News   /   January 3, 2022   /   ,

2022 Legal Update: Employment Laws and Laws of General Applicability to Public Agencies

The following laws were created or modified during the 2021 year and are already affecting public agencies or will affect public agencies in 2022 and beyond. If you have questions on any of these developments, contact your OMLO attorney or a member of the firm’s Municipal Practice Group or Labor and Employment Practice Group.

For Education Law updates pertaining to school districts, read OMLO’s 2022 Legal Update: Education Law.

Senate Bill 807

Maintaining personnel files. Senate Bill 807 (“SB 807”) updates employer requirements for maintaining and preserving personnel files and makes procedural changes to the Department of Fair Employment and Housing’s (“DFEH”) enforcement of civil rights and anti-discrimination laws.

Currently, Government Code section 12946(a) requires employers, as well as unions and employment agencies, to maintain and preserve any and all applications, personnel, membership or employment referral records and files for a minimum period of two years after the record is first created or received.

Effective January 1, 2022, SB 807 extends the minimum record-keeping period to four years. Employers will also be required to retain personnel files of applicants or terminated employees for a minimum of four years (instead of two years) after the date of the employment action taken. SB 807 thus aligns the personnel record-keeping requirements with the time period for employees to file an unlawful discrimination claim under The Fair Employment and Housing Act (FEHA), which is now four years. If an employer receives notice that a verified complaint has been filed with DFEH, employers must maintain all employee records and files must be preserved either (1) the matter reaches its ultimate resolution because the entire administrative and court dispute process has come to an end, or (2) the deadline for the employee to file a lawsuit has expired.[1]

In addition, SB 807 tolls the statute of limitations for filing a civil action based on specified civil rights complaints under investigation by DFEH until either: (1) DFEH files a civil action for the alleged violation; or (2) one year after the DFEH issues written notice to a complainant that it has closed its investigation without electing to file a civil action for the alleged violation. The tolling under option (2) applies retroactively, though it is not intended to revive claims that have already lapsed.[2]

SB 807 also authorizes DFEH to bring a civil action in any county to enforce the civil rights laws under its mandate if the civil action includes class or group allegations on behalf of DFEH and tolls the statute of limitations for DFEH to file such civil actions during any voluntary or mandatory referral to DFEH’s mediation program. Finally, AB 807 clarifies that when DFEH treats employment discrimination complaints as a class or group complaint, DFEH is required to issue a right-to-sue notice upon completion of its investigation, and not 2 years after the filing of the complaint.[3]

Senate Bill 270

See OMLO’s prior legal alert on SB 270, which amends Government Code section 3558 to create an enforcement mechanism for the Public Employee Communication Chapter (PECC) (Gov. Code § 3555, et seq.), under which public employers are required to provide the exclusive representative or recognized employee organization for the bargaining unit with certain contact and employment information of newly hired and existing unit members.

Senate Bill 331

Non-disclosure and non-disparagement agreements. In response to the “Me Too” movement, California enacted several laws prohibiting the use of non-disclosure provisions in settlement agreements used in lawsuits or complaints filed in an administrative agency action where the underlying claims were based upon sexual assault, sexual harassment, and workplace harassment or discrimination based on sex.[4] These laws, however, did not prevent non-disclosure provisions in settlement agreements involving harassment or discrimination claims based upon any other protected characteristic, e.g., race, age, religion, etc.

Settlement Agreements

Senate Bill 331 (“SB 331”) expands current law to prohibit non-disclosure provisions in settlement agreements for lawsuits and administrative complaints involving claims of harassment or discrimination in the workplace based on any protected characteristic. This means that settlement agreements used in cases or agency actions filed after January 1, 2022, that include claims of any type of workplace harassment or discrimination, not just those based on sex, can no longer include a provision that prevents or restricts the employee from disclosing the factual information underlying such claims.

Under SB 331, provisions shielding the identity of the claimant and facts which could lead to discovery of the claimant’s identity are still permitted, unless the government or a public official is a party to the settlement agreement.[5] Similarly, SB 331 continues to allow a settlement agreement provision precluding the disclosure of the amount paid.[6]

Non-Disparagement Agreements

In addition to restricting the use of non-disclosure provisions in settlement agreements, current law makes it an unlawful employment practice for an employer to require an employee to sign a release of a claim or right or to require the employee to sign a non-disparagement agreement or other documents that prohibits the employee from disclosing factual information about sexual harassment or related unlawful acts in the workplace in exchange for a raise, bonus, as a condition of employment or continued employment.

