New Laws to Be Aware of for 2024
Unless otherwise stated, the following laws are effective starting January 1, 2024. For more information on each of these, please register for our January Seminar – Legal Update 2024 – Employment Law Changes That Will Impact Your Business (see above).
Effective January 1, 2024, the state minimum wage will increase to $16.00/hr for all employers regardless of size. As we shared with you earlier this year, a number of California cities, including LA, Santa Monica, San Jose, San Francisco, West Hollywood, have local minimum wages that are higher than the state minimum wage. Employers need to comply with whichever law affords employees the highest minimum wage.
Increases in the state minimum wage impact not only minimum wage workers but also those employees that have been classified as exempt salaried workers because exempt salaried workers generally must be paid a base salary that is at least twice the state minimum wage for full-time employment (40 hours per week). Therefore, as of January 1, 2024, most exempt salaried workers must be paid no less than $66,560 annually to retain exempt status.
Paid Sick leave
Currently, employers are required to provide at least three days or 24 hours of PSL — with SB 616, that number increases to five days or 40 hours. The bill also raises the cap employers can place on PSL accrual from six days (48 hours) to 10 days (80 hours) and increases the number of sick days an employee can roll over to the next year from three days to five days.
Reproductive Loss Leave
SB 848, creates a new leave of absence for an employee’s reproductive loss, requiring employers to provide up to five days of leave for certain reproductive loss events defined in the law, including a miscarriage, failed adoption, failed surrogacy, stillbirth or an unsuccessful assisted reproduction.
This law applies to employers with five or more employees and covers employees that have worked for the employer for at least 30 days prior to the start of the leave. This leave must be taken within three months of the event unless the employee is on or chooses to take leave under another leave entitlement, such as the California Family Rights Act (CFRA), in which case the reproductive loss leave must be taken within three months of the other leave’s end date. The law provides that if an employee experiences more than one qualifying event, employers are not obligated to grant more than 20 days of leave within a 12-month period.
SB 553 enacted general industry workplace violence safety requirements that will be applicable to nearly all California employers and is under the California Division of Occupational Safety and Health’s (Cal/OSHA) jurisdiction. Under the new law, which takes effect July 1, 2024, covered employers will have a number of new obligations, including developing and implementing a workplace violence prevention plan (WVPP) either as a standalone document or as part of their required Injury and Illness Prevention Plan (IIPP), training employees on the plan, creating workplace violence incidence logs, and various recordkeeping requirements.
Under this new law, workplace violence is defined as any act of violence or threat of violence that occurs in a place of employment, including the threat or use of physical force against an employee, an incident involving a threat or use of a firearm or other dangerous weapon. Actual injury is not required. Workplace violence doesn’t include a lawful act of self defense or defense of others.
The plan must be in writing, and it must be available and easily accessible to employees, authorized employee representatives and representatives of Cal/OSHA at all times.
SB 553’s WVPP and related requirements have a delayed implementation date, taking effect on July 1, 2024. This provides employers with some much-needed time to create and implement their plan.
Off-duty Cannabis Use
AB 2188 will prohibit employers from discriminating against an employee or applicant based on the person’s off-duty, off-site cannabis use. Employers may still conduct preemployment drug testing, and an employer can still refuse to hire someone based on a valid preemployment drug screening that looks only for psychoactive cannabis metabolites. The law also doesn’t permit an employee to possess, be impaired by or use cannabis on the job, and it maintains employers’ rights and obligations in keeping a drug- and alcohol-free workplace. Employers are also prohibited from requesting information from a job applicant about their prior use of cannabis.
Discrimination, Harassment and Retaliation
California also expanded its retaliation protections via SB 497Under current law, employers cannot discriminate or retaliate against employees for engaging in certain protected activities, such as filing a complaint with the California Labor Commissioner for a wage and hour violation or serving as a whistleblower. SB 497 adds to the law a rebuttable presumption in favor of an employee’s claim if an employer takes adverse against the employee within 90 days of the employee’s protected action. This means the law will presume that the employer retaliated against the employee if they take an adverse action within 90 days of the employee’s protected activity, shifting the burden to the employer to rebut that presumption with sufficient evidence. The bill also expands the maximum civil penalty from $10,000 per violation to $10,000 per employee for each violation for any employer found to have retaliated against a whistleblower.
