Blog post by Fox Rothschild associate, Gabrielle Gordon

The close of the 2021 California legislative session brings forth a series of new wage and hour laws that impact employers and take effect on January 1, 2022.

Assembly Bill (AB) 286 addresses food delivery, including purchase prices and tip.

AB 286 amends the Fair Food Delivery Act of 2020, and (1) makes it unlawful for a food delivery platform to charge a customer any purchase price higher than the price posted on the food delivery platform’s internet website by the food facility at the time of the order, and (2) makes it unlawful for a food delivery platform to retain any portion of amounts designated as a tip or gratuity. The law requires a food delivery platform to pay the entire tip or gratuity for a delivery order to the person delivering the food or beverage, and to pay the entire tip or gratuity for a pickup order to the food facility.

AB 701 requires California warehouse distribution centers to disclose quotas to nonexempt employees upon hire or within thirty (30) days of  the January 1, 2022 effective date.

Warehouse distribution centers will be required to provide nonexempt employees with a written description of each quota to which the employee is subject, including the number of tasks to be performed, or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota.

AB 701 further provides that an employee shall not be required to meet a quota that prevents compliance with meal or rest periods, use of bathroom facilities, or occupational health and safety laws. If a current or former employee believes that meeting a quota caused a violation of their right to a meal or rest period or required them to violate any occupational health and safety law or standard, they have the right to request, and the employer must provide, a written description of each quota to which the employee is subject and a copy of the most recent ninety (90) days of the employee’s own personal work speed data.

This new law also authorizes a current or former employee to bring an action for injunctive relief to obtain compliance with specified requirements, and may, upon prevailing in the action, recover costs and reasonable attorney’s fees in that action. The Labor Commissioner is required to enforce these provisions by engaging with the Department of Industrial Relations.

AB 1003 provides that intentional wage theft is punishable as grand theft

An employer’s intentional theft of an employee’s wages, gratuities, benefits, or other compensation in an amount greater than $950 from any one employee, or $2,350 in the aggregate from two (2) or more employees, in any consecutive 12-month period, is punishable as grand theft. AB 1003 includes independent contractors within the meaning of employee, and hiring entities of independent contractors are included within the meaning of employer.

Senate Bill (SB) 62 regulates payment of employees in the garment manufacturing industry

SB 62 prohibits a garment manufacturer or brand guarantor from paying employees engaged in the performance of garment manufacturing by the piece or unit, or by the piece rate, unless the employees are covered by a bona fide collective bargaining agreement.

SB 62 additionally imposes compensatory damages of $200 per employee, payable to the employee, for each pay period in which each employee is paid by the piece rate.

Further, all employers engaged in the business of garment manufacturing and brand guarantors are required to keep all contracts, invoices, purchase orders, work orders, style or cut sheets, and any other documentation pursuant to which garment manufacturing work was, or is being, performed for four (4) years.

SB 572 authorizes the Labor Commissioner to record liens on real property

As an alternative to a judgment lien, SB  572 authorizes the Labor Commissioner to record a lien on real property. The purpose of this is to secure amounts due to the commissioner under any final citation, findings, or decision.

SB 639 prepares to phase out the existing law authorizing an employee with a disability to be paid less than the legal minimum wage

Existing law permits the Industrial Welfare Commission to issue an employee who is mentally and/or physically disabled a special license authorizing the employment of the licensee for a wage less than the minimum wage. Existing law requires the commission to fix a special minimum wage for the licensee, which may be renewed on a yearly basis.

SB 639 requires the State Council on Developmental Disabilities, to develop a phaseout plan to pay any employee with a disability, no less than the state minimum wage otherwise required Industrial Welfare Commission.

This bill prohibits new special licenses from being issued after January 1, 2022, and permits a license to only be renewed for existing license holders who meet requisite benchmarks. The bill makes the above-described provision authorizing a lesser minimum wage for an employee who is mentally and/or physically disabled inoperative on January 1, 2025, or when the multiyear phaseout is released, whichever is later. The bill, commencing on the later of January 1, 2025, or when the plan is released, would prohibit an employee with a disability from being paid less than the legal minimum wage or the applicable local minimum wage ordinance, whichever is higher.

SB 646 prohibits janitorial workers represented by a labor organization from bringing forth PAGA claims

The Private Attorneys General Act (PAGA), authorizes an aggrieved employee to bring a civil action to recover specified civil penalties that would otherwise be assessed and collected by the Labor and Workforce Development Agency on behalf of the employee and other current or former employees for the violation of certain provisions affecting employees.

SB 646 creates an exemption from PAGA for a janitorial employee represented by a labor organization with respect to work performed under a valid collective bargaining agreement in effect any time before July 1, 2028, that expressly provides for the wages, hours of work, and working conditions of employees. The PAGA exemption for janitorial employees expires when the collective bargaining agreement expires, or on July 1, 2028, whichever is earlier.

The Fox Rothschild team will continue to monitor and report on new legal developments for 2022.