NEW CALIFORNIA EMPLOYMENT LAWS FOR 2022.

• Author: Terman, Mark E.

What employers Need to Know to Navigate the Regulatory Maze

To borrow from both the Grateful Dead and Miley Cyrus,"... what a long, strange trip it's been..." and "there's always gonna be another mountain... ain't about what's on the other side, it's the climb." Among the lasting 2021 impact of pclitic6, aberrant weather and wildfires--and COVID-19-is increased regulation of California employers. More than 330 bills introduced in the mo6t recent California legislative session mention "employer," compared to about 56c bills in 2020. While most bills did not pass the Legislature, many were signed into law by Gov. Gavin Newsom, bringing more rules and risks for employers in our state dealing with COVID-19, workplace safety, wage and hour rules, worker classification, working conditions, leaves of absence, pesters, Department of Fair employment and Housing matters, settlements and non disparagement agreements, and wage rates.

Clements of key state Assembly Bills (AB) and Senate Bills (SB) affecting private employers that became law Jan. 1, 2022 (unless otherwise noted) follow.

COVID-19 & WORKPLACE SAFETY

COVID-19 Expcsure Notification

Effective Oct. 5. 2021. AB 654 amends existing law (AB 685 enacted the prior year; see Page 7, January/February 2021 California CPA, "Employer Beware" to parallel provisions of Cal-OSHA's COVID-19 Emergency TemporaryStandard (dir.ca.gov/dosh/coronavirus/ETS.html) about employer-required notices of COVID-19 exposures (based on close contact with an infected individual) and outbreaks. AB 654 lists individuals and entities who must be notified, including all employees, and the employers of subcontracted employees, who were on the premises at the same worksite. This bill changes prior law that required notice to, "employees who may have been exposed." AB 654 also expands categories of employers who are exempt from the public health agency reporting requirements to include various licensed entities such as community clinics, adult day health centers, community care facilities and child day care facilities.

This bill amends Labor Code Sec. 6409.6.

Enterprise-wide and egregious Health & Safety Violations

SB 606 expands Cal-OSHA's enforcement tools by establishing new levels of workplace health and safety violations: "enterprise-wide" and "egregious" violations. If an employer has multiple worksites, the bill provides that there is a rebuttable presumption that a violation is enterprise-wide if the employer has a written policy or procedure that violates workplace health and safety laws, or Cal-OSHA "has evidence of a pattern or practice of the same violation ... committed by that employer involving more than one of the employer's worksites." Thereafter, if the employer fails to rebut the presumption of an "enterprise-wide" violation, CalOSHA may issue an enterprise-wide citation requiring enterprise wide abatement.

The bill empowers Cal-OSHA upon inspection or investigation to issue a citation deeming a workplace health and safety violation "egregious" where, among other reasons, the employer: "Intentionally ... made no reasonable effort to eliminate the known violation;" committed willful violations that "resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses;" or committed willful violations resulting in "persistently high rates of worker injuries or illnesses."

Subject to narrow exceptions, "each instance of an employee exposed to [an egregious] violation shall be considered a separate violation for the purposes of the issuance of fines and penalties." SB 606 adds "enterprise-wide violation" to the list of willful or repeated violation of any occupational safety or health standard or order, and certain other violations upon which a civil penalty may be assessed of not more than $124,709 for each violation, but in no case less than S8,908 for each willful violation.

This bill amends sees. 6317, 6323, 6324, 6429, and 6602 of the Labor Code, and adds sees. 6317.8 and 6317.9.

WAGE & HOUR,

WORKER CLASSIFICATION

& WORKING CONDITIONS

Employee Production Quotas

in Warehouse Distribution Centers

Citing the rapid growth of jusl-in-time logistics and of next-day consumer package deliveries and the belief that production quotas imposed on non-exempt warehouse distribution center employees fulfilling that supply chain incentivize non-compliance with workplace safety rules, increase meal and rest break violations, and nullify minimum wage increases the Legislature enacted AB...