As we begin the new year, it’s time to review the new laws that became effective January 1st. While not as expansive as in prior years, there are several new laws impacting the workplace. Below is a summary of the new employment laws that should be noted.
Personnel Record Retention Expanded to Four Years
Current law provides that employers are required to maintain personnel records for two years. Under this new law, the time requirement for record retention is now four years. In addition, if an employer receives notice that a complaint has been filed with the Department of Fair Employment and Housing (DFEH), the employer must maintain the records until either a resolution of the complaint or four years, whichever is greater. (SB 807)
CFRA Rights Expanded to Include “Parent-In-Laws”
Last year, California enacted changes to the California Family Rights Act (CFRA) to cover employers with 5 or more employees and also expanded the definition of “family member” to include grandparents. To further expand and clarify the amendments to CFRA the recent change adds “parent-in-law” to the definition of “family member.”
With this change, employees are now entitled to request CFRA to attend to the serious health condition of their parent-in-law among the other family members for which CFRA leave is also available. (AB – 1033)
Electronic Posting of Employment Information
Due to the fact that so many employees are working remotely and would not see any poster physically posted in the workplace, the legislature enacted a bill that permits employers to electronically distribute information to employees via email. Employers must continue to physically display all required notices in the workplace.
Specifically, the law provides that “[i]n any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached. Email distribution pursuant to this section shall not alter the employer’s obligation to physically display the required posting.” (SB 657)
Emotional Support Dogs In the Workplace
If an employee seeks to bring an emotional support dog to work, the employer may require the employee to provide medical certification supporting the fact that the animal is certified for emotional support. New legislation now provides that a healthcare provider that certifies the emotional support dog as a medical accommodation must now comply with the following specific requirements:
- Possess a valid and active license to provide such professional services,
- Have established a client relationship with the individual seeking documentation for at least 30 days before providing the documentation,
- Have completed a clinical evaluation of the individual prior to providing the documentation, and
- Provide verbal or written notice that fraudulently representing the dog as an emotional support animal is a misdemeanor.
If the employee is unable to provide medical certification which complies with the above, the employer may seek to deny the emotional support dog as an accommodation. (AB 468)
Settlement Agreements To Contain New Language
The “Silenced No More Act” was recently passed which provides that, as of January 1st, settlement agreements to resolve allegations of workplace harassment or discrimination may not contain any provision prohibiting the disclosure of information pertaining to alleged acts of workplace harassment or discrimination, based not only on sex, but also based on any protected classification.
Any provision that limits an employee’s ability to disclose information related to conditions in the workplace must also state: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”
The Act also prohibits employers from requiring employees to sign a non-disparagement agreement or any other document (such as a severance or separation agreement) that would restrict the employee’s ability to disclose or discuss information regarding conduct the employee has reason to believe is unlawful.
For separation and severance agreements for employees under the age of 40, the new law requires employers to notify the employee that they have at least five days to consider the agreement. However the employee has the right to sign the agreement prior to the expiration of this five-day period.
Provisions in any severance or settlement agreement that are in violation of this Act are deemed contrary to public policy and will be found unenforceable.
Settlement and severance agreements can continue to contain clauses:
- That prevent the disclosure of the amount paid to settle the claim,
- That contain a legally-valid general release or waiver of all claims,
- That protects an employer’s trade secrets, proprietary information, or confidential information that are not related to unlawful acts in the workplace,
- That denies the allegations made by an employee. (SB 331)
Arbitration: Timing of Payment of Arbitration Fees To Avoid Waiver
The use and scope of arbitration agreements for employment related disputes is an on-going issue in California. When an employee brings a claim that is subject to arbitration, the employer is required to pay certain fees and costs associated with the proceeding. If the employer becomes 30 days past due in the payment of the arbitration fees, such action is now deemed a breach of contract, and employees may then elect to proceed with the arbitration or bring the case in court.
Under this new law, the arbitration provider must immediately provide to all parties an invoice for any fees and costs required before the arbitration can proceed, or fees and costs required to continue the arbitration. The invoice must state the full amount owed, the due date, and must be provided to all parties by the same means and on the same date it is generated. For arbitration proceedings that require payment of fees and costs during the arbitration, if no time frame for payment of an arbitration invoice is established in the agreement, payment is due upon receipt. Any extensions to payment due dates, whether for prepayment or payment during arbitration, must be agreed to by all parties.
Failure to comply with payment time frames can result in the imposition of sanctions against the drafter of the agreement (usually the employer) or loss of the ability to arbitrate the claim, at the election of the employee. (SB 762)
Wage Theft is “Grand Theft”
Any intentional theft of wages in an amount greater than nine hundred fifty dollars ($950) from any one employee, or two thousand three hundred fifty dollars ($2,350) in the aggregate from two or more employees, by an employer in any consecutive 12-month period, can be punishable as either a misdemeanor or felony, and the wages or other compensation subject to such a prosecution are recoverable as restitution. The law applies to wages, gratuities, benefits, and other compensation owed to employees or independent contractors. (AB 1003
This Newsletter is intended as a brief summary of employment law. While every effort has been made to ensure the accuracy of the information contained herein, it is not intended to serve as “legal advice,” or to establish an attorney-client relationship. If additional information is needed on any of the topics contained herein, please contact our office. All rights reserved. ©2022.