Archives for November 14, 2023

Several New Laws Protect Workers’ and Survivors’ Rights Starting in 2024 

At Haeggquist & Eck, our lawyers are proud members of the California Employment Lawyers Association (CELA) because they fight for employee rights as we do. We stay up to date on current legislation and new laws that affect workers’ rights. Below are some of the new laws protecting workers’ and survivors’ rights that will be in effect as of January 1, 2024.¹   

Protecting Survivors from Weaponized Defamation Lawsuits – AB 933 

This new amendment strengthens the existing California defamation law to better protect speech made by survivors of sexual assault, harassment, and discrimination from retaliatory and baseless defamation lawsuits filed by those who harmed them and allows them to recoup their legal fees and seek treble damages if they successfully defend their defamation suit. The law now states that “communications made without malice regarding sexual assault, harassment, or discrimination” are privileged, and that if a survivor wins a defamation suit in these cases, the accuser who filed the suit is on the hook for the legal fees. Specifically, the survivor would be “entitled to reasonable attorney’s fees and costs, plus treble damages for any harm caused to them by the defamation action against them, in addition to punitive damages available.”   

Reproductive Loss Leave – SB 848 

California employees can now take up to 5 days of reproductive loss leave when experiencing a reproductive loss event, including a miscarriage, failed adoption, or an unsuccessful assisted reproductive technology procedure. This leave is in addition to the bereavement leave that employees can already take for the death of a family member. The reproductive loss leave must be taken within 3 months of the event and, in the absence of an existing policy, can be unpaid. An employer cannot refuse or retaliate against the employee for taking this leave or giving information or testimony regarding it.  

Workplace Violence Prevention Plan – SB 553 

This is the first workplace violence prevention law that requires California employers to create, adopt, and implement written workplace violence prevention plans that include annual training, violent incident logs, and the creation and retention of various records. Cal/OSHA will begin enforcing this new law on July 1, 2024. This law also allows employers or collective bargaining representatives of employees who have suffered violence or a threat of violence in the workplace to seek a temporary restraining order and an order after hearing on behalf of the employee and other employees.  

Equal Pay and Anti-Retaliation Protection Act – SB 497 

Existing law already protects employees by prohibiting employers from discharging or discriminating against them for reporting violations of the law or taking other protected actions. This amendment to the California Labor Code creates a rebuttable presumption of retaliation if an employee is disciplined or discharged within 90 days of certain protected activity. This makes it easier for employees to establish they have been retaliated against by their employer. It also prohibits employers from paying an employee a wage lower than the rate paid to another employee of the opposite sex for the same work and retaliating against an employee for examining, disclosing, discussing, or aiding with wage-related information. 

Employment Discrimination: Cannabis Use Outside of the Workplace – SB 700 

The California Fair Employment and Housing Act prohibits employers from discriminating against employees based on several categories. Employers are not allowed to discriminate against someone due to their use of cannabis outside of the workplace. Beginning in 2024, it is unlawful for employers to ask applicants about their prior use of cannabis. This exemption does not apply if employers are allowed to consider or inquire about that information according to the Fair Employment and Housing Act or other relevant state or federal laws. 

Non-Compete Agreements – AB 1076 

This codifies existing case law that states that any non-compete agreement entered into as part of an employment contract is void and unenforceable unless it meets certain exceptions. It makes it unlawful for an employer to include a non-compete clause in an employment contract or require an employee to enter a non-compete agreement that does not meet the exceptions. It also requires employers to notify current and former employees in writing by February 14, 2024, that the non-compete clause or agreement is void and unenforceable. Violating this law would be considered an act of unfair competition. 

Contracts in Restraint of Trade – SB 699 

This law prevents California employers from entering into contracts with employees or prospective employees that restrict their ability to engage in another lawful profession, trade, or business. It makes it illegal for employers or former employers to attempt to enforce contracts that are void under existing laws. If an employer violates this law, they will commit a civil violation and the employee, former employee, or prospective employee could take legal action to receive compensation for any damages and to cover attorney’s fees and costs. It also bans enforcement of non-competition agreements entered into between parties located outside of California if the employee has since then relocated to California or is otherwise seeking employment with a California company. 

Paid Sick Days Accrual and Use – SB 616 

The Healthy Workplaces Healthy Families Act of 2014 was amended to increase the paid sick leave requirement that employers in California must provide from 3 to at least 5 days or 40 hours within 6 months of employment. It also includes provisions on how employees can use paid sick days. This amendment excludes railroad employers and their employees from the act’s provisions and makes changes for CBA (Collective Bargaining Agreement) employees and certain individual providers of in-home supportive services. Lastly, it includes provisions that shall preempt any local ordinance to the contrary. 

