Employment Law Update: New Laws in 2023

by Sonya Goodwin

As 2022 winds down, every California employer should start preparing for the new and revised employment laws that go into effect on January 1, 2023. Below is a summary of just a few of the highlights. Now is a great time to revise your employee handbooks if you haven’t done so already. Please reach out if you have any questions about how these new laws might affect your business, or if you need to revise your handbook.

Extension of California Family Rights Act

The California Family Rights Act (“CFRA”) has been extended to allow an employee to take CFRA leave for a “designated person,” in addition to the previously enumerated reasons. “Designated person” is defined as “any individual related by blood or whose association with the employee is equivalent of a family relationship” and includes domestic partners. Employers may limit an employee to one designated person per 12-month period. The CFRA applies to employers with five or more employees.

Extension of California Paid Sick Leave

California’s Paid Sick Leave Law (“PSL”) has a similar extension to allow an employee to take paid sick leave for a “designated person.” The definition of “designated person” under the PSL is even broader than under the CFRA, and is defined as “a person identified by the employee at the time the employee requests paid sick days.” Employers can also limit an employee to one designated person per 12-month period under the PSL.  

Bereavement Leave Law

Effective January 1, 2023, employers with five or more employees will be required to provide up to five days of unpaid bereavement leave to employees who have worked for the employer for at least 30 days. Bereavement leave is permitted for the death of a qualifying family member, which includes a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in the CFRA. The five days do not need to be taken consecutively, but must be completed within three months of the family member’s death. Employers may require documentation proving the death of the family member, and must maintain confidentiality related to the bereavement leave.  Employees may use accrued but unused vacation time for any portion of the bereavement leave that is unpaid.  

Extension of the FEHA to Protect Reproductive Health Decision-Making and Cannabis Users

Effective January 1, 2023, the Fair Employment and Housing Act (“FEHA”) will add an employee’s reproductive health decision-making as another protected category under the Act, which means employers cannot discriminate, harass, or retaliate against an employee based on their reproductive health decision-making. Reproductive health decision-making is defined as “a decision to use or access a particular drug, device, product, or medical service for reproductive health.”

Effective January 1, 2024, the FEHA will make it illegal to discriminate against an employee on the basis of their use of cannabis off the job and away from the workplace. This also means that employers cannot take adverse actions against employees for nonpsychoactive cannabis metabolites found in an employee’s body through a drug test. This new law will not prevent an employer from taking adverse action against an employee who is found to be in possession of, using, or impaired by cannabis while working. The law will not apply to employees in the building and construction trades and also does not apply to applicants or employees who are hired for positions requiring federal background investigations.

Pay Data Transparency and Reporting Requirements

Effective January 1, 2023, employers with 15 or more employees will be required to put the pay scale range in all job postings (whether posted by the employer directly or through a recruiter). Additionally, all employers will be required to make pay scale information for an employee’s current position available to employees upon request. 

Additionally, employers with 100 or more employees will be required to provide a detailed pay data report to California’s Civil Rights Department every May. 

Employers who fail to comply with any of these laws will be subject to penalties. 

Protections for Employees During “Emergency Conditions”

Effective January 1, 2023, employees must be permitted to leave work or refuse to go to work during an “emergency condition,” which is defined as a disaster or extreme peril to the safety at the workplace caused by natural forces or a crime, or an evacuation order due to a natural disaster or crime at the workplace, an employee’s home, or their child’s school. The law explicitly excludes health pandemics from the definition of “emergency condition.” However, employees who are required by law to render aid or remain on the premises in the event of an emergency, employees of health care facilities who provide direct patient care, and employees of licensed residential care facilities are excluded from the protections afforded by this new law.

Reminder: Minimum Wage Increase!

Effectively January 1, 2023, the state minimum wage will increase to $15.50 per hour. This also means an increase to meet the salary basis test for exempt employees to $64,480. 

Local jurisdictions may have higher minimum wage requirements. You should always check to make sure you are in compliance with local minimum wage requirements for each jurisdiction in which you conduct business.

If you have any questions about the above laws, or need assistance with employment issues, contact Sonya Goodwin at sgoodwin@swattys.com.

Federal ban on nondisclosures for sex-based claim could be just a first step

by Sonya Goodwin

If victims of sexual assault avert further harm by making their stories public, the same should be true for minorities and the disabled, whose testimony could also stop perpetrators from targeting new victims.

Ever since the “Me Too” movement started, Congress has slowly acted to protect victims of sexual harassment. For example, last year it enacted H.R. 4445 – the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021. The law bans forced arbitration for claims of workplace sexual assault and harassment. Then, on Sept. 29, the Senate approved S.4524 – the Speak Out Act – by voice vote. It was lauded as yet another acknowledgment of the ongoing impact of #MeToo in the workplace.

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Wage statement audits could be well worth the price

by Sonya Goodwin

Wouldn’t it be better if companies could get things right before being sued by their employees? It’s certainly possible. An audit by legal counsel would quickly identify errors and omissions, helping companies correct errors before it’s too late.

When a unanimous California Supreme Court ruled in May (Naranjo v. Spectrum Security Services, (2009) 172 Cal.App.4th 654, 660, that premium wages for rest and meal periods were to be considered “wages” under California law, it took many employers by surprise. But it should have been no surprise to my employer clients. For the past few years, I have counseled them repeatedly that they need to reflect these premiums on their wage statements.

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25 Years And Counting!

by Gerald Sauer

Sauer & Wagner LLP is celebrating its 25th anniversary. This milestone could not have been achieved without the devotion of our clients, colleagues, and friends. We thank each and every one of you for your support over the years!  

The firm was founded on Law Day back on May 1, 1997. Law Day was established under the Eisenhower Administration as a national day to celebrate the role of law in our society. Law Day is a time to reflect on how the legal process protects our liberty and impacts our daily lives. S&W is honored to have played a role in successfully applying the rule of law on behalf of our clients.

S&W remains committed to providing exceptional legal services for our clients. We look forward to many more years of service and success in the future.     

Caregiving Could Be the Next Protected Class: Sonya Goodwin’s article for The Recorder

by Sonya Goodwin

What a difference a pandemic makes. Since March 2020, the federal government, state of California and various local jurisdictions have implemented varying forms of protections for employees who were unable to work because they had to care for a child or family member due to illness or school/child care closures related to the coronavirus. While many of these protections expired in 2021, California reinstated limited protections until Dec. 31.

But long before offices across the state were shuttered and workers learned to telecommute to their jobs, San Francisco expected companies to facilitate alternative work arrangements for employees with family obligations. In 2014, San Francisco showed remarkable foresight when it enacted the Family Friendly Workplace Ordinance. The ordinance called upon employers to address the unique needs of workers with family obligations, providing accommodation to parents juggling childcare duties and workers caring for elderly parents.

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