With the new year having arrived, employers should be aware of the following notable legislation that will go into effect in California in 2024.  Selected bills have been organized under their respective house of origination and listed in numerical order, and summaries are based on information provided on the California Legislative Information website.

Should you have any questions about how this legislation may affect you (whether as an employer or an employee), please feel free to reach out to a member of our team and we will be happy to assist.

Thank you for reading, and happy New Year!

The following Assembly bills will go into effect in 2024:

AB-594

• Until January 1, 2029, authorizes a public prosecutor to bring a civil or criminal case for a violation of certain provisions of the California Labor Code or to enforce those provisions independently.
  • Requires money recovered to be applied first to payments due to affected workers.
  • Requires all civil penalties recovered to be paid to the State’s General Fund (unless otherwise specified).
  • Limits actions to redressing violations within the public prosecutor’s geographic jurisdiction (except as specified).
  • Authorizes a public prosecutor to seek injunctive relief to prevent continued violations, in addition to any other remedies available.
• Provides that any individual worker–employer agreement purporting to limit representative actions or mandate private arbitration shall have no effect on a public prosecutor or Labor Commissioner’s authority to enforce the Labor Code.
  • Any subsequent appeal of a denial of any motion or other court filing to impose such restrictions on a public prosecutor, a division, or the Department of Justice shall not stay the trial court proceedings (notwithstanding specified law).
• Authorizes the Labor Commissioner or a public prosecutor to enforce certain willful misclassification provisions through specified methods (e.g., investigating an alleged violation, ordering temporary relief, issuing a citation, and filing a civil action).
  • Also permits certain employees, the Labor Commissioner, or a public prosecutor to alternatively recover certain penalties as damages payable to the employee.

AB-636

• Requires an employer to include, in the written notice of information provided to an employee at the time of hiring under existing law, information about the existence of any federal or state disaster declaration applicable to the county(ies) where the employee will be employed.
• Establishes certain additional requirements related to the federal H-2A agricultural visa program that take effect as early as March 1, 2024.

AB-933

• Privileges (for purposes of defamation actions) a communication made by an individual, without malice, regarding an incident of sexual assault, harassment, or discrimination.
• Specifies that a prevailing defendant in a defamation action concerning a communication described above would be entitled to:
  • Their reasonable attorney’s fees and costs in defending themselves;
  • Plus treble damages for any harm caused to them by the defamation action;
  • In addition to punitive damages available under Cal. Civ. Code § 3294 or any other relief otherwise permitted by law.

AB-1076

• Codifies existing case law by specifying that the statutory provision voiding noncompete contracts must be broadly construed to void application of any noncompete agreement in an employment context, or any noncompete clause in an employment contract, no matter how narrowly tailored (so long as it does not satisfy any specified exceptions).
• States that this provision is declaratory of existing law.
• Makes these provisions applicable to contracts where the person being restrained is not a party to the contract.
• Makes it unlawful to include a noncompete clause in an employment contract, or to require an employee to enter a noncompete agreement that does not satisfy any specified exceptions.
• By February 14, 2024, requires employers to notify current and former employees whose contracts include a noncompete clause (or who were required to enter a noncompete agreement) in writing that the noncompete clause or agreement is void.
• Makes a violation of these provisions an act of unfair competition pursuant to the Unfair Competition Law.

AB-2188

• Beginning January 1, 2024, makes it unlawful for an employer to discriminate against a person in hiring, firing, or any term or condition of employment (or otherwise penalize that person) based on cannabis use off the job and away from the workplace.
  • BUT: Excepts preemployment drug screening or upon an employer-required drug screening test that has found the person to have non-psychoactive cannabis metabolites in their hair, blood, urine, or other bodily fluids.
• Exempts certain applicants and employees from the bill’s provisions, including employees in the building and construction trades and applicants and employees in positions requiring a federal background check.
• Does not preempt state or federal laws requiring applicants or employees to be tested for controlled substances as a condition of employment, receiving federal funding or federal licensing-related benefits, or entering into a federal contract.

