The Essential – November 2023 Edition









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November 2023 // Volume 12 // Issue 3

FALL UPDATE

Hello Clients and Friends,

Welcome to the Fall Edition of the Essential!
 

2024 is just around the corner, and new legislation in California will be going into effect January 1 as well as at other times in 2024.  While this issue of The Essential is by no means exhaustive of the changes, we’ve highlighted key legislation that will affect most employers.  As such, note that there are a few industry-specific legislative changes, one of which we will highlight here and that will have major implications for companies in other industries – see the fast-food minimum wage post below.

As we near the end of the 2023, we wish you a Happy Thanksgiving and holiday season!

 
Enjoy and be well,

Sonya L. Kemp – Founder and President
 

Paid Sick and Safe Leave (SB 616)

An increase to Paid Sick and Safe Leave (PSSL) will take effect on January 1, 2024.

The annual use cap of PSSL will increase from 3 days or 24 hours (whichever is greater) to 5 days or 40 hours (whichever is greater) whether frontloaded or accrued.

If your company uses the accrual method, employees must accrue 40 hours by the 200th day of employment or in each 12-month period. This accrual target can be achieved with 1 hour of PSSL for every 30 hours worked. If you use an alternative accrual method, you will need to ensure that employees receive the full 40 hours by their 200th day of employment and the same amount by the 200th day in each subsequent year.  As with the current law, any unused accrued PSSL must be carried over to the next year up to an accrual cap of 10 days or 80 hours. (The current accrual cap is 6 days or 48 hours)

If using the frontload method, state law allows employers to avoid carryover of unused PSSL, but keep in mind that local ordinances may require carryover of frontloaded leave.

As a reminder, full-time, part-time and temporary workers are eligible for PSSL if they work for the same employer for at least 30 days within a year in California and complete a 90-day employment period before taking any paid sick leave. An employee covered by a collective bargaining agreement is not covered by the law if the agreement provides paid sick days or paid time off.

SB 616 preempts certain provisions of local sick leave laws.  Specifically, state law will need to be followed in these areas:

  • End of employment payout of employees’ unused sick leave
  • Employer advancement of (unaccrued) sick days to employees
  • Employer written notice requirement regarding available leave
  • Rate of pay calculations for employees’ actual sick leave taken
  • Employee notification for foreseeable and unforeseeable use of sick leave
  • Timing of payment to employees for paid sick leave used

Reproductive Loss Leave (SB 848)

Effective January 1, 2024, private employers with 5 or more employees will need to provide up to 5 unpaid days of leave following a reproductive loss event.  This leave is considered protected time off.  Similar to Bereavement Leave, the time does not need to be taken at once but must be taken within 3 months of the event. If multiple reproductive losses occur, the total number of days may not exceed 20 days within a 12-month period.  A reproductive loss event is broadly defined to include a failed adoption, failed surrogacy, miscarriage, stillbirth or unsuccessful assisted reproduction. Employees are eligible for this leave if they have been employed for at least 30 days prior to the need for leave.  Employees may use any form of paid time off that a company provides such as vacation or safe and sick leave.
 

Non-Compete Agreements
(SB 699 and AB 1076)

As you may know, California already prohibits non-compete agreements.  However, effective January 1, 2024, the above two bills further limit employer attempts to restrain employee competitive business pursuits. Now such contracts are void and unenforceable regardless of where and when the contract was signed.  Employers who try to enforce such contracts will commit a civil violation. If you have such agreements in place, you will need to notify by February 14, 2024 any employees or former employees hired after January 1, 2022 that the non-compete agreement or clause is void.  There are more to these two laws, so if you have agreements containing non-compete language, EBHR highly recommends that you speak with labor counsel.

Equal Pay and Anti-Retaliation Bill
(SB 497)

Effective January 1, 2024, this bill creates a rebuttal assumption of retaliation if an employee is disciplined or discharged within ninety (90) days of engaging in certain activity protected by the California Labor Code and the California’s Equal Pay Act.  Such activity includes an employee reporting suspected wage and hour violations.  This bill makes it easier for an employee to establish a prima facie case of retaliation if the employer has taken an adverse employment action within 90 days of the employee making the complaint.  Therefore, employers should make sure to timely and thoroughly document any disciplinary issues as they occur to avoid potential claims of retaliation.

 

Fast-Food Industry Minimum Wage
(AB 1228)

Effective April 1, 2024, the minimum wage for fast-food workers will be $20 per hour.  This bill applies to national fast-food chains which has been defined as “limited-service restaurants consisting of more than 60 establishments nationally that share a common brand, or that are characterized by standardized options for decor, marketing, packaging, products, and services, and which are primarily engaged in providing food and beverages for immediate consumption on or off premises where patrons generally order or select items and pay before consuming, with limited or no table service.”

A “limited-service restaurant” includes, but is not limited to, an establishment with the North American Industry Classification System Code 722513. Bakeries and grocery stores are exempt from this definition and are not included as fast-food restaurants.

AB 1228 establishes a fast-food council which can increase the hourly minimum wage each year by the lesser of 3.5% or the average change in the U.S. Consumer Price Index.

As good employees remain hard to find and keep, EBHR recommends that you evaluate current employee pay as this bill may incentivize employees to pursue this new pay rate elsewhere.
 

Workplace Violence Safety
Requirements (SB 553)

In July 2024, covered employers will need to develop and implement a workplace violence prevention plan as part of their Injury and Illness Prevention Plan (IIPP).  A workplace violence prevention plan for the health care industry came into effect back in 2017 by Cal-OSHA.  The key requirements of SB 553 are expected to be similar to those imposed in that industry.  See this link to JD Supra for good Q&As on this law.

Things to Remember

Minimum Wage Increases
Many states, including California, will see minimum wage increases effective January 1, 2024.  See the state minimum wage tracker here.
 

Questions?  Contact Us! 

We invite you to reach out to us for support on matters such as reviewing your employee handbook, scheduling and training employees on Harassment Prevention Training, or any other HR matters.  Please feel to reach out to us at [email protected] for support. 

 

Key Dates

Sunday, 11/5   —  Daylight Savings Time Ends
Tuesday, 11/7   —  Election Day
Saturday, 11/11  —  Veterans Day
Sunday, 11/12  —  Diwali
Thursday, 11/23 —  Thanksgiving Day
Thursday, 12/7 —  Hanukkah (at sundown)
Thursday, 12/21 — First Day of Winter
Monday, 12/25 — Christmas Day
Tuesday, 12/26 — Kwanzaa Begins
Monday, 1/1/24 — New Year’s Day
Monday, 1/15/24 — Martin Luther King Jr. Day

 

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This publication is intended to provide general information only and is not intended as a source of legal advice.  You should not assume that any information included applies to your specific situation.  Accordingly, you should not use this information as a substitute for legal advice from a licensed attorney.

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