New California Labor and Employment Laws for 2022

The California Legislature has enacted several new laws that will impact the workplace in 2022. This Holland & Knight alert provides a brief summary of select employment laws that went into effect on Jan. 1, 2022, unless stated otherwise.

• AB 1033 (CFRA Leave Expanded to Employee's Care for Parent-In-Law): This bill expands the definition of "parent" under the California Family Rights Act (CFRA) to now include "parent-in-law." The bill also establishes a pilot mediation program for small employers between five and 19 employees, which makes mediation a requirement before filing a civil Fair Employment and Housing Act (FEHA) lawsuit if mediation is requested by the employer or employee.
• SB 331 (New Restrictions on Employee Nondisclosure/Nondisparagement Clauses): California law previously prohibited covered employee settlement agreements from preventing the disclosure of factual information regarding various sexual harassment claims and allegations. This bill expands this prohibition to extend to all discrimination and harassment (not just sexual harassment). Further, for covered severance, separation and nondisparagement agreements that restrict an employee's ability to disclose information related to workplace conditions, the bill now requires the agreement to state, in substantial form, 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." In addition, employees regardless of age must be given not less than five business days to consider signing an agreement, but may sign the agreement in less time provided it is knowing and voluntary and not induced by fraud, misrepresentation or coercion.
• SB 606 (Increased Cal-OSHA Enforcement Authority): For purposes of California Occupational Safety and Health Act (Cal-OSHA) penalties and citations, this bill creates a rebuttable presumption that a violation committed by an employer that has multiple worksites is enterprise-wide if 1) the employer has a written policy or procedure that violates these provisions, except as specified, or 2) Cal-OSHA has evidence of a pattern or practice of the same violation committed by that employer involving more than one of the employer's worksites. The bill authorizes Cal-OSHA to issue an enterprise-wide citation requiring enterprise-wide abatement if the employer fails to rebut such a presumption. The bill also imposes specified requirements for a stay of abatement pending appeal of an enterprise-wide citation. The bill subjects an enterprise-wide violation to the same penalty provision as willful or repeated violations. This bill requires Cal-OSHA to issue a citation for an egregious violation, as defined, for each willful and egregious violation determined by the division, as provided. The bill, except as specified, would require each instance of an employee exposed to that violation to be considered a separate violation for purposes of the issuance of fines and penalties. The bill also increases Cal-OSHA's subpoena authority in investigations.
• SB 657 (Employers Can Email Required Employee Postings): This bill provides that, in any instance in which an employer is required to physically post information, an employer may also distribute that information to employees by email with the document or documents attached. The bill specifies that this does not alter the employer's obligation to physically display the required posting.
• SB 807 (Tolling of Statute of Limitations for FEHA Claims): This bill tolls the deadline for the California Department of Fair Employment and Housing (DFEH) to file a civil action pursuant to the FEHA while a mandatory or voluntary dispute resolution is pending. Further, when a complaint is filed with DFEH for an alleged violation of certain laws, the time for complainants to file their own civil actions under those provisions would be tolled until either the DFEH files a civil action or one year after the DFEH issues written notice to the complainant that it has closed its investigation and elected not to file a civil action. Employers must maintain records for four years from the date of creation, though the four year period "restarts" from the date of termination or "non-hire" of an applicant.
• AB 1003 (Intentional Wage Theft Punishable as Grand Theft): This bill makes the intentional theft of wages, including gratuities, in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two or more employees, by an employer in any consecutive 12-month period punishable as grand theft.
• SB 762 (New Invoicing Requirements for Employment Arbitration Providers): Under the previous California law, for employers with mandatory arbitration agreements, if an employer does not timely pay arbitration fees within 30 days of the due date, the employer waives the right to stay in arbitration, and the employee can proceed in court. This bill will now require the arbitration provider to invoice fees/costs to all parties, and to make the invoice due upon receipt unless the arbitration agreement provides otherwise.
• Minimum Wage Increases: As of Jan. 1, 2022, for employers of 26 or more employees, the California state minimum wage is $15 per hour; for employers of 25 or fewer employees, minimum wage is $14 per hour. This means that as of Jan. 1, 2022, exempt employees in California must be paid a minimum of $62,400 annually for employers of 26 or more employees; and $58,240 annually for employers of 25 or fewer employees.

"Living wage ordinances" in various locales within the state have been enacted, so local standards should be confirmed to ensure compliance with all governing wage requirements.

Additionally, "Learners" – those working in occupations in which they have no previous similar or related experience – may be paid at 85 percent of minimum wage during the first 160 hours of employment. Employers will have the burden to establish the "Learner" status of the employee.

Covered exempt computer professional employees must be paid a minimum of $50 per hour, or $104,149.81 in annual salary.

• COVID 19 Requirements: The obligations imposed on employers related to COVID-19 and safe workplaces are continually being updated by the federal government, including the Centers for Disease Control and Prevention (CDC) and Occupational Safety and Health Administration (OSHA), as well as state, cities and other public entities. These should be consulted on a regular basis for the most current requirements. Here are some recent Holland & Knight alerts on this issue:
  • "Supreme Court to Take Shot at Healthcare and OSHA Vaccine Mandates," Dec. 23, 2021
  • "A Dizzying Map of Federal Vaccination Mandates, Injunctions and Stays," Dec. 23, 2021
  • "OSHA's Emergency Temporary Standard on COVID-19 Vaccination or Testing Is Back On (for Now)," Dec. 20, 2021
  • "Federal Court Grants Nationwide Injunction Against Government Contractor Vaccine Mandate," Dec. 8, 2021

For more information or questions on the new California labor and employment laws and their potential impact on employers and employees, contact the authors.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.