By Kristina M. Launey 

Seyfarth Synopsis: Among new workplace legal requirements effective January 1, 2024, making employers green in the face with end of the year preparations are necessary revisions to Wage Theft Notices. They must be ready for distribution starting January 1 to new hires and when information changes, in line with the new template notice from the Division of Labor Standards Enforcement (DLSE).

As stealthy as the Grinch on Christmas Eve, California has slipped in a few additional requirements for employers effective January 1, 2024. Even if you thought you were ahead of the game making your year-end list, Seyfarth is here to help make sure you check everything off  – and top of your list should be to update your Wage Theft Notices for all employees. Stay tuned for a follow up blog on other items, and make sure to check your list twice!

As Cuddly As A Cactus – New Wage Theft Prevention Notice Revisions  

California Labor Code Section 2810.5 has required employers since 2012 to provide Wage Theft Notices containing specific information to all employees at the time of hire, and within seven days of any changes of the information unless the new information appears on the next timely wage statement.

With all the tender sweetness of a seasick crocodile, California recently passed AB 636, now requiring employers to revise and be ready to roll out, starting January 1, 2024, updated Notices with additional information on “the existence of a federal or state emergency or disaster declaration applicable to the county or counties where the employee is to be employed, and that was issued within 30 days before the employee’s first day of employment, that may affect their health and safety during their employment.” While one man’s toxic sludge may be another man’s potpourri, it will now be incumbent on employers to notify employees in updated Wage Theft Notices of such emergency declarations.

UPDATE!! New Employer Obligations Here Mangled Up In Tangled Up Knots

Yes, this will be as logistically difficult for employers as getting the Grinch in the holiday spirit. It would seemingly require employers to be constantly checking federal, state, and county websites to determine whether a state of emergency/disaster has been issued within the past 30 days impacting workers in their county, and to provide that information with the Wage Theft Notice as appropriate for each situation and work location.

This new requirement came without ribbons, it came without tags. It came without packages of template notices from the DLSE, as AB 636 requires the Labor Commissioner to publish an updated Notice template, but not until March 1, 2024 – timed for the other major change AB 626 made, to require employers with federal H-2A agricultural visa employees to, by March 15, 2024, include on the Wage Theft Notice information (in Spanish and English if requested by the employee) about the agricultural employee’s rights under California law.

BUT UPDATE!! On December 14, 2023, just in the nick of time, the DLSE (ahead of schedule) updated the template notice available online for employers to use starting January 1, 2024.

Moldy Purple Spots And Toadstool Sandwiches With Arsenic Sauce – What’s A Health And Safety Emergency?

While the DLSE and Legislature have not yet provided any guidance on what constitutes the kind of emergency or disaster declaration that may need to be included on Notices, early discussions in the legislative history indicate this provision was prompted by COVID-19 outbreaks amongst vulnerable H-2A farm worker populations. With that as the backdrop, we think it is likely broad emergency or disaster declarations addressing things like disease outbreaks (COVID upticks, and possibly also localized outbreaks of things like measles, monkeypox, or TB), or natural or physical disasters (including wildfires, wildfire smoke, earthquakes, floods) will likely be included.

We’ll keep an eye on the DLSE’s website to see if it issues guidance on what “that may affect your health and safety during employment” means for purposes of this law, and to see if it issues an updated Notice sooner. To be safe, employers should consult their attorneys to prepare language that will comply with these new requirements for the Wage Theft Notice, and to establish a process to check for emergency/disaster declarations, in order to be ready to go by January 1.

Before Climbing Mt. Crumpet, Don’t Forget To Also Update The Paid Sick Leave Notice Portions

The Wage Theft Notice must also contain a section related to Paid Sick Leave and the amounts employees may accrue under the law. As we addressed in our prior blog, California has changed the current state law requirements of up to 24 hours/3 days per year to up to 40 hours/5 days per year. Like the Grinch getting that last crumb up the chimney, don’t forget to change this part of the Notice too.

Workplace Solutions

While some of these new 2024 requirements may be as terrible as a bad banana with a greasy black peel, your Seyfarth counseling team will be here to guide you through the end of the year and into compliance. Stay tuned for our next blog on additional end of year items!

Edited by Coby Turner