The following Senate bills will go into effect in 2024:

SB-365

• Provides that—notwithstanding the general rule—trial court proceedings shall not be automatically stayed during the pendency of an appeal of an order dismissing or denying a petition to compel arbitration.

SB-428

• Beginning January 1, 2025, authorizes an employer to seek a temporary restraining order (TRO) and injunction on an employee’s (and other employees’) behalf based on clear and convincing evidence that the employee suffered harassment, that the employee would suffer great or irreparable harm, and that the respondent’s conduct served no legitimate purpose.
• Requires the employer to provide the employee the opportunity to not be named in the TRO before filing for it.
• Prohibits a court from issuing such a TRO to the extent the order would prohibit speech or activities protected by the federal National Labor Relations Act or certain provisions of law governing the communications of public employees’ exclusive representatives.
• Incorporates additional changes to Cal. Code Civ. Pro. § 527.8 proposed by SB-553 to be operative only if both bills are enacted and SB-428 is enacted last.

SB-497

• Creates a rebuttable presumption in favor of an employee’s claim if an employer retaliates against the employee for engaging in protected activity within ninety (90) days of the activity occurring.
• Makes an employer who retaliates against a whistleblowing employee(s) liable for a civil penalty of up to ten-thousand dollars ($10,000) per employee, payable to the retaliated-against employee.
  • Requires the Labor Commissioner, in assessing the penalty, to consider the nature and seriousness of the violation based on evidence obtained during investigation.
• Creates a rebuttable presumption in favor of an employee’s claim if an employer retaliates against the employee for invoking certain wage-related rights within ninety (90) days of the activity occurring.

SB-553

• Beginning July 1, 2024:
  • Requires an employer to establish, implement, and maintain—at all times in all work areas—an effective workplace violence prevention plan containing certain information (e.g., identifications; effective procedures; and coordination methods with other employers).
  • Requires the employer to record information on every workplace violence incident in a violent incident log.
  • Requires the employer to provide effective training to employees on the workplace violence prevention plan (among other things) and provide additional training when a new or previously unrecognized workplace violence hazard has been identified and when changes are made to the plan.
  • Requires records of workplace violence hazard identification, evaluation, and correction and training records to be created and maintained, and violent incident logs and workplace incident investigation records to be maintained.
  • Requires certain records to be made available to the Division of Occupational Safety and Health (the “Division”), employees, and employee representatives.
• Beginning January 1, 2025:
  • Authorizes an employee’s collective-bargaining representative to seek a temporary restraining order (TRO) and an order after hearing on behalf of the employee and other employees at the workplace.
  • Requires that an employer or an employee’s collective-bargaining representative, before filing such a petition, provide the employee who has suffered unlawful violence (or a credible threat thereof) the option not to be named in the TRO.
    • Provides that an employee’s request not to be named in the TRO would not prohibit an employer or collective-bargaining representative from seeking the TRO on behalf of other employees at the workplace and, if appropriate, other employees at other workplaces of the employer.
• Requires the Division to enforce the workplace violence prevention plan and related requirements by issuing a citation and notice of civil penalty (which may be appealed).
• Requires the Division to propose no later than December 1, 2025, and the Occupational Safety and Health Standards Board to adopt no later than December 1, 2026, standards regarding the plan required by the bill.
• Requires every employer to include the workplace violence prevention plan as part of its effective injury prevention program (a violation of which is a misdemeanor in certain contexts).
• Incorporates additional changes to Cal. Code Civ. Pro. § 527.8 added by SB-428 to be operative only if both bills are enacted and SB-553 is enacted last.

