Any one of three bills still advancing through the California Legislature’s 2022 session will have broad consequences for California employers if enacted. The Legislature has until August 31 to pass pending bills and send them to the Governor, who will have until September 30, 2022, to sign or veto them. This post briefs you on three important bills we are watching.
Employees Could Skip Out of Work in Emergencies Under Senate Bill
Senate Bill 1044, if enacted, would allow employees to leave work or refuse to report to work with impunity if they reasonably believe the worksite is unsafe during an “emergency condition.” More specifically, the bill would make it unlawful for an employer to take or threaten adverse action against an employee for refusing to report to or for leaving a worksite during an emergency condition if the employee reasonably believes the work location is unsafe. Under the bill, “emergency conditions” are circumstances where “natural forces or a criminal act” create conditions of “extreme peril to the safety of persons or property.” First responders, healthcare facility employees and employees in other specified roles are excluded from this part of the bill.
Where an order is made to evacuate a worksite, an employee’s home or the school of an employee’s child, the bill would make it unlawful for an employer to bar the employee from using their cell phone or other device while on duty to let someone know they are safe, to call for emergency assistance or to assess the safety of the situation. The bill does not explain whose order is needed to trigger the prohibitions in this part.
Pandemics are not emergency conditions under the bill.
The state Senate passed the bill in May. The bill remains alive in the Assembly.
The bill would enact new California Labor Code section 1139. If the bill is enacted, violations would give rise to penalties under the state Private Attorneys General Act (“PAGA”), among other consequences.
Off-the-Job Pot Use Would Have FEHA Protections Under Assembly Bill
Assembly Bill 2188 would make it unlawful for employers to discriminate against applicants or employees for their use of cannabis off the job and away from the workplace. In order to accomplish this, the bill, in part, seeks to stop employers from considering the results of drug tests that indicate the presence of THC metabolites in a person’s urine, hair, blood or bodily fluids, as metabolites do not indicate whether the person is currently impaired. Such metabolites may remain in a person’s body for weeks after the use of cannabis. The bill would bar discrimination for off-the-job use, regardless of whether it is used for medical reasons or recreation.
The bill, if enacted, would not bar employers from basing actions involving applicants and employees on either tests that identify the presence of THC (as opposed to metabolites) in a person’s saliva or other bodily fluids or tests of impairment as compared to the employee’s baseline performance.
If enacted, the bill will add a new provision to the California Fair Employment and Housing Act, namely, Government Code section 12954. Violations of the new provision apparently would be enforceable by an individual’s lawsuit for economic losses, emotional distress damages, attorney’s fees and potentially punitive damages, as well as by action by the California Department of Fair Employment and Housing.
The bill passed the state Assembly in May and is alive in the Senate.
Fast Food Employers’ Obligations Would be Recast Under Assembly Bill
Assembly Bill 257, if enacted, would transform the relationship between fast food franchisors and franchisees and their obligations to fast food employees in California. If enacted, the Fast Food Accountability and Standards Recovery Act or FAST Recovery Act will mandate the creation of a 13-member Fast Food Sector Council consisting of representatives from state agencies, fast food franchisors and franchisees. The Council would have broad authority to set “sector wide standards,” including to establish the minimum wage, maximum hours of work and other requirements governing fast food restaurant employers. The Council’s standards would govern restaurant operations in California that are part of a chain of 30 or more similar restaurants anywhere in the U.S.
The minimum wage, maximum work hours and other standards set by the Council would, in most instances, override other provisions of state law. Violation of the Council’s standards would be enforceable by the California Division of Labor Standards Enforcement and potentially actions by individuals in court, including under PAGA.
The bill provides that, where a fast food franchisee violates any standard set by the Council, the franchisor will be jointly and severally liable with its franchisee. The Council’s standards aside, the bill would also make franchisors liable along with their franchisees for a franchisee’s violations of large swaths of the California Labor Code, Health and Safety Code, state statutes barring unfair competition and orders of the Governor, cities and counties.
The bill was originally proposed in the state Assembly in January 2021. The Assembly passed the bill in January of this year. The bill is now pending in the Senate and remains in play.
The bills above are examples of the ever-changing landscape of California employment law.
Our California Labor & Employment team will continue to keep a close eye on these and all other significant developments in the state’s employment law.
If we may help you, please contact the author or your Fox Rothschild LLP counsel.
This post provides general information and does not constitute legal advice to any person with respect to any circumstance. This post does not create an attorney-client relationship with any person.