Labor Code section 2810.5 requires employers to provide a wage and employment notice to new hires that contains certain specified information, and AB 636 adds a requirement that employers also provide information about federal and state emergency declarations applicable to any counties in which employees are employed.
The bill also requires employers to provide additional information to H-2A employees, beginning March 14, 2024, describing an agricultural employee’s additional rights and protections under California law. Another bill requirement is for the California Labor Commissioner to, by March 1, 2024, create a template notice that employers can use for this obligation.
Minimum Wage – Industry Specific
AB 1228 creates the Fast Food Council, which will determine minimum wages, working hours and other working conditions for fast food restaurants.
The law raises the minimum wage for fast food restaurant employees to $20 per hour beginning April 1, 2024.
The law applies to fast food restaurants that are part of a fast food chain consisting of 60 or more establishments nationally that:
• Share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products and services; and
• Primarily provide food or beverages for immediate consumption on or off the premises to customers who order and pay for food before eating, with items either prepared in advance or prepared or heated quickly, and with limited or no table service.
In the health care sector, SB 525 establishes five new minimum wage schedules for certain health care employees depending on the nature of the employer. Wage increases under this law are generally scheduled to take effect on June 1, 2024, except for certain county owned facilities, which will begin compliance in 2025. This law applies to a wide range of health care facilities — the statute lists 20 types in the definition of covered facilities, including hospitals, skilled nursing facilities, mental and psychiatric care facilities, home health agencies, clinics, residential care and many others.
California law is very strict in the area of noncompetition agreements. Aside from some narrow exceptions, they are not enforceable — and AB 1076 codifies existing California case law to that effect, making it unlawful to include a noncompete clause in an employment contract or require an employee to enter a noncompete agreement that doesn’t satisfy specified exceptions.
The bill also requires employers to notify current and former employees who were employed after January 1, 2022, and whose contracts included a noncompete that doesn’t meet one of the exceptions that the noncompete clause or agreement is void, as specified. Employees with such contracts must be notified in writing by February 14, 2024.
A related bill, SB 699, adds that noncompete agreements are void regardless of where they are signed, i.e., regardless of whether the contract was signed and employment was maintained outside of California. The bill also provides employees with the right to seek injunctive action and civil penalties.
On October 10, 2023, the governor signed SB 723, which extends one extra year — to the end of 2025 — an existing law providing workers displaced by COVID-19 in certain industries with various recall rights when the employer has open positions. More importantly, however, SB 723 adds a presumption to the law, meaning that a covered employee separated from employment due to lack of business, reduction in force or other economic nondisciplinary reason is presumed to be separated due to a COVID-19-related reason unless the employer establishes otherwise.
Additionally, while there isn’t a brand-new COVID-19 law this year, it’s worth noting that two COVID-19 laws that have been on the books since 2020 are now coming off, sunsetting at the end of this year.
The first is California’s COVID-19 notice requirements found in Labor Code section 6409.6, which required employers to provide notice of COVID-19 exposures in the workplace. Employers should remember, however, that even after the state notice requirements expire, Cal/OSHA’s COVID-19 non-emergency regulations remain in effect. The regulations require employers to notify employees and independent contractors who had a close contact with a COVID-19 case, as well as any employer with an employee who had a close contact, as soon as possible, and in no case longer than the time required to ensure that the COVID-19 exclusion requirements are met. (And that’s just the tip of the iceberg; as a reminder, Cal/OSHA’s COVID-19 non-emergency regulations also require employers to follow specific rules with respect to exclusion from and return to work, COVID-19 testing, face coverings and respirators, and ventilation through February 3, 2025.)
Second on the way out are California’s COVID-19 workers compensation laws, enacted in 2020, that created rebuttable workers’ compensation presumptions for employees, first responders and health care personnel who contracted COVID-19, as well as required employers to inform their workers’ compensation carrier of COVID-19 cases in the workplace. Those provisions sunset at the end of 2023.