Effective January 1, 22, SB 331 further restricts the use of non-disparagement clauses in exchange for a raise or bonus, or as a condition of employment or continued employment to prohibit any provision that prevents an employee from disclosing information about any type of harassment or discrimination or other conduct that an employee reasonably believes is unlawful in the workplace unless the agreement includes the following language in substantial form: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”[7]

Separation Agreements

SB 331 also extends the requirements above related to non-disparagement provisions to apply to any agreement related to a current or former employee’s separation from employment.[8] Thus, beginning January 1, 2022, any separation agreement with a non-disparagement agreement that prohibits of information about any type of harassment or discrimination, or other unlawful workplace conduct must include the safe-harbor language above. In addition, such separation agreements must include: (1) notice of the employee of the employee’s right to consult an attorney, and (2) reasonable time (at least 5 business days) for the employee to consult with an attorney.[9] These restrictions do not apply to a negotiated agreement to resolve a claim that has been filed by an employee in court, before an administrative agency, in an alternative dispute resolution forum or through an employer’s internal complaint process.

An employee may sign a separation agreement before the end of the 5-business day period, but the acceptance of the separation terms must be “knowing and voluntary” and cannot be the result of improper inducement by the employer. An employer may still include a general release or a waiver of all claims in an agreement related to an employee’s separation from employment if such release or waiver is otherwise lawful and valid.[10]

For purposes of SB 331, “information about unlawful acts in the workplace” as referenced includes, but is not limited to, information “pertaining to harassment or discrimination or any other conduct the employee has reasonable cause to believe is unlawful.”[11]

Assembly Bill 1033

California Family Rights Act. Assembly Bill 1033 expands the definition of “parents” under the California Family Rights Act (“CFRA”) to include parents-in-law of the employee.[12] As a result, employees may now take CFRA leave to care for a parent-in-law.

Senate Bill 606

Workplace safety violations. Senate Bill 606 (“SB 606”) amends the Labor Code to create two new categories of Cal/OSHA employer violations. Specifically, “enterprise-wide” violations and “egregious” violations.

If an employer has multiple worksites, new Labor Code section 6317(b) establishes a rebuttable presumption that a violation is “enterprise-wide” if Cal/OSHA finds either of the following “is true”:

  • The employer has a written policy or procedure that does violates Health and Safety Code section 25910 or Cal/OSHA standard, rule, order, or regulation.
  • Cal/OSHA has evidence of a pattern or practice of the same violation(s) being committed by the employer involving more than one worksite.

A written policy will not form the basis for an enterprise-wide citation if it violates an emergency regulation adopted or amended within the last 30 days from the date of the Cal/OSHA Board votes to adopt or amend the emergency regulation.[13] Should an enterprise-wide violation be found, Cal/OSHA may issue citations and remedial orders for the entire enterprise of the employer, including work locations where no specific violation was found.

SB 606 also added Labor Code section 6317.8, which provides that an “egregious violation” may be found if Cal/OSHA finds at least one of the following “is true”:

  • The employer, intentionally, through conscious, voluntary action or inaction, made no reasonable effort to eliminate the known violation.
  • The violations resulted in worker fatalities, a worksite catastrophe, or a large number of injuries or illnesses. “Catastrophe” means the inpatient hospitalization, regardless of duration, of three or more employees resulting from an injury, illness, or exposure caused by a workplace hazard or condition.
  • The violations resulted in persistently high rates of worker injuries or illnesses.
  • The employer has an extensive history of prior violations of this part.
  • The employer has intentionally disregarded their health and safety responsibilities.
  • The employer’s conduct, taken as a whole, amounts to clear bad faith in the performance of their duties under this part.
  • The employer has committed a large number of violations so as to significantly undermine the effectiveness of any safety and health program that may be in place.[14]

Conduct underlying an “egregious” violation must have occurred within five years before a citation is issued, and the determination that a violation is egregious remains in effect for five years.[15] In addition, each employee exposed to an egregious violation will be considered a separate violation for purposes of the issuance of fines and penalties.[16]

SB 606 also grants Cal/OSHA authority to issue a subpoena during investigations “if the employer or the related employer entity fails to promptly provide the requested information, and may enforce the subpoena if the employer or the related employer entity fails to provide the requested information within a reasonable period of time.”[17]

Assembly Bill 654

COVID-19 workplace exposure notifications. In 2020, as part of its response to the ongoing COVID-19 pandemic, the California Legislature enacted Assembly Bill 685, which imposed notification and reporting requirements related to COVID-19 exposures in the workplace. Assembly Bill 654 (“AB 654”) clarifies or modifies some of these requirements and provides updated definitions for certain key terms.

