New Laws Affecting Employers in 2023
By Sharilyn Payne, Attorney
Noland, Hamerly, Etienne & Hoss
As Published in the Salinas Valley Business Journal, January 2023
The California Legislature passed multiple new laws that impact employers. Following is a brief summary. Unless otherwise noted, these laws take effect January 1, 2023.
- Minimum Wage: The minimum wage is increasing to $15.50 for all California employers, regardless of size. With that change, the minimum salary for exempt employees under the executive, administrative, and professional exemptions goes up to $64,480 per year. Some cities have ordinances requiring an even higher minimum wage.
- Cannabis Protection (AB 2188): Effective January 1, 2024, private employers with five or more employees and public entities are prohibited from discriminating against a job applicant or employee based on (1) use of cannabis off the job and away from the workplace; or (2) an employer required drug screening test finding an individual to have nonpsychoactive cannabis metabolites (metabolized version of THC) in hair, blood, urine, or other bodily fluids. Employers can discipline/terminate employees for being impaired by or possessing or using cannabis on the job. This law does not pre-empt state or federal laws that require certain testing for controlled substances.
- Reproductive Health Decision-Making (SB 523): The Fair Employment and Housing Act (FEHA) adds “reproductive health decision-making” (the decision to use or access a particular drug, device, product, or medical service for reproductive health) to the list of categories protected from discrimination and harassment. Furthermore, an employer cannot require the disclosure of information relating to an applicant’s or employee’s reproductive health decision-making.
- Pay Transparency (SB 1162): Employers with 15 or more employees must include the pay scale for a position (salary or hourly wage range that the employer “reasonably expects to pay for the position”) in any job posting. If a third party is used for job postings, the third party must include the pay scale in the posting. Additionally, if an existing employee asks for the pay scale for his/her currently held position, the employer must provide it. The law also has record-keeping requirements.
All private employers with 100 or more employees must submit an annual pay report to the Civil Rights Department by the second Wednesday of May each year. If the employer hired 100 or more employees through labor contractors, it must submit a separate report for those. For information on reporting go to https://calcivilrights.ca.gov/paydatareporting/.
- Leave to Care for Designated Members (AB 1041): Under the California Family Rights Act, employees may take leave to care for a “designated member” (an individual related by blood or whose association is the equivalent of a family relationship). Under the California paid sick leave law, employees may take sick leave to care for a “designated member” (a person identified by the employee). Employers may limit employees to one designated person per 12-month period.
- Bereavement Leave (AB 1949): Employers with five or more employees must allow up to five days of unpaid bereavement leave upon the death of a family member. To be eligible, an employee must have been employed for at least 30 days prior to the commencement of the leave.
- Unsafe Workplace (SB 1044): In the event of an emergency condition like an earthquake, wildfire, shooting, an employer cannot take or threaten adverse action against an employee for refusing to report to or for leaving a workplace due to a reasonable belief that the workplace is unsafe. This law does not apply to certain positions such as first responders. This law also makes it unlawful for an employer to prevent employees from using their mobile device to seek emergency assistance, assess the safety of a situation, or communicate with a person to verify their safety in an emergency condition.
- COVID-19: The requirement that employers provide COVID-19 supplemental paid sick leave to employees who test positive ends December 31, 2022. But other requirements have been extended to January 1, 2024. Employers must continue to post, in a conspicuous location at the place of employment, a notice of prohibition to perform an operation or enter a place of employment due to the risk of a COVID-19 infection. If an employer receives notice of potential exposure to COVID-19, within one business day of the notice of exposure, it must provide individual written notices to employees at the worksite who may have been exposed, or it can instead display a notice in all places where notices to employees about workplace rules are customarily posted.
- California Consumer Privacy Act: This law applies to for profit businesses doing business in California that have a gross annual revenue of more than $25 million, or buy, sell, and/or share personal information for 100,000 or more California residents or households, or derive 50% or more of annual revenue from selling or sharing consumers’ personal information, and any entity that controls or is controlled by a business subject to the California Consumer Privacy Act, also referred to as the California Privacy Rights Act, shares common branding with the business, and with whom the business shares consumers’ personal information. Under this law, employers must inform employees/applicants, through website and other notices, of personal information to be collected from them, categories of sensitive personal information collected the purposes for which they are used, the length of time the information will be retained, whether the personal information is sold or shared, and with whom. Enforcement of the law begins July 1, 2023. Employers should educate themselves in their various obligations now and make necessary changes to their website and forms.
- Cal Savers: Employers who do not sponsor a retirement plan and have five or more California employees must join CalSavers. The registration date has passed for most employers. Employers who have not registered should register to avoid penalties. Go to https://www.calsavers.com.
This article is intended to address topics of general interest and should not be construed as legal advice.
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