California’s New Employment Laws

October 4, 2022by Cheryl Gernand

As the California legislative session ended, several employment-related bills were sent to Governor Gavin Newsom for a signature by September 30.

As of September 27, 2022, three—including a measure that would prohibit employers from discriminating against a person based on their use of cannabis off the job, another that established a Fast Food Council to create a bill of rights for fast-food workers, and a third that expands reporting related to pay data—have already been signed into law.

  • Protection for cannabis use: Pursuant to Assembly Bill 2188, signed by Gov. Newsom on September 18, employers are now prohibited from discriminating against a person in hiring, termination or any term or condition of employment based on a person’s use of cannabis off the job and away from the workplace—with an exception for preemployment drug testing—or an employer-required drug screening that found the individual to have nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids. Employers may still decline to hire an applicant based on a positive preemployment drug test, as long as the screening is scientifically valid and conducted through methods that do not screen for nonpsychoactive cannabis metabolites. Further, the new law does not provide employees with permission to possess, use or be impaired by cannabis on the job, and employers may still operate a drug- and alcohol-free workplace. AB 2188 does not preempt state or federal laws that require applicants or employees to undergo testing for controlled substances as a condition of employment, receiving federal funding or related benefits or entering a federal contract, and exempts certain applicants and employees (such as workers in the building and construction trades or positions that require a federal background investigation or clearance). The new law takes effect on January 1, 2024.
  • Fast-food worker protections: The Fast Food Accountability and Standards Recovery Act (FAST Recovery Act) will take effect on January 1, 2023. The new law creates a ten-person Fast Food Sector Council (Council) within the Department of Industrial Relations, tasked with creating a bill of rights for fast-food workers. Members of the Council will include fast-food workers; their advocates, franchisees and franchisors; and representatives from the Governor’s Office of Business and Economic Development as well as the Department of Industrial Relations, each serving four-year terms. The Council may not promulgate regulations requiring predictable scheduling, amend current statutes or create new paid time off benefits, and is restricted on the amount it may establish for minimum wage. In addition, the new law includes antiretaliation measures prohibiting fast-food restaurant operators from discharging or discriminating or retaliating against employees who make complaints or disclose information regarding employee or public health or safety; refuse to perform work because they had reasonable cause to believe that the practices or premises of the restaurant would violate worker or public health and safety laws; or institute, testify or participate in proceedings related to public health or safety, including any Council proceedings or meetings.
  • Pay data reporting: In 2020, California enacted a reporting obligation for private employers with 100 or more employees that file the federal annual Employer Information Report (EEO-1) to include employee pay data information in a report to the Department of Fair Employment and Housing (DFEH). The initial iteration of the law required employers to share the number of employees by race, ethnicity and sex, categorized by position: officials and managers, professionals, technicians, sales workers, administrative support workers, craft workers, operatives, laborers and helpers, and service workers. Now Senate Bill 1162 expands the existing requirements. Within each job category, employers would need to share the median and mean hourly rate by each combination of race, ethnicity and sex. Employers with more than 15 employees would need to include a pay scale in all job postings, and all employers—regardless of the number of employees—would be required to provide a pay scale for a current employee’s position upon request. The deadline to submit the data would move to the second Wednesday of May each year.

Other measures that were passed by the state legislature remain pending, sitting on Gov. Newsom’s desk.

  • Expansion of bereavement leave: A potential amendment to the California Family Rights Act, AB 1949, would prohibit employers from denying a request from an employee with at least 30 days of active service to take up to five days of bereavement leave upon the death of a family member (defined to include a spouse, child, parent, sibling, grandparent, grandchild, domestic partner or parent-in-law). The days of bereavement leave would not need to be taken consecutively but must be completed within three months of the date of death of the family member. If an employer does not have a paid bereavement policy, the leave may be unpaid except that an employee must be allowed to use compensatory time off that is otherwise available, such as vacation, personal leave, or accrued and available sick leave. Employers would be permitted to require documentation of the family member’s death in the form of a death certificate, a published obituary, or a written verification of death, burial or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution or governmental agency. The bill would prohibit discrimination, interference or retaliation relating to an employee’s exercise of bereavement leave.
  • Tweak for background checks. Earlier this year, a California appellate panel ruled in All of Us or None of Us v. Hamrick that an individual’s date of birth and driver’s license number could not be used as identifiers of a criminal defendant in public records, creating challenges in conducting background checks for employment purposes when courts began removing the two identifiers from public records. SB 1262 would return public court record access to the status quo by requiring publicly accessible electronic indexes of defendants in criminal cases to permit searches and filtering of results based on date of birth, driver’s license number or both.

To read AB 2188, click here.

To read AB 257, click here.

To read SB 1162, click here.

To read AB 1949, click here.

To read SB 1262, click here.

Why it matters: Employers face new legal requirements with the addition of AB 2188 and AB 257, creating legal protections for employees who use cannabis off the job and imposing additional pay data reporting requirements. Other new measures may also be on the horizon, depending on Gov. Newsom’s signature.

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