By Kristina M. Launey 

Seyfarth Synopsis: Prepare for new California workplace legal requirements effective January 1, 2024, now. Seyfarth has you covered with all the ways to protect your workplace just like Kevin McCallister defends his house.

This is your house. You have to defend it. But Seyfarth is here to help you get your business updates in order before the end of the year! Let’s get your policies and practices updated now, so you can ring in 2024 with peace of mind.

We’ve made your list for you. It’s up to you to check it twice and get your work done early – but we at Seyfarth are just a phone call away for help.

Wage Theft Prevention Notice Revision Requirements Sneakier Than The Wet Bandits

As we detailed previously, beginning on January 1, 2024, prepare your battle plans and be ready to roll out your revised Wage Theft Prevention Notices with updated paid sick leave accruals (see below) and 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.”

The DLSE just posted an updated Notice template for employers to follow.  

This House Is So Full of People It’s Making Me . . . Need More Paid Sick Leave

Make sure your recordkeeping and internal leave administration is updated to account for an increased allowance of paid sick leave under California law – moving from 24 hours/3 days per year to 40 hours/5 days per year with  a maximum rolling accrual cap of 80 hours/10 days. Note that the new version of this law may create new obligations even for employers covered by a CBA, so even those who may not have paid close attention to paid sick leave requirements before should do so now.

The Labor Commissioner also updated the California paid sick leave poster, which you will need to replace in your workplace, and the Department of Industrial Relations updated its California Paid Sick Leave Frequently Asked Questions, which endeavor to answer many of the questions employers may have, including how to transition an existing policy to one that is compliant with the increased allowances.

Remember you must also state sick time on each paystub (or in another writing each pay day), and that needs to be updated as well.

Are You Thirsty For More? Minimum Wage And Exempt Salary Thresholds Go Up Again!

Don’t forget that California’s statewide minimum wage increases to $16.00 per hour on January 1, 2024. Multiple municipalities are also raising their minimum wages, including cities like San Jose (up to $17.55), Oakland (up to $16.50), San Diego (up to $16.85), and Belmont topping the list (up to $17.35) (check with your Seyfarth team for a comprehensive list of municipal minimum wage increases). For certain health care workers, the minimum wage will also increase to $18/hour on January 1, 2024, and $23/hour on June 1, 2024, via SB 525. Employers with minimum wage workers should make sure their payroll is ready to make that increase starting on the first of the year, including for those that may be burning the midnight oil on overnight shifts New Years’ Eve.

Employers should also confirm that exempt employees’ salaries will meet the new required thresholds for their exempt classifications, which rise with the minimum wage increase to no less than two times the state minimum wage for full time work – a minimum of $66,560 annually for 2024 for most exempt workers, and a minimum of $115,763.35 for computer software employees.

I Got The Milk, Eggs, And New Workplace Protections

  • Pregnant Workers’ Protections: Not new California requirements, but worthy of note are two new federal protections for pregnant workers. Mark your calendars for December 29, 2023 – the date regulations are slated to issue for the federal Pregnant Workers’ Fairness Act – then review your handbooks and procedures to ensure compliance.
  • Reproductive Loss Leave: As a follow up to the new laws in 2022 related to mandatory protected bereavement leave, this year California has enacted a separate and additional protected leave entitlement specifically related to reproductive loss. So, remember to revise your handbook, policies, and procedures, to ensure employees who suffer a miscarriage, unsuccessful assisted reproduction, failed adoption or surrogacy, or stillbirth, receive up to 5 days of leave per loss event (this may be capped at a total of 20 days in a 12-month period). This applies whether the loss was personal to the employee, or occurred for their spouse, domestic partner, or other individual (so long as the employee would have become a parent but for the loss event).

While the leave may be unpaid, employees must be allowed to use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available, to cover the leave time. Also, in contrast to bereavement leave, this category of leave does not require a written request or any sort of proof as a prerequisite to granting this leave.