COVID-19 Notice Requirements

Currently, employers have a duty to notify employees within one business day of a potential exposure to COVID-19 if they were on the premises at the same worksite as a “qualifying individual within the infectious period.”[18] The term “qualifying individual” means any person who has any of the following: (1) a laboratory-confirmed case of COVID–19, as defined by the State Department of Public Health; (2) a positive COVID-19 diagnosis from a licensed health care provider; or (3) a COVID-19 related order to isolate provided by a public health official.

AB 654 does not alter the notice requirements above and does not modify the definition of qualifying individual. AB 654 does, however, clarify when employers are required to notify employee representatives of a COVID-19 exposure, and under what circumstances employers are required to give notice of available COVID-19-related benefits and the employer’s plan for cleaning and disinfecting.

Specifically, AB 654 clarifies that an employer must provide notice to employee representatives of both the qualifying individual and employees who had “close contact” with the qualifying individual.[19] AB 654 also clarifies that employers are required to notify all employees who were “on the premises at the same worksite as the qualifying individual within the infectious period” and the employee representative(s) of available COVID-19 related benefits.[20] This notice must also include the anti-retaliation and anti-discrimination protections for the employee.

In addition, AB 654 clarifies that employers need only provide notice of the employer’s cleaning and disinfection plan to employees, their employee representative(s), and the employers of any subcontractors who were on the premises at the same worksite as the qualifying individual during the infectious period.[21] Previously, notice of an employer’s disinfection and cleaning protocols was required for all employees, regardless if they were on site, or potentially exposed. AB 64 expressly provides that cleaning and disinfection protocols must comply with guidelines from the federal Centers for Disease Control and Cal/OSHA’s emergency COVID-19 Prevention Program.

Updated Definitions

AB 654 also updated certain definitions related including:

  • “Close contact” is added as a defined term and means being within six (6) feet of a COVID-19 case for more than 15 minutes or more in any 24-hour period within or overlapping with the high-risk exposure period, regardless of face coverings.
  • “High-risk exposure period” means either:
    • For individuals with COVID-19 symptoms, 2 days before an individual first developed symptoms until 10 days after the symptoms first surfaced, and until the individual has gone 24 hours without a fever, without the use of medication.
    • For individuals who test positive without exhibiting any symptoms, the “high risk exposure period” is from 2 days before until 10 days after the first positive test.
  • “Worksite” now specifically excludes locations where an employee worked by themselves without exposure to other employees, as well as an employee’s remote work location, such as their residence. In a multiworksite environment, employers need only notify employees who were at the same worksite as the qualified individual.[22]

Outbreak Reporting

AB 654 also revises the timeframe for reporting COVID-19 outbreaks to local public health authorities, which is now 48 hours, to one business day or 48 hours, whichever is later. Additionally, AB 654 provides that an employer does not need to provide notice to public health officials on weekends and holidays. AB 654 did not modify the definition of “outbreak,” which is three or more probable or confirmed cases reported in a workplace within a 14-day period.

AB 654 took effect October 5, 2021, and will sunset on January 1, 2023.

Senate Bill 639

Licensing for disabled employees. Senate Bill 639 (“SB 639”) ends California’s practice of issuing licenses allowing for disabled employees to be paid less than the legal minimum wage. Labor Code section 1191 currently permits allowed the Industrial Welfare Commission to issue a special license to an employee with a mental or physical disability authorizing him or her for less than wage minimum wage.

SB 639 provides that no new licenses may be issued after January 1, 2022.[23] The State Council on Developmental Disabilities is tasked with developing a multiyear phaseout plan by January 1, 2023, to pay any employee with a disability no less than the applicable minimum wage by January 1, 2025.[24] Following the release of the plan, a license may only be renewed for existing license holders who meet the benchmarks established in the development plan.[25]

Assembly Bill 237

Unfair practices in public employment. Assembly Bill 237 (“AB 237”) enacts the Public Employee Health Protection Act, which prohibits employers from removing or suspending medical coverage for employees because of the employee’s participation in an authorized strike.[26] Specifically, AB 237 makes it an unfair labor practice for covered public employers to:

  • Fail or refuse to maintain and pay for continued health care coverage for an enrolled employee or their dependents for the duration of the employee’s participation in an authorized strike,
  • Fail to collect and remit the employee’s contributions to the health or medical coverage, or
  • Maintain any policy purporting to authorize any action prohibited by this section or otherwise threaten employees’ continued access to healthcare during or as a result of employee’s participation in a strike.[27]

The term “authorized strike” includes “any strike sanctioned by the central labor council or the membership of an employee organization that represents the striking employees, or one that is engaged in by unrepresented employees.”[28] AB 237 mandates that any health or medical care premiums and out-of-pocket expenses paid by the employee as a result of an employer’s violation of the requirement to maintain medical coverage during an authorized must be reimbursed by the employer, along with any other equitable adjustments.[29] The Public Employment Relations Board has jurisdiction over any violation of these provisions as an unfair practice.[30]

Senate Bill 657

Information posting requirements. Senate Bill 657 adds Section 1207 to the Labor Code, which provides that when an employer is required to physically post information at an employer’s place of business, the employer may also distribute the information to employees via email with the relevant document(s) attached.[31] Email distribution of such information, however, does not alter the employer’s obligation to physically display the required posting.

