A Rundown Of New Employment Laws In California

By Swerdlow Florence Sanchez Swerdlow & Wimmer

October 5, 2022

California Governor Gavin Newsom signed several employment-related bills into law prior to the end of California legislative session on September 30, 2022.  Below is a rundown of some of the key laws that will impact California employers both large and small.  

Bereavement Leave

As of January 1, 2023, employers with five or more employees are required to provide up to five days of unpaid leave to eligible employees for the death of a family member.  Eligible employees include those employees, full-time or part-time, who have worked for the employer for at least 30 days.  Family member is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law.  Notably, the five days of leave do not need to be taken consecutively, but must be completed within three months of the date of death.  In lieu of taking unpaid leave, employees are entitled to use their accrued vacation, available sick leave and/or other available paid time off.  

Employers are permitted to request documentation to confirm the need for bereavement leave, within 30 days of the first day of leave, including, but not limited to a death certificate, obituary, or written verification of death, burial or memorial services.  Employers may not retaliate or discriminate against employees who exercise their right to take bereavement leave.  Employees are permitted to file claims against employers who prevent employees from taking available bereavement leave or who take adverse action against an employee who takes bereavement leave.

Family Leave for “Designated Persons”

Under current California law, employees are permitted to take sick leave and up to 12-weeks of unpaid leave under the California Family Rights Act (“CFRA”) to care for family members.  Beginning January 1, 2023, the individuals for whom California employees can take leave to provide care will expand to include a “designated person.”  A designated person is defined as any individual related by blood or whose association with the employee is the equivalent of a family relationship.  An employee can identify a designated person at the time of the leave request.  Employers can limit an employee to one designated person per 12-month period.

Pay Transparency

Employers with 15 or more employees

Beginning January 1, 2023, employers with 15 or more employees will be required to disclose a pay scale in job postings.  A pay scale is the “salary or hourly wage range that the employer reasonably expects to pay for the position.”  Employers must also provide the pay scale to current employees upon request.

In addition, employers also must maintain records, which are open to inspection by the California Labor Commissioner, of the job title and wage-rate history for each employee for the duration of that employee’s employment plus three years thereafter.  Failure to maintain these records will create a rebuttable presumption in favor of an aggrieved employee’s claim for violation of this law.

If an employer does not follow these requirements, an aggrieved employee or applicant may file a written complaint with the DLSE or a civil action for injunctive relief or any other appropriate relief.  The DLSE may order civil penalties for non-compliance ranging between $100-$10,000 per violation.  

Employers with 100 or more employees

Employers with 100 or more employees, must comply with additional disclosure requirements.  In 2020, California began requiring large employers to provide pay data to the Department of Fair Employment and Housing (now known as the California Civil Rights Department) about employees by race, ethnicity, and sex for 10 job categories.  Beginning May 2023, this report must also include the median and mean hourly pay rates within each job category broken down by the race/ethnicity and sex of the employees in each job category.  

Off-Duty Marijuana Use

Beginning January 1, 2024, employers will be prohibited from discriminating against an employee or applicant based on “the person’s use of cannabis off the job and away from the workplace.”  In addition, this new law makes it an unlawful employment practice to discriminate against individuals based on an employment drug screening test that detects the presence of “nonpsychoactive cannabis metabolites in their hair, blood, urine or other bodily fluids.”

Employers will still be permitted to maintain a drug and alcohol free workplace.  Employers can continue to prohibit employees from possessing, being impaired by, or using cannabis on the job.  Furthermore, employers may continue to refuse to hire an individual based on a pre-employment drug screening that does not test for nonpsychoactive cannabis metabolites.  

Paid Family Leave (Baby Bonding and Care for Family Members)

California offers paid family leave for up to eight weeks to employees to care for a seriously ill child, spouse, parent, grandparent, grandchild, sibling, or domestic partner, or to bond with a minor child within one year of birth or placement of the child via foster care or adoption.  Paid family leave is paid by the state via EDD and SDI contributions.  Currently, the program’s wage replacement rates are 70% for low-income workers and 60% for everyone else.  Beginning January 1, 2025, the amount employees will receive through the program will increase to 90% for workers earning less than $57,000 per year and 70% for all other workers, up to a cap set by the State.  Therefore, with this increase in benefits provided by the state, employers should expect an increase in employee use of paid family leave starting in 2025.

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The implementation of these new laws may impact some of your company’s policies.  For example, employers will need to revise their sick leave and CFRA policies to include “designated persons” and will need to adopt or update their bereavement-leave policy.  Contact your Swerdlow Florence Sanchez Swerdlow & Wimmer attorney if you have any questions regarding these new laws and to update your Handbook for the 2023 year.

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