Fuller, Go Easy On Checking About Cannabis Use

Beginning January 1, 2024, it will be unlawful for most employers to discriminate against a person in connection with hiring, termination, or another employment decision if the discrimination is based on: (1) the individual’s off-the-job cannabis use away from the workplace; or (2) the individual’s positive nonpsychoactive cannabis metabolites test results. As addressed in Seyfarth’s prior blog in detail, this essentially makes cannabis users a protected class in California, subject to certain industry, job position, and state and federal drug testing exceptions. It also limits the type of drug tests employers may use to ones that measure psychoactive cannabis metabolites—eliminating almost any possible drug testing options for most employers.

Cannabis users are further protected by SB 700 related to prior cannabis use. Employers are forbidden from asking about prior cannabis use on job applications, and they cannot use information obtained from a criminal history report about an applicant or employee’s prior cannabis use (unless the employer is permitted to consider or inquire about that information under other state or federal law) in order to take adverse action or refuse to hire someone.

So, remember to review your policies and practices related to drug testing, criminal history check reviews, and any inquiries related to cannabis use, to ensure compliance with these new requirements.

Don’t Get Caught In Employment Contract Booby Traps

For employees with access to all your private stuff, can you come out and stop them? California is making that tough. To ensure compliance with the requirements and restrictions imposed by SB 699 and AB 1076, by January 1, 2024, employers must evaluate whether any of their employment agreements with California employees—both current and former—contain non-compete provisions, non-solicit of customer or employee provisions, anti-raiding provisions, and overly broad confidentiality agreements, that may be considered unlawful under Section 16600 of the Business & Professions Code, which prohibits contracts in restraint of trade.

For employers who identify that they may have problematic restraint of trade employment contract provisions with current or former employees, by February 14, 2024, they must notify those individuals (who were employed on or after January 1, 2022) in writing that the offending contracts, agreements, or clauses are void. Consult with legal counsel concerning the implication of these new laws on your out of state workers, and on how to engage in the notification process. And, avoid being les incompétents, by ensuring your recruiting and hiring practices going forward take into account this new legislation.

Last but not least for your employment contracts, don’t forget to double-check your arbitration agreements to ensure the language accounts for changes made by SB 365 related to whether claims may be stayed if efforts to arbitrate claims are being appealed. Effective January 1, 2024, Section 1294 of the Code of Civil Procedure no longer contains an automatic stay of all trial court proceedings pending appeal of a denial of a motion to compel arbitration. The decision whether to stay proceedings will be discretionary with the trial court, and it may mean employers will have to defend lawsuits in court while attempting to enforce arbitration agreements. Updating your arbitration agreements now in line with best practices for this new legislation is a must!

All The Great Ones Leave Their Mark With A Workplace Violence Prevention Plan

Be aware and prepared that all employers in California must create, adopt, and implement a written Workplace Violence Prevention Plan July 1, 2024 (thanks to SB 553), which includes 13 requirements (such as procedures to respond to reports or acts of workplace violence, reporting procedures, and emergency alert planning), as well as annual workplace violence prevention training, violent incident logs, and new record retention requirements.

I Made The Paper Disappear!

In a rare bright spot for employers, you’ll now be permitted (via AB 1355) to provide employees with certain required notifications via email instead of through paper, provided they opt into the electronic option with either a written or electronic acknowledgment. This includes notices under the Revenue and Taxation Code that employees may be eligible for the federal and CA earned income tax credit (and more, due at time of W-2/1099), and Unemployment Insurance Code copies of printed statements or materials relating to claims for benefits. This provision will be in effect between January 1, 2024, and January 1, 2029.

Workplace Solutions

While we have no doubt you can channel your inner Kate McCallister to get the family to the airport on time, you don’t want to leave for vacation only to realize you left your work family members behind to their own devices. Use this checklist now as the basis for your year-end updates, and don’t hesitate to reach out to your favorite Seyfarth counselor with any questions and to make sure you’re on track.

Edited by: Cathy Feldman and Coby Turner