or against union representation to its employees or publicly, in any written or oral form, at any time during employee hire, rehire, or orientation, or after certain documents regarding organization are filed with the board. However, employers would be allowed to communicate truthful statements to employees regarding workplace policies or benefits.

If the employer agrees to a labor peace compact, then employees may decide whether to unionize through a newly created mail-in ballot election as an alternative to the polling place election. If the employer does not agree to sign a labor peace compact, then unions will be permitted to solicit employees to authorize the union to represent them – through  authorization cards, petitions, or other proof of majority support, rather than, mail-in or in-person secret ballot, process. Agricultural employers who commit unfair labor practices under the law face higher exposure, including civil penalties.

What this could mean for you: Agricultural employers should expect union organizers, especially the UFW, to kick in high gear and begin sweeping efforts to unionize using card check. Employers should be prepared with legal counsel ready in the event of UFW activity and have a response plan ready to go now.

AB 2188 Cannabis Employment Discrimination Eff: 1/1/2024
Beginning in 2024 (not 2023!), this new protection prohibits discrimination based on the person’s use of cannabis off the job and away from the workplace, which includes an employer-required drug screening test that has found the person to have “non-psychoactive” cannabis metabolites in their hair, blood, urine, or other bodily fluids. Exceptions apply for certain trades and where federal laws require applicants or employees to be tested for controlled substances. An employer may discriminate in hiring, or any term or condition of employment, or otherwise penalize a person based on scientifically valid preemployment drug screening that do not screen for non-psychoactive cannabis metabolites.

What this could mean for you: Employers may need to look for alternative testing to determine impairment. Employers may still maintain a drug-free and alcohol-free workplace policy where employees may not possess, be impaired by, or use cannabis on the job.

Meal and Rest Break Premium Pay
The burden of meal break compliance proof rests squarely on the employer. It is imperative that non-exempt employees document their meal breaks daily on their time records and that premiums are paid timely. Premiums must be reported on the employee’s pay statement when an employee misses or does not complete their full (at least 30 minutes) meal period.  Meal and/or rest break premium pay is considered “wages,” similar to overtime premium pay, reporting time pay, or split-shift pay. Failure to pay can cause expensive waiting time and wage statement penalties.  In very limited situations, when the nature of the employee’s duties prevents the employee from being relieved of all duty, certain designated employees may be authorized to work an “on-duty meal period.” (An example would be a lone cashier at a gas station who works the night shift.) An employee will be permitted to take an on-duty meal period only if the nature of their job requires an on-duty meal period, and the employee and the company have agreed, in advance, and in writing, to an on-duty meal period. In this situation, the on-duty meal period will be paid and treated as hours worked.

Ongoing Mandatory Harassment Prevention Training

Employers with five or more employees must provide one hour of sexual harassment prevention training to nonsupervisory employees and two hours of training to employees with supervisory authority. (This includes part-time, temporary, seasonal, and on-call staff as well as independent contractors, workers from staffing agencies, and employees outside of California, although you are only required to train supervisors located in California or those who supervise any California employees.)

• Training must take place within six months of hire or promotion and every two years thereafter.
• Seasonal and temporary employees or employees hired to work less than 6 months, must be trained within 30 calendar days after hire or within 100 hours worked, whichever is earlier.
• Employers are not required to train employees who are employed for fewer than 30 calendar days and work for fewer than 100 hours

Leap Solutions can provide interactive onsite or online Harassment Prevention training for your employees!

Employee Handbook Review/Updates

If your employee handbook hasn’t been reviewed in over a year, you may have missed out on important changes that could affect employee retention and increase your liability. Our HR consultants work with you to customize your handbook while ensuring that you and your employees have clear, up-to-date information to inform and to instruct.

Injury and Illness Prevention Program and COVID Prevention Plan

A written, effective Injury and Illness Prevention Program (IIPP) is required for every California employer and now so is a COVID Prevention Plan (CPP). We can develop a plan with you to ensure that you are in compliance!

Don’t Forget to Update Your California Labor Law Posters to Reflect 2023 Changes!

The California Department of Industrial Relations requires employers to post current information related to wages, hours and working conditions in an area frequented by employees where it may be easily read during the workday. Remote employees also need to receive required notices.

The CalChamber Store can help https://store.calchamber.com/20000034/products/posters/california-labor-law-posters

Leaping Forward

The HR professionals at Leap Solutions can demystify these and many other complicated new employment and labor laws for you, your employees and your hiring managers and supervisors. Count on us to guide you through the complexities of each new piece of legislation and help you respond efficiently, reduce legal risk, minimize expenses and achieve the peace of mind that comes with keeping your organization compliant and your people safe, strong and successful.

Are You Ready to Leap into 2022?

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Leap Solutions is a diverse group of highly skilled management, organizational development, and human resources, and executive search and recruitment professionals who have spent decades doing what we feel passionate about helping you feel passionate about what you do. Our HR specialists can help you get a handle on the ever-changing COVID-19 guidelines, programs, and legislation that may impact you and your employees. We are available to work with you to develop practical solutions and smart planning decisions for your organization’s immediate, near, and long-term needs.

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