Employment Law Top Ten(ish) Changes for 2024
Happy New Year!
It is time to dust off the employee handbook, review your policies and procedures, and make sure they comply with all the new laws, regulations, and interpretations that have either already gone into effect or will in early 2024.
Below, we have identified our “top 10(ish)” changes. Please keep in mind there were hundreds of laws, regulations, and changes implemented at the local, state, and federal levels throughout 2023. So, if you need a handbook/policy review or have any questions, please call.
1. California and Local Minimum Wage Raised – In addition to the gradual increase to minimum wage by the state, several Sonoma County cities have increased minimum wage beyond that required by the state. Below is a table that describes the state and local city requirements:
|Minimum Salary (for Exempt Employees)
Action: Review your payroll to ensure all employees are being paid the new minimum wage, send written notice of the wage change to affected hourly employees, and be sure your salaried exempt employees are earning at least the minimum salary threshold. Please note that many other cities and counties in California, as well as twenty-two (22) other states have passed higher minimum wage requirements. Remember that employees should be paid minimum wage based on where they work, whether it be a satellite office or their own home, and that location may have higher minimum wage than your main worksite.
2. Increased Mandatory Sick Leave Hours – California has increased the minimum sick leave from 3 days/24 hours to 5 days/40 hours. Employees continue to accrue one (1) hour for every thirty (30) hours worked, but now employers must permit employees to use a minimum of five (5) days per year, and employees can roll over hours from year to year, with a minimum cap of 10 days/80 hours. If you give employees a lump sum each year, this is still permissible, but you have to increase the lump sum amount to at least 5 days/40 hours. Do not forget, employees may also use up to half of their yearly accrual for assisting a close family member who is sick (called “kin care”).
Action: Review and update your handbook and payroll software to ensure your employee sick leave caps are properly updated.
3. Reproductive Loss Available Under Bereavement Leave – Last year, all employers with five (5) or more employees were required to adopt a mandatory bereavement leave policy, offering five (5) days of unpaid leave to an employee whose close family member has died. This year, the right to leave is expanded to employees who have suffered a “reproductive loss event” which includes miscarriage, a failed surrogacy, a stillbirth, an unsuccessful “assisted reproduction” (e.g., artificial insemination or embryo transfer, etc.), or a failed adoption.
Action: Review and update your handbook to ensure you have the new mandatory bereavement leave and update it to reflect the right for leave due to reproductive loss. Although not expressly stated in the statute, it appears the law will apply to both parents involved in the reproductive loss.
4. Workplace Violence Prevention Plan – By July 1, 2024, employers must adopt a Workplace Violence Prevention Plan and incident log, similar to the existing Injury and Illness Prevention Plan and COVID-19 Prevention Plan. Effective training must also be provided. Records of workplace violence hazards, evaluations, corrections, and incident logs must be maintained for 5 years. Employees are also entitled to receive copies of such records within fifteen (15) days of requesting them.
Action: Draft a workplace violence prevention program and incorporate training into existing safety programs. Employers excluded from this law are those with only teleworkers, and places of employment that are not accessible to the public and have fewer than ten (10) employees working at a location at a given time.
5. Protections Regarding Marijuana Use – Two laws were passed to further protect employees who may use marijuana.
a. Drug Tests – Passed in 2022 and officially in effect as of January 2024, employers must not discriminate against an employee for off-duty marijuana use. This means that if you have a drug testing policy, the test must be able to determine whether the employee is under the influence of marijuana during work hours before you can hold the employee accountable for drug use. You must also refrain from testing for “non-psychoactive metabolites” which would include CBD use. The new law does not apply to the building and construction trade and other positions that require a federal pre-employment drug screening.
Action: If you have not done so already, update your handbook to clarify prohibited conduct to be on-duty marijuana use, and confirm with your drug testing facility whether they have the appropriate testing available.
b. Questions About Marijuana Use – Even if you do not have a drug testing policy, you may not question an applicant about their marijuana use or discriminate against an employee for off-duty marijuana use.
Action: Update training for supervisors and managers regarding this right. Ensure your interview questions are updated as well.
6. Pregnant Workers Fairness Act (PWFA) – Since June 27, 2023, the PWFA requires all employers with fifteen (15) or more employees, to provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions (unless the accommodation causes the employer an undue hardship). California employers with five (5) or more employees already had to comply with the Fair Employment and Housing Act (FEHA) regarding pregnancy, reasonable accommodation, and lactation accommodation. The PWFA and our state counterpart highlight an employer’s obligations to engage in the interactive process to find accommodations for employees who may have common pregnancy related ailments. Some accommodations to consider include: allowing the employee to drink water at their workstation, closer parking, the ability to sit at the workstation, appropriately sized uniforms and safety apparel, additional break times to use the bathroom or eat, and reassignment of hazardous or strenuous duties.