Arbitration Appeal Delays – SB 365 

Corporations can no longer delay justice for workers and consumers. Previously, corporate defendants could effectively pause a worker’s or consumer’s case, sometimes for years at a time, by simply filing an appeal. With the passing of SB 365, cases can now move forward even if a company files an appeal, instead of putting the case on hold. 

Source: 

1. California Employment Lawyers Association 

Even before the COVID-19 pandemic, some Americans were already working remotely, many out of state. Working remotely for a company in one state from another can provide many benefits to both the employee and their employer. However, employment laws in most states are still catching up to this concept, which can leave several gray areas for both employees and employers to traverse.

California, with its thriving economy and diverse job market, often attracts talent from all corners of the globe. As a result, employers may find themselves managing a workforce that spans multiple states.

This can raise important questions about which labor laws apply to out-of-state workers, especially in a state with distinct labor regulations like California.

California’s labor laws are complex, especially for out-of-state employees. Employers, employees, and must all understand these regulations to ensure legal compliance and protect their rights. This understanding is crucial in navigating the intricate legal landscape of California’s employment laws. Employment and labor law attorneys understand out-of-state employees laws and can help you get the compensation you deserve.

Schedule a Free Case Evaluation Today!

Understanding Jurisdiction: Where Do California Labor Laws Apply?

California labor laws are renowned for their comprehensive nature, providing many employee protections. However, they primarily apply to individuals who perform work within the state’s borders. This includes individuals who physically work in California, regardless of their residency or the location of their employer. 

Typically, if an individual is working in California, they are subject to California labor laws, irrespective of where they live, including both part-time and full-time, in-state and out-of-state workers.

Legal Precedence and Interpretation

The application of California labor laws to out-of-state employers has been clarified through significant legal precedents. One noteworthy case, Sullivan v. Oracle, saw the California Supreme Court decisively ruling that California’s overtime laws extended to non-residents employed within California, even if their employer has headquarters in a different state.

Furthermore, the California Labor Code incorporates specific provisions that imply jurisdiction over out-of-state employers. For instance, Labor Code Section 558.1 explicitly holds individuals, including corporate officers or executives, accountable if they contribute to violations of wage payment laws, even if they operate from an out-of-state location.

This provision indicates that California labor authorities have the capacity to hold out-of-state employers responsible for infractions under California labor laws. This legal framework ensures that protections extend to all individuals working within California’s borders, regardless of their employer’s origin.

What California Labor Laws Cover

California labor and employment law offer many different protections to employees. Some of the most notable ones are as follows.

Minimum Wage and Overtime

California’s minimum wage laws are among the most progressive in the nation. Currently, the minimum wage varies based on the size of the employer and certain other factors. Out-of-state workers temporarily assigned to California must receive at least the state’s minimum wage for the duration of their assignment.

Overtime pay is also regulated, requiring employers to compensate non-exempt employees at a premium rate for hours worked beyond the standard 40-hour workweek.

California’s standard overtime regulations stipulate that any non-exempt employee who is 18 years of age or older or a minor employee aged 16 or 17 who is not mandated by law to attend school and isn’t otherwise legally barred from the work in question should not work for more than eight hours of any given workday, or beyond 40 hours in any workweek.

An employee should receive compensation at a rate of one and a half times their regular pay for all hours worked beyond eight hours in a workday and over 40 hours in a workweek (or double time as specified below).

By law, eight hours of labor constitutes a full day’s work. Any work beyond eight hours in a workday or exceeding six days in a workweek necessitates the employee receiving proper overtime compensation, which should not be less than:

One and a half times the employee’s standard rate of pay for all hours worked beyond eight hours up to and including 12 hours in any workday, and for the initial eight hours worked on the seventh consecutive day of the workweek, and

Twice the employee’s regular rate of pay for all hours worked beyond 12 hours in any workday and for all hours worked beyond eight on the seventh consecutive day of work in a workweek.

However, it’s important to note that there exist several exemptions to the overtime law, signifying that these regulations do not cover specific classifications of employees. Moreover, there are exceptions to the general overtime law outlined above, where overtime applies to particular classifications of employees on a different basis than we mentioned earlier.

Meal and Rest Breaks

California law mandates specific meal and rest break periods for employees. Failure to provide these breaks can result in penalties for employers. Out-of-state employees working in California must be afforded these breaks in accordance with state regulations.

In California, the law entitles most workers to the following designated breaks:

• A continuous, unpaid meal break of at least 30 minutes when their workday extends beyond five hours
• An additional uninterrupted, unpaid meal break of at least 30 minutes if their workday exceeds 12 hours
• A compensated 10-minute rest period for every four hours of work

It’s worth noting that specific categories of workers, like domestic workers and farm workers, are subject to distinct meal and rest break regulations. For further details on meal and rest periods, you can refer to the official resources provided by the Labor Commissioner.

Additionally, for outdoor workers, there are supplementary rights in place to safeguard against heat-related illnesses. Employers are mandated to permit outdoor workers to take breaks as necessary to cool off in a shaded area.

