January 2022 Employment Law Update

by Sonya Goodwin

Happy New Year! With the start of 2022 comes new and revised employment laws affecting California employers. Below is a summary of just a few of the highlights. As this is a non-exhaustive list, please reach out if you have any questions about how these new laws might affect your business.

Cal-OSHA’s Emergency Temporary Standards Revised.

The California Occupational Safety and Health Standards’ (Cal-OSHA) Emergency Temporary Standards (ETS) revised its COVID-19 rules, effective January 14, 2022 through April 14, 2022. Some of the revisions include:

  • Both vaccinated and unvaccinated employees must stay home from work for 14 days if they come in “close contact” with someone who is infected with COVID-19, even if they test negative. However, if the California Department of Public Health provides for shorter quarantine or isolation rules, then employers can follow those shorter periods according to the revised ETS. 
  • Employers must provide COVID-19 tests (at no cost to the employee) to all employees, regardless of vaccination status, if they are identified as having close contact with a COVID-19 case at the workplace.  
  • Cloth face coverings must now pass a “light test,” which means that light cannot pass through the covering when held up to a light. 

Certain jurisdictions may have stricter requirements that should be followed. Check with your employment attorney to determine the correct COVID-19 protocols for your worksites.

Clarification to Notification, Benefits, and Disinfecting Requirements after COVID-19 Exposure (AB 654).

AB 654 provides clarification as to whom notification, benefits, and disinfecting information are to be given. The new law cleaned up the previous inconsistencies, and now states that notice regarding exposure, benefits, and disinfecting and safety must be given to all employees who were “on the premises at the same worksite as the qualifying individual within the infectious period.” The “infectious period” is determined by the California Department of Public Health.  

Expansion of the California Family Rights Act (AB 1033).

Last year, the California Family Rights Act (CFRA) was expanded to apply to all employers with 5 or more employees. This year, CFRA has expanded yet again, to include parent-in-law (including parent of a domestic partner) to the definition of family members for whom an employee can take CFRA leave. 

Additionally, CFRA’s pilot mediation program for employees of small employers (1-19 employees) was modified and streamlined under AB 1033. If an employee files a charge with the Department of Fair Employment and Housing (DFEH) for a violation of CFRA and requests an immediate right-to-sue letter, the DFEH must notify all parties of the requirement to mediate prior to filing a civil action, if a request to mediate is submitted by either party. If an employer does not receive notice of the mediation program as a result of the employee’s failure to contact the DFEH’s alternative dispute resolution division prior to filing a lawsuit, then the employer may request a stay of the court action or arbitration proceeding until mediation has occurred.  

Expansion to Prohibition of NDAs in Certain Employment Agreements (SB 331).

In 2019, California law prohibited provisions in settlement agreements and non-disclosure agreements (NDAs) that prevent the disclosure of factual information relating to civil or administrative complaints of sexual harassment, sexual assault, harassment or discrimination based on sex, and any retaliation related to such claims. SB 331 expands the prohibition to apply to any claims of workplace harassment or discrimination for any protected class (i.e. race, religion, national origin, disability, etc.). However, settlement agreements may still include a confidentiality clause as to the amount paid in a settlement.

Additionally, SB 331 requires that employees include in any agreements that could otherwise preclude employees from disclosing information about unlawful acts in the workplace (including non-disparagement agreements, separation agreements not involving resolution of civil actions or administrative charges, NDAs, or other agreements required in exchange for a bonus, raise, employment, or continued employment) a disclaimer that enables employees to disclose such information. Such agreements must specifically 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.”

Additionally, in such an agreement that is a separation agreement (and not made to resolve filed civil actions or administrative charges), the agreement must now include a notice about employee’s rights to consult an attorney regarding the agreement and provide reasonable time (at least 5 business days) for an employee to consult with an attorney.  

Electronic Delivery Option of State-Required Posters (SB 657).

SB 657 adds Labor Code section 1207, which states that in any instance in which an employer must physically post information, the employer “may also distribute that information to employees by email with the document or documents attached.” This is in addition to and does not alter, the employer’s obligation to physically post the required posting. This was intended to relieve some of the technical issues of employees working remotely in the post-pandemic world.

Extended Time for Record Keeping Requirements (SB 807).

SB 807 extends the amount of time employers need to retain personnel records from 2 years to 4 years. If litigation has been filed, employers must retain the records until the applicable statute of limitations has run, or until the litigation has concluded, whichever is later. SB 807 also makes revisions to and creates tolling of statutes of limitations for certain claims under the Fair Employment and Housing Act.  

Reminder: Minimum Wage Increase!

Effective January 1, 2022, employers with 25 or fewer employees must increase the minimum hourly wage to $14.00 (increased from $13.00 per hour), while employers with 26 or more employees must pay a minimum wage of $15.00 per hour (increased from $14.00 per hour). This also means an increase to meet the requirements of the salary basis test for exempt employees – employers with 1-25 employees must pay $58,240 per year and employers with 26 or more employees must pay $62,400 per year.

Local jurisdictions may have higher minimum wage requirements.  

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