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Gov. Gavin Newsom closed California’s 2020-2021 Legislative Session with a flurry of bill signings, many of which created and/or updated employment-related laws. A few of these bills were “emergency bills” which became effective immediately (such as the COVID-related right to rehire and sick pay laws), while others do not become effective until Jan. 1, 2022. Employers should ensure that their policies, procedures, and systems comply with these new and updated laws.
California’s Regulation of Quotas in Warehouse Distribution Centers
On Sept. 22, 2021, Governor Newsom signed AB 701, aimed at regulating quotas in warehouse distribution centers, into law. Effective Jan. 1, 2022, employers with 100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers in the state must provide to each nonexempt employee, upon hire, or by Jan. 31, 2022, a written description of each quota to which the employee is subject. This bill also sets certain standards for what constitutes an enforceable quota and for the employer’s obligation to respond to information requests.
Employers should carefully review their quota systems to first determine if the quotas are necessary, and if so, ensure compliance with this new law by preparing clear written descriptions for each and every quota. A more in-depth discussion of the provisions of the AB 701 can be found here.
California Prohibits Quotas in Chain Pharmacies
On Sept. 27, 2021, Governor Newsom signed SB 362, which prohibits a chain community pharmacy from establishing a quota for measuring or evaluating the performance of a pharmacist or a pharmacy technician. The law defines “quota” as “a fixed number or formula related to the duties for which a pharmacist or pharmacy technician license is required, against which the chain community pharmacy or its agent measures or evaluates the number of times either an individual pharmacist or pharmacy technician performs tasks or provides services while on duty, ” and includes fixed numbers or formulas related to prescriptions filled, services rendered to patients, programs offered to patients, and revenue obtained. The law also provides examples of measurements and evaluations that do not constitute a prohibited quota.
Employers operating chain community pharmacies should review this law to ensure that they remove any metrics or quotas that violate this new law before it is enacted on Jan. 1, 2022.
The Silenced No More Act Expands Restrictions on Settlement and Separation Agreements
On Oct. 7, 2021, Governor Newsom signed into law SB 331, or the “Silenced No More Act,” which updates existing laws to place new restrictions on nondisclosure and non-disparagement provisions in agreements with employees and former employees. The Silenced No More Act both clarifies and expands existing laws that prohibit non-disclosure provisions that prevent the disclosure of harassment and discrimination claims in settlement and employment-related agreements. While previously limited to the prevention of sex-based claims, the revised laws now prohibit such non-disclosure provisions if they have the effect of preventing disclosure of any harassment or discrimination claims, not just those based on sex. This act also adds a new prohibition on such provisions in separation agreements and identifies specific language and notice requirements that must be contained in the agreements.
It is important for employers to update their agreements now so that they are compliant when the law takes effect on Jan. 1, 2022. A more in-depth discussion of the provisions of the Act can be found here.
Expansion of California Family Rights Act to Include Medical Leave to Care for a Parent-in-Law
On Sept. 27, 2021, Governor Newsom signed AB 1033, which expands the protections provided by the California Family Rights Act (“CFRA”). Specifically, employees that qualify for protected family care and medical leave under the CFRA will be able to use such leave to care for a parent-in-law, defined as the parent of a spouse or domestic partner, beginning Jan. 1, 2022.
Employers must ensure that their human resources departments and leave administrators are educated on this expanded right.
OSHA Gains Increased Enforcement Power Over Workplace Safety
On Sept. 27, 2021, Governor Newsom signed SB 606 greatly increasing the California Division of Occupational Safety and Health’s (“CAL/OSHA”) enforcement power over places of employment in California. This new law creates a rebuttable presumption that an employer with numerous worksites who has committed a violation, committed this violation “enterprise-wide” if certain circumstances are present. If the employer fails to rebut this presumption, the new law authorizes CAL/OSHA to issue an enterprise-wide citation requiring enterprise-wide abatement at each employer location in California. In addition, CAL/OSHA will now be able to issue a citation for an “egregious violation,” for every willful and egregious violation determined by CAL/OSHA and each instance of an employee exposed to that violation will be considered a separate violation for purposes of fines and penalties.
Finally, CAL/OSHA may now, in the process of investigating an employer’s policies, issue a subpoena if the employer fails to promptly provide the requested information, and to enforce the subpoena if the employer fails to provide the requested information within a reasonable time period.
CAL/OSHA may now also seek an injunction restraining certain operations at a workplace simply on the basis that it has the grounds to issue a citation, expanding CAL/OSHA’s current power to seek injunctive relief.
Employers should ensure that they are complying with all relevant CAL/OSHA regulations and if cited, act quickly to remedy an identified violations.
