New Legislation Affecting California Employers – Part 3

The California Legislature enacted numerous new bills – some (like those regarding COVID-19) are in effect now. Others require employer compliance as of January 1, 2023. This is the third part in a series of posts regarding important changes to California Labor Law.

Part 1 covers critical pay transparency reporting and disclosure mandates, among other legislative changes, and is available here.

Part 2 regarding laws affecting certain employer leave policies, and future protections for fast food workers, is here.

AB 2693:  COVID-19 Notice of Exposure Requirement Extended and Modified

Generally, when an employer becomes aware of a potential exposure to COVID-19 in the workplace, it must provide notice to employees.  We previously wrote about the COVID-19 exposure notification requirement here. The notification requirement was set to expire on January 1, 2023.

AB 2693 extends the COVID-19 notice requirements by one year to January 1, 2024.  It now permits employers to post the notice “in all places where notices to employees concerning workplace rules or regulations are customarily displayed” (including online portals, as applicable), rather than distribute it.

Additionally, AB 2693 removed the requirement to notify the local public health agency of an outbreak in the workplace.

Notice Specifics 

Per AB 2693, an employer must post a notice re COVID-19 in the workplace within one business day from when the employer receives notice of potential exposure.

The notice must identify:

1. The dates on which an employee, or employee of a subcontracted employer, with a confirmed case of COVID-19 was on the worksite premises within the infectious period.
2. The location of the exposures, including the department, floor, building, or other area. The location need not be so specific as to allow individual workers to be identified.
3. Contact information for employees to receive information regarding COVID-19-related benefits to which the employee may be entitled under applicable federal, state, or local laws (e.g., workers’ compensation, Company sick leave, state-mandated sick leave, supplemental sick leave), as well as anti-retaliation and anti-discrimination protections for employees.
4. Contact information for employees to receive the cleaning and disinfection plan that the employer is implementing per Centers for Disease Control and Prevention (CDC) guidelines and Cal-OSHA’s COVID-19 Emergency Temporary Standards.

The law requires the above notice to remain posted for no less than 15 calendar days.

The notice must be in English and in a language understood by the majority of employees.

Written Notice and Record of Notices

As an alternative to posting the notice, an employer may also provide written notice as was previously required; meaning, provide a written notice via personal service, email, or text message to all employees, and the employers of subcontracted employees, who may have been exposed to COVID-19. 

Additionally, employers are required to give written notice of potential exposure to the exclusive representative (if any) of any confirmed COVID-19 cases and of close contacts.

AB 2693 also requires employers to keep a log of all dates a notice was posted at each worksite. Employers must allow the Labor Commissioner to access these records.

SB 1044:  Workers’ Protections in State of Emergency or Emergency Condition

SB 1044 prohibits employers, in the event of an “emergency condition,” from taking or threatening to take an adverse employment action against any employee who refuses to report to, or leave, a workplace because the employee has “a reasonable belief” that the workplace is unsafe.

Excluded from SB 1044 are several essential workers, such as first responders and health care facility workers who provide direct patient care.

SB 1044 further prohibits employers from preventing any employee from accessing the employee’s mobile device or other communications device for seeking emergency assistance, assessing the safety of an emergency situation, or communicating with a person to verify their safety.

Emergency Condition and Reasonable Belief

“Emergency condition” is defined as:

1. Conditions of disaster or extreme peril to the safety of persons or property at the workplace or worksite caused by natural forces or a criminal act; or
2. An order to evacuate a workplace, a worksite, a worker’s home, or the school of a worker’s child due to natural disaster or a criminal act.

Notably, SB 1044 expressly excludes a health pandemic.

“Reasonable belief” that a workplace or worksite is unsafe, means that “a reasonable person, under the circumstances known to the employee at the time, would conclude there is a real danger of death or serious injury if that person enters or remains on the premises.”

Note, the existence of any health and safety regulations specific to the emergency condition and an employer’s compliance or noncompliance with those regulations may be deemed a relevant factor.

Employee’s Notice and the Private Attorneys General Act (PAGA)

When feasible, employees are required to give prior notice to the employer of the emergency condition that requires the employee to leave/not report to work. If prior notice is not feasible, employees are required to give notice as soon as possible. Although violations of SB 1044 may subject employers to penalties under PAGA, employers are also provided the right to cure alleged violations.

AB 984: Tracking Devices

AB 984 joins previous bills and programs aimed at modernizing the Department of Motor Vehicles (DMV). In part, AB 984 will give the DMV authority to move forward with new vehicle registration technologies and issue alternative devices for license plates, stickers, tabs, and registration codes.  If an alternative device is approved and used by an employer, AB 984 imposes several privacy related restrictions on the employer.

Specifically, AB 984 prohibits employers from using an “alternative tracking device” to monitor employees unless it is strictly necessary for the performance of the employees’ duties, and provided that the monitoring is conducted only during work hours. “Monitor” can include locating, tracking, watching, listening to, or otherwise surveilling an employee.

Notice Requirements

Employers must provide notice to employees prior to conducting any such monitoring with an alternative device. The notice must include all the following:

1. A description of the specific activities that will be monitored.
2. A description of the worker data that will be collected as part of the monitoring.
3. A notification of whether the data gathered through monitoring will be used to make or inform any employment-related decisions, including, but not limited to, disciplinary and termination decisions, and, if so, how, including any associated benchmarks.
4. A description of the vendors or other third parties, if any, to which information collected through monitoring will be disclosed or transferred. The description shall include the name of the vendor or third party and the purpose for the data transfer.
5. A description of the organizational positions that are authorized to access the data gathered through the alternative device.
6. A description of the dates, times, and frequency that the monitoring will occur.
7. A description of where the data will be stored and the length of time it will be retained.
8. A notification of the employee’s right to disable monitoring, including vehicle location technology, outside of work hours.

Retaliation Prohibited

Employees have the right to remove or disable the monitoring capabilities of a tracking device outside of work hours, and no retaliation is permitted against employees who do so. Employees who believe they have been subject to retaliation may file a complaint with the Labor Commissioner.

In addition to civil penalties (see below), employers who retaliate against employees will also be subject to all available penalties, remedies and compensation, including reinstatement and reimbursement of lost wages, benefits, or other compensation.

Penalties

Employers who are in violation of the requirements of AB 984 will be subject to civil penalties of $250 for the initial violation, and $1,000 per employee for each subsequent violation. The penalty will be assessed per employee, per violation, and per each day monitoring is conducted without proper notice.

The Labor Commissioner has enforcement authority under AB 984 and may also issue citations against an employer.

Employer Best Practices

With so many new laws going into effect, managing the ever-changing landscape of federal, state, and local legislation can be overwhelming. Whenever in doubt, be sure to contact legal counsel for clarification. Employers should update their Employee Handbooks to reflect the changes now mandated by California.

This blog is part of a series. Read New Legislation Affecting California Employers in 2023 for more information.

Tal Burnovski Yeyni represent and defend employers.