SB-616

• Excludes railroad carrier employers and their employees from provisions of the Healthy Workplaces, Healthy Families Act of 2014.
• Extends certain procedural requirements on the use of paid sick days to employees covered by a valid collective bargaining agreement.
• Modifies an employer’s alternate sick leave accrual method to additionally require that an employee have no less than forty (40) hours of accrued sick leave or paid time off (PTO) by the two-hundredth (200th) calendar day of employment or each calendar year, or in each 12-month period.
  • Modifies that satisfaction provision to authorize an employer to satisfy accrual requirements by providing, in addition to the existing criteria for satisfaction above, not less than forty (40) hours or five (5) days of paid sick leave that is available to the employee to use by the completion of the employer’s two-hundredth (200th) calendar day of employment.
• Raises an employer’s authorized limitation on the use of carryover sick leave to forty (40) hours or five (5) days in each year of employment.
  • Redefines “full amount of leave” to mean five (5) days or forty (40) hours.
• Beginning January 1, 2024, increases the sick leave accrual rate for providers of in-home supportive services and waiver personal care services to forty (40) hours or five (5) days in each year of employment.
• Changes a condition allowing an employer to not provide additional paid sick days to be that an employee must be eligible to earn at least five (5) days or forty (40) hours of sick leave or PTO within six (6) months of employment.
• Increases accrual thresholds for paid sick leave to eighty (80) hours or ten (10) days.
• Provides that certain provisions (e.g., those governing compensation for accrued, unused paid sick days upon specified employment events; lending of paid sick days to employees; written notice requirements; calculation of paid sick leave; reasonable advance notification requirements; and payment of sick leave taken) shall preempt any local ordinance to the contrary.
• Includes findings that changes proposed by the bill address a matter of statewide concern rather than a municipal affair and therefore apply to all cities (including charter cities).

SB-699

• Establishes that a noncompete agreement is unenforceable regardless of where and when it was signed.
• Prohibits a current or former employer from attempting to enforce a noncompete agreement regardless of whether it was signed and the employment was maintained outside of California.
• Prohibits an employer from entering into a noncompete agreement with a current or prospective employee.
• Establishes that an employer who violates the law commits a civil violation.
• Authorizes a current, former, or prospective employee to bring an action to enforce the law for injunctive relief or the recovery of actual damages (or both), and provides that a prevailing employee (whether current, former, or prospective) is entitled to recover reasonable attorney’s fees and costs.
• Makes a related statement of legislative findings and declarations.

SB-700

• Makes it unlawful for an employer to request information from a job applicant relating to the latter’s prior use of cannabis.
  • BUT: Exempts such information obtained from a person’s criminal history if the employer is allowed to consider or inquire about that information under Cal. Gov. Code § 12952 or other state or federal law.

SB-723

• Redefines “laid-off employee” to mean any employee who was employed by an employer for six (6) months or more and whose most recent separation from active employment by the employer occurred on or after March 4, 2020, and was due to a reason related to the COVID-19 pandemic.
• Creates a presumption that a separation due to a lack of business, reduction in force, or other economic, non-disciplinary reason is due to a reason related to the COVID-19 pandemic (unless the employer establishes otherwise by a preponderance of the evidence).
• Extends the December 31, 2024 repeal date until December 31, 2025.

SB-848

• Makes it an unlawful employment practice for an employer to refuse to grant an eligible employee’s request to take up to five (5) days of reproductive loss leave following a reproductive loss event (as defined).
  • A “reproductive loss event” 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.”
• Requires leave to be taken within three (3) months of the event (or of the end of certain other leave the employee may be on before or immediately following a reproductive loss event), and pursuant to any existing leave policy of the employer.
• Provides that if an employee experiences more than one (1) reproductive loss event within a 12-month period, the employer is not obligated to grant a total amount of reproductive loss leave exceeding twenty (20) days within a 12-month period.
• In the absence of an existing policy, the reproductive loss leave may be unpaid.
  • BUT: Authorizes an employee to use certain other leave balances otherwise available to the employee (including accrued and available paid sick leave).
• Makes leave under these provisions a separate and distinct right from any right under the California Fair Employment and Housing Act.
• Makes it an unlawful employment practice for an employer to retaliate against an individual because the individual exercised the right to reproductive loss leave or the individual gave information or testimony as to reproductive loss leave.
• Requires an employer to maintain employee confidentiality relating to reproductive loss leave.

If you have any questions about any of the above, please feel free to contact Katchko, Vitiello & Karikomi, PC for more information and a member of the team will be happy to assist.

By Patrick Babajanian, January 8, 2024.