Labor and Employment Law Updates for 2024

by Betsy Martyn on January 21, 2024

Effective January 1, 2024 (unless otherwise noted)

Senate Bill 616: Sick Leave

SB 616 adds a variety of provisions to the Labor Code starting with Section 245.5. Its provisions apply to both public and private employees and generally apply to employees covered by a collective bargaining unit as to the number of sick days provided. However, the legislation does supersede MOU’s or other local policies as set out below.

The Amendment

increases the minimum number of paid six days per year from 3 to 5 day
increases the cap on paid sick days from 6 to 10 per year and from 48 to 80 hours
increases the minimum number of sick days which may be carried over to the next year from 3 to 5
requires that whatever the method of sick leave accrual, and employee must accrue no fewer than 40 hours of sick leave by the 200^th calendar day of employment or calendar year or 12-month period. The amendment includes protections against discrimination and retaliation related to the use of paid six leave regardless of an MOU.
continues provisions for non-discrimination and retaliation.

More importantly, the amendment supersedes an existing MOU or local rules for non-exempt or exempt employees. These changes may require a review of the existing sick leave provisions as to reinstatement of sick leave upon rehire:

lending paid sick leave to another employee
notice of the amount of sick leave available
calculation of paid sick time
timing of the employee’s notice of the need to use paid sick time
payment for sick leave must be in the next regular payroll

Senate Bill 848: Leave for Reproductive Loss

SB 848 adds Govt. Code Section 12945.6 to make it an unlawful employment practice to refuse to grant an employee’s request for leave following a “reproductive loss event” which is defined as “the day or, for a multiple-day event, the final day of a failed adoption, failed surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction.” The bill therefore requires that the employee provide otherwise confidential information about the loss event.

An employee is entitled to take up to five days of reproductive loss leave, which need not be consecutive. If an employee experiences more than one reproductive loss event within a 12-month period, the employer may cap leave time at 20 days within a 12-month period.

Public Agency Liability for Wages of Private Employees – Contract Amendments Needed

AB 520 adds Labor Code Section 238.5 to make a public agency jointly liable (along with the private contractor) for unpaid wages of contractors who provide janitorial, security guard, landscaping or gardening services. The liability arises in industries when the public entity has been provided notice by the Labor Commissioner of a judgment for such liability.

The new law also requires that any contract for such services provides that the private employer must provide disclosure and notice to the governmental entity of such non-payment and include a text of this section. Therefore, you will need to amend such contracts as soon as possible to meet these requirements.

Protected Employee Retaliation Claims

SB 497 rebuttable presumption in favor of an employee’s retaliation claim if an employer engages in any disciplinary behavior within 90 days of an employee engaging in protected activity. There may be civil penalties of up to $10,000/employee.

SB 497 increases the protections against employer retaliation in three ways (under three Labor Code sections): First, if any employee exercises rights under the Labor Code, the employer is prohibited from retaliation. This includes an employee who reports unequal payments based upon gender. If an employer engages in any action toward such employees within 90 days of the protected activity, there is a rebuttable presumption that the employer has retaliated against the employee. Second, SB 497 broadens the available civil penalties for whistleblowers to up to $10,000 per violation for all employers, including public employers, based upon the nature and seriousness of the violation and the economic or mental harm suffered.

Workplace Violence Prevention Plan – Plan Development Needed

SB 553 adds Labor Code section 6401.9 which require all employers (including public employers) must develop a workplace violence prevention plan by July 1, 2024.

“Workplace violence” is broadly defined to include the threat or use of physical force against an employee that results in, or has a high likelihood of resulting in, injury or psychological trauma or stress, regardless of whether the employee actually sustains an injury.

As used in the new law, “employee” includes a Council member or Board member as well as a volunteer or independent contractor performing services on the employer’s property.

Prevention plans must be in writing and “available and easily accessible to employees … at all times.” They must be “effective” and tailored to the specific hazards of the particular workplace.

Plans must include a variety of items, such as instructions on how employees can report a violent incident or a threat of violence, procedures for employers to receive and respond to reports of workplace violence, information on how to respond to workplace violence emergencies, and investigatory procedures. Employers must maintain a log of violent incidents that contains specified information.

Employers also are required to provide “effective” training when the plan is first implemented and then annually thereafter. Additional training is required when a new or previously unrecognized hazard is identified or when the plan is changed. The provisions of the new law will be enforced by CalOSHA which may assess civil penalties and will develop regulations by the end of 2025.

The bill also provides that starting in 2025, the union may seek a TRO on behalf of an employee.

Cannabis Use

As of January 1, 2024, it is unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person because of the employee’s use of cannabis off the job and away from the workplace, except as otherwise provided.

SB 700 amends Govt. Code Section 12954 to provide that it is unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis, except when part of the person’s criminal history. However, the bill also addresses overall cannabis use in the workplace in a helpful way. It also provides that

it does not apply to the building and construction trades
it does not supersede with requirements for a drug free workplace as required by state of federal law
it does not preempt state or federal laws requiring drug test or the requirements for federal funding or federal employment

Temporary Public Employees

AB 1484 requires that, upon the request of the employee organization, temporary employees hired directly by a public agency (and not provided by an outside service) automatically are included in the same bargaining unit as permanent employees upon request of the employee organization.

Alternative Enforcement of the Labor Code

AB 594 permits a variety of “public prosecutors” to enforce certain provisions of the Labor Code. Specifically, the bill permits the California Attorney General, a district attorney, a city attorney, a county counsel, and “any other city or county prosecutor” to prosecute a civil or criminal action for violations of the wage and hour provisions of the Labor Code. Currently, enforcement of these provisions is relegated to the Division of Labor Standards Enforcement (DLSE). Any monies recovered in such an action go first to the affected employees, and civil penalties recovered go to the state’s General Fund. In addition, a court may award a prevailing plaintiff reasonable attorney’s fees and costs, including expert witness fees and costs, to the extent the Labor Commissioner would be entitled to such fees in an action under Labor Code section 98.3.

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