August 31, 2022 marked the deadline for the state Legislature to pass any new bills for this legislature year. There are many employment-related bills that are now awaiting the Governor’s approval, and he has until September 30 to approve or veto the bills. This Friday’s Five highlights five key bills that California employers need to monitor:
1. AB 257 – Fast Recovery Act fast food council
AB 257, termed the Fast Food Accountability and Standards Recovery Act or FAST Recovery Act, proposes to establish a Fast Food Sector Council to regulate California’s fast food restaurants. The council would be composed of 10 members who are not elected, but are appointed by the Governor, Speaker of the Assembly, and the State Rules Committee. The council would have the power to set standards for minimum wages, working hours, “and other working conditions related to the health, safety, and welfare of” fast food establishments. Our prior analysis of the Fast Recovery Act is here.
2. AB 152 – Supplemental paid sick leave extended until December 31, 2022
AB 152 proposes to amend Labor Code section 248.6 to extend the requirement for employers to provide supplemental paid sick leave until December 31, 2022. Currently, California’s supplemental paid sick leave is set to expire on September 30, 2022, as we explained here.
If passed, AB 152 would extend the supplemental paid sick leave requirement until the end of 2022. It would not change the existing reasons for paid leave, and it does not give employees who have already used supplemental paid sick leave additional time off. The bill does provide that employers may require employees to submit to a second test within 24 hours after a positive test and provide documentation of the results.
3. AB 2188 – Prohibition on California employers to discriminate against employees for off-duty use of cannabis
AB 2188 proposes to amend Government Code section 12945 to make it illegal for employers to discriminate against employees who use cannabis off the job and away from the workplace. The bill states that it does not create the right for the employee to be impaired while at work, does not apply to the building and construction trades, and does not preempt state or federal laws requiring employees to be tested. If passed, this would change the status of California law, and would become effective on January 1, 2024.
In 2016, California passed Proposition 64 legalizing marijuana. Proposition 64 expressly provides that employers may prohibit marijuana in the workplace, and will not be required to accommodate an employee’s use of marijuana. This is also consistent with the California Supreme Court’s holding in Ross v. Ragingwire Telecommunications, Inc. In that case the court examined the conflict between California’s Compassionate Use Act, (which gives a person who uses marijuana for medical purposes on a physician’s recommendation a defense to certain state criminal charges and permission to possess the drug) and Federal law (which prohibits the drug’s possession, even by medical users). The court held that the Compassionate Use Act did not intend to address the rights and obligation of employers and employees, and further noted that the possession and use of marijuana could not be a protected activity because it is still illegal under federal law.
4. SB 1162 – Pay data reporting and disclosures
SB 1162 would require additional information be reported to the state of California on the employer’s pay data report. For example, the bill would require employers to report the median and mean hourly rates for employees. It would also require employers who hire an employee through labor contractors to submit a separate report for those employees.
The bill would also require employers to provide a pay scale to any current employee for their position currently working upon request. Existing law requires employers to provide a pay scale to an applicant upon request. In addition, the bill would require employers with 15 or more employees to include the pay scale for a position in any job posting.
5. AB 1949 – Bereavement leave
AB 1949 would grant employees up to five days of bereavement leave under the California Family Rights Act (CFRA). The bill would permit employees to take the leave if they have been employed for at least 30 days prior to the leave, and the leave is for the death of a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law. The leave is unpaid, but the employee must be permitted to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available. Employers may request documentation from the employee within 30 days which could consist of a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.
We will continue to closely monitor these and other employment-related bills, make sure to subscribe to the blog for updates going into 2023.