New Employment Laws Your Organization Should Know for 2022…Be Prepared!
On top of the challenges in light of year two of the COVID pandemic, organizations will be faced with additional employment challenges in the coming year. This year Governor Newsom added and clarified existing employment laws that are either in effect now or will take effect on January 1, 2022. This article focuses on five new laws that may directly impact our clients. Therefore, it is important to familiarize yourself with these new laws to protect your organization.
1) AB 1033 CRFA expansion of job protected leave to care for parent in-laws and mandatory mediation for CFRA violations for Employers with 5-19 employees: In 2021, Governor Newsom expanded the California Family Rights Act (“CFRA”) to provide job protected leave to all employers with 5 or more employees. In addition to expanding those who qualify for CFRA, Governor Newsom expanded the scope of the leave. As a reminder, CRFA is job protected leave for an employee to care for the employees (1) own or a covered family’s serious health condition, (2) baby bonding/adoption; and (3) qualifying military exigency of employee’s spouse, domestic partner, or child. Starting in 2022, Governor Newsom enacted AB 1033 which clarifies the definition of a covered family to include parent-in-laws.
Moreover, AB 1033 revises procedural portions of the Department of Fair Employment and Housing (“DFEH”) pilot program for mediating family leave disputes for employers with 5-19 employees. Currently, the employer or employee may request to attend mediation after the department issues the right to sue. The employee is prohibited from proceeding with a civil action until the mediation is complete and tolls the statute of limitation for the employee.
The new law imposes new requirements on the employee who alleges CFRA violations namely that:
1) After the employee files a right to sue, DFEH must notify the employee in writing of the mediation requirement prior to filing a civil action, if mediation is requested by the employee or employer.
2) Prior to pursuing legal action in Court (aka filing the lawsuit), the employee must contact the DFEH to indicate whether they are requesting mediation.
3) The DFEH must notify the employer and all other named individuals of the alleged violation and mediation requirement. Within 30 days, either the employer or the employee may notify the DFEH of their request for mediation.
4) If the employer or employee request mediation in writing, the DFEH must initiate mediation within 60 days and the employee is prohibited from pursuing a civil action until mediation is complete or deemed unsuccessful. If neither the employee nor employer request mediation within 30 days, the DFEH will not enforce mediation and terminate its activity on the claim.
5) An employer who failed to receive the required notification because of the employee’s failure to contact the Department’s alternative dispute resolution prior to filing a civil action and the employer had 5 to 19 employees at the time the alleged violation occurred, is entitled to stay any pending civil action or arbitration until the mediation is complete or deemed unsuccessful.
2) SB 807 Retention of Records from 2 to 4 years: Personnel records and applications must be retained for 4 years from the date it was created or the employment action took place.
3) AB 1003 Grand Theft Charges for Intentional Wage Theft: The California Penal Code adds further language to grand theft to include intentional theft of wages, including gratuities, more than $950 from any one employee, or $2,350 from a group of employees.
4) SB 331 Severance Agreements Requirements and Limits: Employers may not require employees, in exchange for a raise, bonus, condition of employment, or continued employment, to sign a release claim of right or require the employee to sign a non-disparagement agreement or other document that has the purpose or effect of denying the employee from disclosing information about unlawful acts in the workplace. Employers who have a non-disparagement or other contractual provision restricting an employee’s right to disclose information related to workplace conditions, must notify the employee that they have the right to consult with an attorney. Furthermore, the employer must provide the employee with at least five business days for consultation. The employee may still sign before that time frame so long as the employee’s decision is “knowing and voluntary” and not induced by the employer through fraud, misrepresentation, or a threat to alter/ withdraw the offer before expiration.
Severance agreements may not include any provision that prohibits the disclosure of information about unlawful acts in the workplace. A non-disparagement or contractual provision that prohibits the employee’s ability to disclose information related to the workplace conditions must substantially include the following language, ““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.”
5) AB 654 COVID Exposure Notification (in effect now): Employers must notify all employees who were on the premises at the same worksite as the [infected] qualifying individual within the infectious period. This is a departure from the prior rule requiring notification of those who may have been exposed.
Again, it is important that you consult with an employment attorney to ensure your organization follows the new laws.
This article is brought to you by Jessica Lizarraga, Esq., and Rebecca Gomez, J.D.
This article is for information purposes only. It is not intended to be construed as legal or insurance advice.