Though you may still be on a sugar high from Halloween, the new year is fast approaching, and with it, the onset of several new California employment laws. Employers should prepare now by updating their handbooks for 2024. While there are a myriad of employment laws to be aware of, we outline the most pertinent changes California employers should make to their handbooks, below:
Update Paid Sick Leave Policies for Higher Accrual Requirements, Carryovers, and Caps
Change Your Policy from 24 hours to 40 hours
If you are not subject to a local paid sick leave law, you should update your paid sick leave policy to reflect that employees must now receive five days or 40 hours of paid sick leave per year. Employers may still elect the lump sum or the accrual method. For employers with an accrual policy, employees still accrue PSL at a rate of 1 hour for every 30 hours worked. If using an alternative accrual method (anything other than 1 hour accrued for every 30 hours worked), then employees must accrue no less than five days or 40 hours by the 200th calendar day of the employment, each calendar year, or in each 12-month period [together with the existing requirement that they accrue 3 days or 24 hours by the 120th day of work].
Implement New Carryover Requirements & Use Caps
If using the lump-sum method, employers need not allow for any carryover, if the full amount of leave is received at the beginning of each year of employment, calendar year, or 12-month period. If using the accrual method (or any alternative accrual method), employers must allow employees to carryover (but may cap accrual) at 10 days (or 80 hours).
An employer can limit an employee’s use of accrued paid sick leave to 40 hours or five days in each year of employment, calendar year, or 12-month period.
Also ensure that when issuing 2810.5 Wage Theft Notice to Employee to new hires that you accurately reflect the new amount of paid sick leave.
Ensure No References to Non-Compete or Non-Solicitation Clauses
Remove noncompete provisions from your handbook, including non-solicitation of customer or employees provisions. Also, any employer that required a current or former employee to sign a noncompete who was employed after January 1, 2022, must notify each current or former employee in writing that the noncompete agreement they entered into is void no later than February 14, 2024. Please beware, employees who signed handbook acknowledgments with noncompete agreements lawful in other states before moving to California must sign a new acknowledgment that acknowledges a handbook with no noncompete agreements.
Revise Your Bereavement Leave Policy to Include Reproductive Loss
If you have five or more employees, revise your bereavement policies to include entitlement for a “reproductive loss event.” Entitlements for reproductive loss leave includes, for example, a failed adoption or surrogacy, miscarriage, stillbirth, or unsuccessful assisted reproduction. Employers may limit the leave to employees who have worked for the employer for at least 30 days. Employees are allowed to take the days nonconsecutive days off within three months of the reproductive loss. The leave is unpaid. Should the employee have another reproductive loss, they are entitled to an additional 5 days up to a maximum of 20 days in a 12-month period (although, employers may provide more).
Review Policies for Interference With the National Labor Relations Act (“NLRA”)
With the National Labor Relations Board (“NLRB”) taking an aggressive stance against potential infringement of employee rights under Section 7 of the NLRA, employers should review their standards of conduct policies, confidentiality policies and social media policies, in particular. Consider removal of language impeding employees’ off-duty, lawful conduct. Consider restricting only limited categories of speech, for example, hate speech, incitements to violence, and disclosure of trade secrets in the social media policy. Consider also including NLRA disclosures that handbook policies are not intended to limit employees’ lawful, off-duty conduct or to infringe their right to discuss the terms and conditions of their employment. Generally, the NLRB considers one NLRA savings clause to broadly cover the whole handbook insufficient.
Implement a Workplace Violence Prevention Plan and Training by July 1, 2024
Consider adding a Workplace Violence Prevention Plan in your handbook or as an addendum to same. California employers must Implement a workplace violence prevention program by July 1, 2024, provide training to employees on workplace violence hazards, maintain a violent incident log and other workplace violence-related records, and then conduct periodic reviews of the plan. The plan must: (1) designate a responsible person; (2) have procedure to gain involvement of employees in development and implementation of the plan; (3) describe methods the employer will use to coordinate the plan with employees; (4) have procedure for the employer to take and respond to reports of workplace violence and to prohibit retaliation for same; (5) contain procedure for how to communicate with employees regarding workplace violence, how to report incident, threats or concerns, and must also have effective measures to alert employees of a workplace violence emergency and where to seek help; (6) have procedure to identify and evaluate workplace violence hazards and concerns; (7) have procedure for response and investigation; and (8) describe procedures for plan review, including by employees and authorized representatives. Employers must also provide training on the workplace violence prevention program to employees. This does not apply to healthcare employers, employees teleworking from a location not controlled by the employer, places of employment that are inaccessible to the public and have fewer than 10 employees working at any time, and certain state agencies.
Ensure Your Pregnancy Accommodations Policy complies with the Pregnant Workers Fairness Act
California employers should ensure their pregnancy accommodations (and other accommodations policies) do not infringe employees’ rights under the Pregnant Workers Fairness Act (“PWFA”)—a federal doctrine that may be more restrictive than state or local laws. Although already in effect, the PWFA requires reasonable accommodations for employees and applicants of covered employers (with 15 or more employees) who have known limitations related to pregnancy, childbirth, or related medical conditions. The House Committee on Education and Labor Report on the PWFA provides several examples of what reasonable accommodations may be. Some pertinent examples include allowing employees covered by the PWFA to: sit or drink water; receive closer parking; have flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; take leave or time off to recover from childbirth; and be excused from strenuous activities or activities that involve exposure to compounds not safe for pregnancy.
With less than two months remaining before many of these laws take effect, it’s imperative for employers to turn their focus on 2024 compliance now before they are left playing catch up. A dose of prevention beats an ounce of cure. This above policy revisions list is not exhaustive and only highlights some major changes in California law. Employers should consult counsel to craft compliant policies and discuss the full breadth of what these new laws entail.