Ocean waves aren’t the only thing washing over the Golden State this summer – California employers should brace themselves for a tidal wave of changes that may impact their workplace this season. This midyear roundup highlights what you need to know about recent legal developments of significance to California employers, including:
Key changes under the PAGA reform;
- Requirements under the now-effective Workplace Violence Prevention Plan law;
- New standards under Cal/OSHA’s now-effective indoor heat illness prevention rule;
- The California Civil Rights Department’s proposed regulations regarding workplace use of automated decision-making systems;
- Requirements under Los Angeles County’s Fair Chance Ordinance; and
- Significant legislative updates.
Read on for highlights of these topics to prepare your workplace for a sea of change.
PAGA Reform Has Officially Arrived!
Before we delve into the litany of legal developments that perpetually encumber California employers, let’s take a moment to discuss one big reason to celebrate – PAGA reform is finally here! As we recently discussed HERE, on June 18, 2024, Governor Gavin Newsom announced an agreement to significantly reform the California Private Attorneys General Act (“PAGA”) – the most substantive overhaul in its 20-year history. On June 21, details of the proposed reform were released with the introduction of PAGA reform bills AB2288 and SB92. On June 27, the California Senate and Assembly unanimously passed both bills, ensuring a controversial initiative to repeal PAGA is removed from the November 2024 ballot. On July 1, Governor Newsom signed the bills into law providing a rare win for employers throughout the Golden State.
The reform package contains several employer-friendly provisions expected to limit frivolous litigation and excessive penalties against employers by, among other things, imposing more restrictive standing requirements for plaintiffs, codifying manageability measures, and reforming the penalty structure. Amendments to the law apply only to civil actions filed on or after June 19, 2024.
An overview of key changes under the PAGA reform include:
- Higher threshold for standing;
- Reduced penalties for good faith compliance and limited aggravated penalties;
- Reduced penalties for certain technical or isolated violations;
- Reduced penalties for cured violations;
- Elimination of penalties for derivative claims (anti-stacking);
- Reduced penalties for employers with weekly pay periods;
- Codified manageability measures; and
- Expanded opportunities to cure violations.
For additional details on changes under the PAGA reform, see our recent eAlert HERE.
Now Effective: Workplace Violence Prevention Plan Requirements
For better or for worse (and no doubt much to the chagrin of employers throughout the state), California once again blazed the trail in September 2023 by enacting the country’s first general industry workplace violence prevention safety law, imposing obligations on nearly all employers to establish a written Workplace Violence Prevention Plan (“WVPP”), provide training to employees on the WVPP, and maintain records of training and workplace incidents.
As of the effective date of July 1, 2024, employers are required to:
- Establish and implement a written Workplace Violence Prevention Plan (“WVPP”);
- Provide effective training to employees on the WVPP and additional training when a previously unrecognized workplace violence hazard has been identified or changes are made to the WVPP;
- Record violent workplace incidents in a violent incident log; and
- Create and maintain records of all training, workplace incident investigations, and actions related to workplace violence hazard identification, evaluation, and correction.
For additional details on the now-effective WVPP requirements, see our prior eAlert HERE.
Now Effective: Cal/OSHA’s New Indoor Heat Illness Prevention Standard
Just in time for summer, on June 20, 2024, the California Occupational Safety and Health Standards Board (“Cal/OSHA”) unanimously voted to adopt a new standard under its indoor heat illness prevention rule. Pursuant to Cal/OSHA’s request to expedite the effective date, the rule took effect on July 23, 2024, following swift approval by the Office of Administrative Law. Accordingly, employers must be in rapid compliance with the new standards. Highlights of the rule include the following:
Application: The new standard will apply when the indoor temperature equals or exceeds 82°F when workers are present.
Additional Controls: Employers must implement engineering and administrative controls, such as assessing heat exposure and implementing heat control measures, when (1) the temperature or heat index equals or exceeds 87°F when workers are present, (2) workers wear clothing that restricts heat removal and the temperature equals or exceeds 82°F, or (3) workers work in a high radiant heat area and the temperature equals or exceeds 82°F.