Sick Leave and Paid Time Off

California labor laws also dictate provisions for sick leave and paid time off, ensuring employees have access to necessary time off for illness or personal reasons.

Employees, whether in full-time, part-time, or temporary positions, qualify for paid sick leave in California if they have a minimum of 30 days of service with the same employer within a year.

Additionally, they must have completed 90 days of employment before they can begin using their accrued paid sick leave. However, if an employee is covered by a collective bargaining agreement that already offers paid sick days or paid time off, they are exempt from this law.

For 2023, employees deserve up to three days’ leave. In 2024, it will increase to five days of sick leave.

Discrimination and Harassment Protections

California has robust laws prohibiting workplace harassment and discrimination. These protections extend to all employees, regardless of their state of residence.

The California Fair Employment and Housing Act (FEHA) serves as the primary safeguard against employment discrimination in the state. It applies to employers with five or more full- or part-time employees, unlike comparable federal laws that typically cover employers with at least 15 employees. Consequently, more employers in California must comply with the state’s anti-discrimination regulations instead of federal guidelines. Although, FEHA anti-harassment law pertains to employers with one or more employees.

While many of the same anti-discrimination principles in federal laws are also in California’s FEHA, the state’s laws generally afford broader protection against discrimination in the terms and conditions of employment. In most cases, California law takes precedence over federal law when it provides greater protection for employees.

Both California and federal law cover the following categories:

• Age (40 years and older)
• Disability (encompassing mental and physical conditions)
• Genetic information. The federal Genetic Information Nondiscrimination Act of 2008 prohibits the use of genetic information in employment decisions and places strict limitations on its disclosure.
• Ethnicity/national origin, which includes restrictions on language use
• Pregnancy, including childbirth and related medical conditions
• Color
• Race
• Religion, covering beliefs, practices, and observances
• Sex, which includes gender identity or expression, as well as sexual orientation
• Military or veteran status

Additionally, the following categories are either protected under California law but not federal law or are more comprehensively defined in California:

• Ancestry
• Religious creed and observance. California state law offers extra safeguards for religious creed, encompassing religious dress and grooming practices not currently covered by federal EEO laws.
• Marital status
• Medical condition (inclusive of cancer and genetic characteristics)
• Pregnancy, which, under California law, extends to breastfeeding and related medical conditions, is currently not part of the federal definition
• Reproductive health decision-making

Traits historically linked to race, including but not limited to hair texture and protective hairstyles.

Workplace Safety

California employers are required to maintain a safe and healthy work environment. This includes compliance with the state’s Occupational Safety and Health Administration (Cal/OSHA) regulations.

Under the law, your employer must take measures to guarantee your safety and well-being, including providing adequate training and protective measures for you to carry out your duties safely.

Your rights regarding a safe workplace include:

• Proper Training: Your employer must ensure you receive thorough training regarding safety protocols on the job.
• Hazardous Materials Warning: You have the right to be informed about any hazardous materials to which you may have exposure during your work.
• Protective Gear: If your job involves working with hazardous or contaminated materials, your employer must supply you with appropriate protective gear.
• Request for Inspection: You can confidentially request an inspection of your workplace by the Division of Occupational Safety & Health if you suspect safety or health standard violations.
• Confidential Complaint Filing: If you observe or suspect any safety or health concerns at your workplace, you have the right to file a confidential complaint with the Division of Occupational Safety & Health.
• Refusal of Unsafe Work: You have the right to refuse work that goes against legally mandated safety or health standards. If you’re contemplating this action, consult an attorney to ensure legal protection.

Furthermore, your employer is prohibited from retaliating against you (e.g., demotion or termination) for either formal or informal complaints regarding workplace safety or health. You have six months from the date of any such retaliation to file a complaint with the state Labor Commissioner.

(For federal employees, this timeframe decreases to 30 days for filing a complaint with the Federal Department of Labor.)

Leaves of Absence

California provides various types of protected leaves to employees. Understanding these provisions is crucial for both employers and employees.

The types of leaves of absence you might deserve include:

• Family and Medical Leave
• Voting leave
• Jury duty
• Maternity leave
• Military service
• Organ and bone marrow donation
• Sick leave
• Crime victims leave
• Leave for school activities

Navigating Compliance: Legal Guidance for Employers and Employees

Given the complexities surrounding the application of California labor laws to out-of-state workers, seeking qualified legal advice is paramount. An experienced San Diego employment law lawyers can provide useful insights and ensure compliance with state regulations, protecting the rights of both employers and employees.

Remember that while California labor laws primarily apply to in-state workers, certain scenarios can extend these protections to out-of-state employees. 

All parties involved must understand these nuances. Consulting a knowledgeable employment attorney can offer invaluable guidance in navigating this complex legal terrain.