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October 18, 2023
Workplace Violence Prevention Plans Will Be Required for California Employers, and Related Changes to Restraining Order Laws Will Follow
UPDATE: In February 2024, the California Department of Industrial Relations’ Division of Occupational Safety and Health published a Fact Sheet and a Model Written Workplace Violence Prevention Plan for General Industry (non-healthcare settings) to assist employers in establishing a workplace violence prevention plan, pursuant to SB 553, by July 1, 2024.
On September 30, 2023, California enacted Senate Bill 553. The law will require nearly all California employers to implement a plan for workplace violence prevention.
Plan Requirements
By July 1, 2024, covered employers [1] must implement a workplace violence prevention plan. The plan must include, among other things:
For at least five years, employers also must retain certain records, including:
Workplace Violence Restraining Orders
Currently, California employers may seek restraining orders on behalf of employees when they have been victims of violence or credible threats of violence. Effective January 1, 2025, the California Code of Civil Procedure will be amended to reflect four changes to the current law.
First, the law will be expanded to allow for the granting of restraining orders on behalf of employees who are victims of harassment. “Harassment” is defined as “a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose.” The “course of conduct” must “be that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress.”
Second, the law will be expanded to permit collective bargaining representatives (not just employers) to seek a restraining order.
Third, the law will expressly ban restraining orders where such orders would prohibit protected speech or other activities, including speech or conduct protected by the National Labor Relations Act or Government Code sections that relate generally to union activity.
Fourth, the law will require that an employee on whose behalf a petition for a restraining order is being filed be given an opportunity to decline to be named in the petition.
California Expands Its Paid Sick Leave Law
On October 4, 2023, California enacted Senate Bill 616, expanding its Healthy Workplaces, Healthy Families Act of 2014
Existing law, with certain exceptions, entitles an employee to paid sick days for certain purposes if the employee works in California for the same employer for 30 or more days within a year from the commencement of employment. The new law extends these benefits to employees subject to a collective bargaining agreement.
Existing law authorizes an employer to use a different method to accrue paid leave as long as an employee has no fewer than 24 hours of accrued leave by the 120th calendar day of employment or each calendar year, or in each 12-month period. The new law requires, additionally, that an employee have no fewer than 40 hours of accrued sick leave or paid time off by the 200th calendar day of employment or each calendar year, or in each 12-month period.
Existing law requires accrued paid sick days to carry over to the following year of employment. Existing law, however, authorizes an employer to limit an employee’s use of accrued paid sick days to 24 hours or three days in each year of employment, calendar year, or 12-month period. The new law raises the employer’s authorized limitation on the use of carryover sick leave to 40 hours or five days in each year of employment.
Under existing law, an employer is not required to provide additional paid sick days if the employer has a paid leave or paid time off policy that is as generous as the benefits under California law. Existing law requires an employee to be eligible to earn at least three days or 24 hours of sick leave or paid time off within nine months of employment. Under the new law, employees must be eligible to earn at least five days or 40 hours of sick leave or paid time off within six months of employment.
Under existing law, an employer has no obligation to allow an employee’s total accrual of paid sick leave to exceed 48 hours or six days. The new law would increase those accrual thresholds to 80 hours or 10 days.
The new law will preempt any local ordinance with less generous leave requirements.
These changes are effective January 1, 2024.
California Bans Cannabis Inquiries
In case you missed it, under existing California law that becomes effective on January 1, 2024, it is unlawful under the Fair Employment and Housing Act for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, because of the person’s use of cannabis off the job and away from the workplace, except as specified. See Assembly Bill 2188.
On October 7, 2023, California enacted Senate Bill 700, which will make it unlawful for an employer to request information from an applicant for employment relating to the applicant’s prior use of cannabis. However, the law will not preempt state or federal laws that require an applicant to be tested for controlled substances. Employers also will not be prohibited from asking about an applicant’s criminal history if such inquiries are in compliance with state law.
This law also is effective on January 1, 2024.
Retaliation Claims Will Be Easier for Plead for California Employees
On October 8, 2023, California enacted Senate Bill 497, the Equal Pay and Anti-Retaliation Protection Act. The Act amends the California Labor Code and creates a rebuttable presumption of retaliation when an employer disciplines or discharges an employee within 90 days of certain protected activity.
To establish a prima facie claim (one that, upon initial examination, has sufficient evidence to proceed to trial or judgment) of retaliation under current California law, an employee must demonstrate that (1) the employee engaged in protected activity; (2) the employee suffered adverse employment action; and (3) a causal connection exists between the protected activity and the alleged adverse employment action.
The new law creates a rebuttable presumption (an assumption of fact or law – i.e., the prima facie elements of the employee’s claim will be assumed true) in favor of the employee if an employer takes adverse employment action against an employee within 90 days of the employee exercising rights under certain provisions of the Labor Code or under the Equal Pay Act. The presumption makes it easier for employees to establish retaliation claims.
Once the rebuttable presumption is established, the employer must articulate a legitimate, non-retaliatory reason for the adverse employment action. The ultimate burden of proof then shifts to the employee to prove that, despite the employer’s articulated reason, the conduct was, in fact, retaliatory.
The new law will become effective on January 1, 2024.
Employer Takeaways
The effective dates of these new laws will be here before you know it. Employers should seek counsel now to begin preparing a workplace violence prevention plan; to update screening and hiring policies and procedures, and train hiring managers and Human Resources personnel, on best screening and hiring practices, including not inquiring about cannabis use; to train managers and Human Resources personnel on appropriate progressive disciplinary steps and documentation to avoid retaliation claims, including rebuttable presumptions on such claims; and to update policies and payroll practices to address the expanded paid sick leave requirements.
The author of this article, Patricia Tsipras, is a member of the Bar of Pennsylvania. This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in California, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist. Always consult an attorney with specific legal issues.
[1] The law exempts the following from its requirements: (1) employers already covered by California’s existing workplace violence prevention standard for healthcare; (2) facilities operated by the Department of Corrections and Rehabilitation; (3) employers that are law enforcement agencies and in compliance with the Commission on Peace Officer Standards and Training Programs; (4) employees teleworking from a location of their choice that is not under the employer’s control; and (5) places of employment where there are fewer than 10 employees working at the place at any given time, that are not accessible to the public, and that are in compliance with the requirement to develop and maintain an Injury Illness Prevention Plan.