Senate Bill 274

Brown Act: emails. Under the Brown Act, any person may request that a copy of a legislative body’s meeting agenda or agenda packet documents be mailed to them. Senate Bill 274 amends Government Code section 54954.1 to provide that, if a person requests to have meeting agendas or agenda packet materials delivered by email, local agencies that have a website must either email the requester a copy of these items, or a website link to the items. If a local agency determines it is technologically infeasible to email the agenda and associated documents or a website link thereto, a copy of the agenda or a website link to the agenda and agenda packet must be sent to the requester via regular mail.

Senate Bill 501

Government Claims Act statute of limitations tolling. The Government Claims Act establishes required procedures for filing certain types of claims against a public agency. For claims relating to a cause of action for injury to a person or to personal property, the Government Claims Act requires the claim be presented no later than six (6) months after the accrual of the cause of action.[32]

When a claim for death or for injury to a person or personal property is not presented within the six-month statute of limitations period, a written application may be made to a public entity for leave to present the claim.[33] Senate Bill 501 (“SB 501”) expands the circumstances under which a public entity is required to grant an application for leave to present a claim for after the six-month period to include when the following is applicable:

  • The person who sustained the alleged injury, damage, or loss was a minor during any of the time specified for the presentation of the claim, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first.
  • The person who sustained the alleged injury, damage, or loss was physically or mentally incapacitated during any of the time specified for the presentation of the claim and by reason of that disability failed to present a claim during that time, provided the application is presented within six months of the person no longer being physically or mentally incapacitated, or a year after the claim accrues, whichever occurs first.[34]

If the public entity denies the application for leave, the individual may petition the superior court for an order relieving the petitioner from the requirements of of Government Code section 945.4.[35]

OMLO will continue to monitor these developments carefully. This article is for informational purposes only and only provides an overview of specific developments. It is not intended to be, and should not be construed as, legal advice for any particular fact situation. For actual legal advice and specifics pertaining to your governmental entity, please contact your OMLO attorney for assistance.

[1] Gov. Code § 12946(b).

[2] Gov. Code § 12960(f).

[3] Gov. Code § 12965.

[4] Code Civ. Proc. § 1001(a).

[5] Code Civ. Proc. § 1001(c).

[6] Code Civ. Proc. § 1001(e).

[7] Gov. Code § 12964.5(a).

[8] Gov. Code § 12964.5(b)(1)(A)-(B).

[9] Gov. Code § 12964.5(b)(1)(B)(4).

[10] Gov. Code § 12964.5(b)(3).

[11] Gov. Code § 12964.5(c).

[12] Gov. Code § 12945.2(b)(10).

[13] Lab. Code § 6317(b)(A).

[14] Lab. Code § 6317.8(b).

[15] Lab. Code § 6317.8(c).

[16] Lab. Code § 6317.8(d).

[17] Lab. Code § 6317.9

[18] Lab. Code § 6409.6(a)(1).

[19] Lab. Code § 6409.6(a)(2)

[20] Lab. Code § 6409.6(a)(2). COVID-19 related benefits include those the employee may be entitled under applicable federal, state, or local laws, including, but not limited to, workers’ compensation, as well as options for exposed employees, including COVID-19 related leave, employee sick leave, state-mandated leave, supplemental sick leave, or negotiated leave provisions.

[21] Lab. Code § 6409.6(a)(3).

[22] Lab. Code § 6409.6.

[23] Lab. Code § 1191(a).

[24] Lab. Code § 1119(c).

[25] Lab. Code § 1191(a).

[26] Gov. Code §§ 3140 – 3142.

[27] Gov. Code § 3142(a).

[28] Gov. Code § 3142(a)/

[29] Gov. Code § 3142(b).

[30] Gov. Code § 3142(c).

[31] Lab. Code § 1207.

[32] Gov. Code § 911.2(a).

[33] Gov. Code § 911.4(a).

[34] Gov. Code § 911.6(b).

[35] Gov. Code § 946.6(a).

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