Exceptions: The standard does not apply to (1) prisons, local detention facilities, and juvenile facilities; (2) places of employment where workers are teleworking that are not under the employer’s control; (3) emergency operations that are directly involved in the protection of life or property; and (4) incidental heat exposures where a worker is exposed to temperatures that equal or exceed 82°F and below 95°F for less than 15 minutes in any 60-minute period.
Acclimatization: A supervisor or designated worker must closely observe workers for the first 14 days of assignment if they are newly assigned to (1) a work area where the temperature or heat index reaches at least 87°F; (2) a work area where the temperature or heat index, whichever is greater, reaches at least 82°F and the workers wear clothing that restricts heat removal; or (3) a high radiant heat area where the temperature reaches at least 82°F.
Heat Illness Prevention Plan: Employers must develop and implement a written Heat Illness Prevention Plan (“HIPP”), which must include, at a minimum:
- Procedures for providing sufficient water and access to cool-down areas;
- Procedures to measure and record the greater of the temperature or heat index, identify and evaluate environmental risk factors for heat illness, and implement control measures;
- Emergency response procedures; and
- Acclimatization methods and procedures.
Training: Employers must provide training to workers and supervisors on required topics, including:
- Environmental and personal risk factors for heat illness;
- The employer’s procedures to comply with the rule;
- The importance of frequent water consumption;
- The importance and methods of acclimatization;
- Signs and symptoms of different types of heat illness;
- The importance of immediately reporting to the employer signs and symptoms of heat illness in themselves or co-workers;
- The employer’s procedures to respond to signs and symptoms of heat illness;
- Emergency response procedures, including contacting emergency medical services with clear directions to the worksite; and
- Prior to supervising workers, supervisors must be trained in all the required topics and, additionally, how to monitor and respond to hot weather reports for work areas affected by outdoor temperatures.
Civil Rights Department Proposes Rule to Regulate Use of AI in Employment Decisions
In May 2024, the California Civil Rights Department (“CRD”) released proposed regulations for the use of artificial intelligence and automated decision-making systems regarding applicants and employees. Among the issues addressed, the proposed regulations clarify that:
- Employers are prohibited from using selection criteria that may result in adverse impact or disparate treatment unless such criteria are job-related and consistent with business necessity.
- Criminal history assessments conducted solely through the use of an automated decision-making system do not constitute or replace the requirement for an individualized assessment of an applicant’s criminal history.
- Automated decision-making system assessments that may constitute unlawful medical or psychological inquiries include questions, games, and other challenges intended to measure or evaluate emotional stability, or physical or mental abilities.
- Third parties may be liable for aiding and abetting employment discrimination through the development, sale, and use of automated systems where the use constitutes unlawful disparate treatment or has an unlawful adverse impact on applicants or employees.
For additional details on the proposed regulations, see our recent eAlertHERE.
Los Angeles County Enacts Fair Chance Ordinance In February 2024, the Los Angeles County Board of Supervisors passed a Fair Chance Ordinance (“FCO”) to regulate the consideration of applicants’ and employees’ criminal history information by employers located or doing business in the unincorporated areas of Los Angeles County (“LA County”). The FCO expands upon California’s Fair Chance Act (“FCA”) requirements and imposes obligations well beyond those required under existing federal and state law.
Highlights of the FCO, effective September 3, 2024, include the following:
- Applies to “employers” located or doing business in the unincorporated areas of LA County with five or more employees regardless of location, and to employment agencies, non-profit organizations, and entities or agents that evaluate an applicant’s or employee’s criminal history information on behalf of an employer.
- Protects “applicants” who apply for employment or a promotion with a covered employer; “employees” who perform at least two hours of work on average each week within the unincorporated areas of LA County; and independent contractors, freelancers, and remote workers whose physical work location is within the unincorporated areas of LA County.
- Covered “employment” includes any job, vocation, or occupation, including work that is seasonal, temporary, contracted, contingent, or commission-based, and paid or unpaid vocational or educational training.
- Job postings and announcements must state that qualified applicants with criminal records will be considered for employment in accordance with the FCO and FCA. Postings for job offers conditioned on criminal background checks must include a list of all “material job duties” of the specific position with which criminal history may have a “direct, adverse, and negative” relationship.
