December 28, 2021
by Stephanie Chapa

Employment Answers – What’s New in ’22

As we enter another year, we brace for new employment laws for California employers. Always the bearer of your employment news, the following is a list of some of new employment laws for 2022.

SB 331 – Settlements and Nondisparagement Agreements

This bill expands the prohibition against using settlement agreements to prevent disclosure of information relating to sexual harassment and sexual assault. Now, the law prohibits such agreements from preventing disclosure of any form (not just sex) of harassment, discrimination, or retaliation. The law prohibits any provision in an employee’s separation or employment agreement that restricts the disclosure of information about unlawful workplace acts, and it requires that any provision that restricts an employee’s ability to disclose information related to conditions in the workplace include specific language about an employee’s right to disclose information about unlawful acts in the workplace. Lastly, the law expands what type of “agreements” are included in this prohibition. Any type of severance/separation agreement, agreement regarding raises or bonuses, and any agreement made as a condition of employment is now included.

SB 572 – Liens on Real Property

As of January 1, 2022, the Labor Commissioner can create a lien on real property to secure amounts due under any final decision, thereby expanding the potential peril the Labor Commissioner can cause to unlawful employers.

SB 606 – Enterprise-wide and Egregious Health and Safety Violations

SB 606 expands Cal/OSHA’s enforcement authorities, especially for companies with multiple locations. It allows Cal/OSHA to issue “enterprise-wide” violations for employers with more than one worksite, creating a rebuttable presumption that the violation is “enterprise-wide” if employer has a written policy or procedure that violates workplace health and safety laws, or Cal/OSHA “has evidence of a pattern or practice of the same violation … committed by that employer involving one or more of the employer’s worksites.” It also allows Cal/OSHA to deem a workplace violation “egregious” when the employer: (1) “intentionally … made no reasonable effort to eliminate the known violation”; (2) committed willful violations that “resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses”; or (3) committed willful violations resulting in “persistently high rates of worker injuries or illnesses”.

SB 807 – Records Retention and DFEH Enforcement

Beginning January 1, 2022, the records retention requirement for employers is extended from two years to four years, with specified extensions when a complaint is filed. Additionally, this bill extends the DFEH’s deadline to investigate and issue right-to-sue letter to two years.

AB 701 – Production Quotas in Warehouses

This bill requires a written description of each quota that an employee is required to meet, and it prevents quotas that violate (and allows for penalties for quotas that previously violated) rights to meal and rest periods or any occupational health and safety laws. This applies to employers who directly or through an agent employ OR exercise control over wages, hours or working conditions of either: (1) 100 or more employees at a single warehouse distribution center in California; OR (2) 1000 or more employees at one or more warehouse distribution centers in California. Of note, this law specifically excludes farm production warehousing and storage.

AB 73 – PPE for Ag Workers

AB 73 adds ““wildfire smoke event” to the list of “health emergency” events for which the Department of Public Health has established guidelines for procurement and distribution of PPE. Also, it makes agricultural workers “essential workers” for such an event. Therefore, agricultural workers must be provided with personal protective equipment for a “wildfire smoke event.” This law took effect September 27, 2021.

AB 654 – COVID-19 Exposure Notification

Effective October 6, 2021, this bill amends Labor Code section 6409.6, requiring employers to give notice of a COVID-19 outbreak (3 or more laboratory confirmed cased within a 2-week period) to the local public health agency within 48 hours or one business day (whichever is later). It also expands the exemptions to this requirement, mainly for medical and care facilities.
Not a Bill, But a BIG Case – Premiums for Meal and Rest Breaks On July 15, 2021, the California Supreme Court set new rule requiring that premiums for meal, rest, and recovery break violations be paid at the regular rate of pay (as is used for overtime, sick leave pay, and nondiscretionary bonuses). Previously, employers paid those premiums at the standard hourly rate. The court specifically held that this is retroactive, meaning employers who have paid substantial amounts in premiums over the last four years may want to consider true-up payments.

Questions about what to expect in 2022?

As always, we advise you to consult with your favorite employment law attorney should you have any questions or to get a more detailed briefing on any new laws. This article was originally produced for our email publication BMJ Employment Answers. Reach out to us if we can help or to be added to the email list. We wish you a happy and healthy 2022!

Diane CodernizBaker Manock & Jensen’s Employment Law Practice Group facilitated by partner Diane Coderniz who has extensive experience representing employers, in both the public and private sector, in a broad range of employment matters, including counseling employers on day-to-day issues, and litigating cases throughout the State of California.

This Legal Update / Bulletin is for educational purposes only as well as to give you general information and a general understanding of the law, not to provide specific legal advice. This update should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.