Action: Ensure managers are trained to identify when an employee may need pregnancy-related accommodations. You must also consider offering accommodations before placing an employee on leave. Update your handbook if information about accommodations does not include reference to pregnancy-related limitations.
7. Updates to Criminal History Background Checks – Taking effect October 1, 2023, California has fine-tuned the current “Ban the Box” laws governing criminal history background checks. Currently, employers must: (1) only complete a criminal history check after a conditional offer of employment is issued; (2) review the information on the report and make an individualized assessment of the convictions to determine if they disqualify the employee; (3) communicate the tentative choice to withdraw the offer of employment and allow the employee to provide additional information; and (4) provide specific notices to the employee throughout the process. The new law requires the same rules to apply to criminal history checks of employees who were not just hired. Employers must not put anything in a job advertisement that would discourage applicants from applying based on their criminal history (unless more rigorous criminal history standards are required under federal law). Employers must not consider voluntary information provided by an applicant, prior to making the job offer. The law provides specific ways in which the employer should assess the compatibility of the employee with the position and to consider any further information provided by the employee regarding why they committed the crime or why they are qualified for the position.
Action: Ensure your background check provider complies with both federal and state law in terms of the specific notices and authorizations given to an employee prior to conducting the check. Also, ensure their template notices and communications are compliant with the law. If in doubt, contact CMPR to assist in making the decision as to whether an employee’s criminal history may disqualify them for the position.
8. Using Artificial Intelligence in the Workplace – President Biden and Governor Newsom issued executive orders in late 2023 that both recognized the substantial consequences the development and proliferation of Artificial Intelligence (“AI”) will have on the workforce. While the focus is on guidance in the development of principles and best practices to mitigate harms and maximize the benefits of AI for workers, the executive orders made it clear that existing use of AI to discriminate against, undercompensate, or prevent workers from organizing will not be tolerated. Federal agencies have focused on employer use of AI and are investigating and penalizing discrimination through such use. For example, the U.S. Equal Employment Opportunity Commission settled its first lawsuit involving the alleged discriminatory use of AI in the workplace, involving hiring software that automatically rejected older applicants in violation of federal law.
Action: Vet your vendors and the software, ensure your team is knowledgeable about how AI can go wrong, and ensure accommodations are available to avoid unfair treatment. If you use any software to find and assess applicants, to assist with performance management, use virtual assistants/chatbots, or use “job-fit” or “culture-fit” software, you should ensure you closely monitor the way the software works, and routinely test it to ensure it is not creating a disparate impact on employees that could lead to claims of discrimination or harassment.
9. Non-disparagement Clauses – In 2023, the National Labor Relations Board (NLRB), which governs both unionized and non-unionized workplaces (but does not apply to many supervisor positions), ruled that an overbroad non-disparagement clause or agreement violates employee’s rights under Section 7 of the National Labor Relations Act (NLRA). After that ruling, the NLRB issued guidance stating that confidentiality clauses that are “narrowly-tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications” are lawful. However, such agreements that prohibit the employee from discussing their working conditions with others, including the media, are a violation of the NLRA.
Action: Have your handbook, Confidentiality Agreements, Proprietary and Intellectual Property Agreements, Severance Agreements, and Settlement Agreements reviewed and edited to bring them in line with the guidance from the NLRA.
10. Legal Pitfall for Terminations After Legal Complaints – Beginning January 1, 2024, employers who terminate or otherwise take adverse employment actions (demotion, pay decrease, etc.) against an employee will be presumed to have retaliated against the employee if the action is taken within ninety (90) days of that employee’s complaint about legal rights. Thus, if an employee is terminated within ninety (90) days of a complaint (whether the complaint is well-founded or incorrect, or motivated by ill-intent), they will not have to prove the termination was motivated by retaliatory intent. In a lawsuit, the employer will begin the case in a defensive position, having to overcome the presumption by presenting clear and convincing evidence that the termination or demotion was due to non-retaliatory motives.
Action: Train supervisors, managers, and your Human Resources team to ensure they do not make adverse employment decisions without serious thought and documentation if the employee at issue has made a complaint about legal rights within the last ninety (90) days.