- Inquiries into certain types of criminal history are prohibited (e.g., certain marijuana-related convictions, and non-criminal infractions). With limited exceptions, criminal history inquiries are limited in scope to seven years from the date of disposition.
- Employers that conduct criminal background checks in connection with a conditional offer must provide written notice to the individual, including “good cause” justification to support a criminal history review for the specific position.
- Prior to taking adverse action, employers must conduct an initial individualized assessment to determine whether the individual’s criminal history has a “direct, adverse, and negative” bearing on the individual’s ability to perform the job.
- Prior to taking adverse action after the initial individualized assessment, the employer must send a preliminary notice of adverse action to the individual, including notice of the right and timeline to respond, and copies of the initial individualized assessment and criminal background check report.
- Following the initial individualized assessment, the employer must consider all information submitted by the individual and conduct a second individualized assessment.
- Prior to taking adverse action after the second individualized assessment, the employer must send a final notice of adverse action to the individual, including a copy of the second individualized assessment, the employer’s procedures to challenge or request reconsideration of the decision, and notice of the right to file a complaint with the Los Angeles County Department of Consumer & Business Affairs (“DCBA”) for FCO violations and the state’s Civil Rights Department for FCA violations.
- Employers must post notice of the FCO at every workplace and on webpages frequently visited by employees or applicants. Unionized employers also must send a copy of the notice to the unions. The yet-to-be-published notice will be made available by the DCBA prior to the FCO’s effective date.
Midyear Legislative Updates
SB1137: Prohibits Discrimination Based on a Combination of Protected Characteristics
In February 2024, California introduced SB1137, which would amend the Unruh Civil Rights Act and the California Fair Employment and Housing Act to:
- Revise the definitions of unlawful discrimination to include discrimination based on any combination of characteristics protected under each respective law; and
- Include effective remedies for discrimination based on the combination of two or more protected bases.
Earlier this year, the Equal Employment Opportunity Commission issued its updated Enforcement Guidance on Harassment in the Workplace which includes a discussion on the concept of “intersectional” discrimination. The agency notes that this form of discrimination can occur based on a combination of protected characteristics, even in the absence of discrimination based on one of those traits alone (e.g., discrimination against an Asian woman, despite favorable consideration of an Asian man and a White woman). For additional information on “intersectional” discrimination, see our recent eAlert HERE.
AB2930: Regulates AI Use in Screening and Hiring of Applicants
In February 2024, California introduced AB2930, which aims to regulate the use of artificial intelligence in the hiring and screening process. The proposed law would prohibit employers from using an automated decision tool (“ADT”) to make “consequential decisions” in a manner that results in “algorithmic discrimination.” The law would require employers to:
- Notify individuals in advance that an ADT will be used to make consequential decisions;
- Provide accommodations upon an individual’s request to be subject to an alternative selection process, if technically feasible;
- Conduct annual impact assessments of ADTs; and
- Establish a governance program to manage reasonably foreseeable risks of algorithmic discrimination associated with the ADT.
For additional details on the proposed law, see our recent eAlertHERE.
AB2751: Provides Employees with the “Right to Disconnect” from Employer Communications
In April 2024, California introduced AB2751, also known as the “Right to Disconnect” law, which sought to provide employees with the right to ignore communications from their employer during “nonworking hours” – i.e., the hours before and after an employee’s assigned work hours. Although the bill stalled out in this year’s legislative session, the considerable interest it received may be an indication that similar legislation could emerge on next year’s agenda.
The proposed law would have required employers to establish a workplace policy regarding the “right to disconnect” during nonworking hours. Employers would have been required to establish such nonworking hours by written agreement with each employee. Exceptions to the law would have allowed employers to contact employees during nonworking hours for unforeseen situations that threaten an individual or the public, disrupt operations, or cause physical or environmental damage; or for changes to a schedule within 24 hours. The law would not have applied to employees covered by a valid collective bargaining agreement.
If you have questions relating to or need assistance complying with any of these legal developments, please reach out to the NFC Attorney with whom you typically work or call us at 619.292.0515.