11. COVID-19 Regulations – A reminder that Cal/OSHA Permanent Standards remain in place until at least February 2025. The “permanent” guidelines: (1) end exclusion pay for employees who contract COVID while at work; (2) mandate notice to all potentially exposed employees but relaxes the specifics of what it says and how it is communicated; (3) refer exclusion and return to work guidelines to the California Department of Public Health (CDPH); and (4) refer the definition of “exposure” to the CDPH, among other things. Some highlighted changes are as follows:
a. Definition of “Exposure” – the CDPH defines an exposure to be a cumulative of 15 minutes in a 24-hour period in the same “airspace” as the person with COVID, if the airspace is 400,000 cubic feet or smaller. This translates to most homes, waiting rooms, and airplanes. If the person was in a space larger than this (or outside), then the person will be considered “exposed” if they were within six feet of the person for the requisite amount of time. This could be open floor plan offices, large retail stores, manufacturing plants, etc. The regulations will make an exception for persons who were “passing through” the space occupied by an infected person.
b. Exclusion and Return to Work – Again, the CDPH has taken on the challenge of keeping this guideline updated. Currently, anyone who was exposed to COVID need NOT be excluded from work unless they have COVID-like symptoms. Otherwise, exposed employees should wear a well-fitting face mask for ten (10) days while inside. They should also test 3 – 5 days after exposure. For anyone who tests positive, the employee must stay out of work for at least five (5) days and can return once they test negative, do not have a fever and other symptoms are improving, or it has been ten (10) days, they do not have a fever and their other symptoms are improving.
Action: Ensure you are familiar with the Cal/OSHA requirements for excluding employees from the workplace, notice to employees regarding exposure, and meeting your obligations to mitigate COVID exposure in the workplace. Ensure all current policies are in writing and communicated to your employees.
Key Cases From 2023 – As usual, there were dozens of employment law cases decided this year that impacted employers. We would like to call your attention to three of these cases below.
Adolph v. Uber (2023 Cal. Supreme Court) – In 2022, the U.S. Supreme Court’s decision in Viking River Cruises appeared to eviscerate California Private Attorney General Act (PAGA) by allowing employers to mandate arbitration of the individual portion of that claim and throw out the representative portion. Unfortunately for employers, the California Supreme Court in Adolph v. Uber this year held that an employee may be forced to arbitrate their individual claims but retains the right to litigate the representative portion of the claim after arbitration is over. There are several cases still on appeal to further clarify employee rights under PAGA.
Action: Consider whether adopting an arbitration agreement is right for your company. In many cases, it can be a useful way to limit liability for class and PAGA actions.
Groff v. DeJoy (2023 U.S. Supreme Court) – Federal law (and state law, but this case focused on federal law) mandates that employers must reasonably accommodate the sincerely held religious beliefs and practices of their employees, provided that doing so does not result in undue hardship to the employer. For nearly 50 years, many courts had considered an undue hardship to be proven if the employer suffered a de minimus cost to comply with the request. The Groff case clarified that the standard is much higher than that. Employers must show that the burden of granting a religious accommodation would result in substantial increased costs in relation to the conduct of their particular business. The test will look at multiple factors including the particular accommodation at issue and its practical impact in light of the nature, “size and operating cost of an employer.”
Action: Consider how you are currently addressing religious accommodation requests. Ensure you are documenting the process of finding an accommodation and ensure staff and managers are trained to handle accommodation requests. When difficult circumstances arise, seek legal help to minimize legal liability.
Raines v. U.S. Healthworks Medical Group (2023 Cal. Supreme Court) – Kristina Raines was offered employment contingent on a medical screening by U.S Healthworks (USHW), a third-party health service provider hired by the employer. Raines’ employment offer was revoked after she failed to respond to one question on a health history questionnaire. Plaintiff sued USHW, alleging that the questions were intrusive and overbroad in violation of California’s Fair Employment and Housing Act, or the FEHA. The California Supreme Court held that employer’s business-entity agents with at least five employees that carry out “FEHA-regulated activities on behalf of an employer” can fall within FEHA’s definition of “employer” and may be directly liable for FEHA violations.
Action: If you use agents for medical, drug or credit screenings, or to provide any portion of Human Resources related work, ensure their practices are compliant with the FEHA. If you are a business who provides such services, also ensure you are complying with the FEHA to avoid direct liability to the employee or applicant.
We hope you have a wonderful 2024. Please contact Arif Virji, Samantha Pungprakearti, Justin Hein, Kristin Mattiske-Nicholls, or Sarah Hirschfeld-Sussman for help with your labor and employment law needs at Carle, Mackie, Power & Ross LLP, 707-526-4200.