UPDATE 10/3/22: California Governor Newsom signed the following bills into law: SB 1162 (pay scale disclosures & reporting), AB 152 (extension of California Supplemental Sick Leave to 12/31/22), AB 1041 (expansion of designated persons under CFRA), AB 1949 (mandated bereavement leave).
On August 31, 2022, the California Legislature concluded its 2022 Legislative Session and passed several employment-related bills, including those related to pay disclosures and reporting, expansion of California Family Rights Act (CFRA) related to family leave and bereavement leave, and an extension of California Supplemental Sick Leave through the end of the calendar year.
Below is a summary of select employment-related bills that were passed during this last session.
New Pay Disclosure Requirements & Expansion of California Pay Data Reporting
On August 30, 2022, the California Legislature passed Senate Bill (SB) 1162, which requires certain employers to provide new pay disclosures and expands existing California pay data requirements. The new provisions will take effect on January 1, 2023.
New Pay Disclosure Requirements
SB1162 would require certain employers to provide pay scale information on job postings. If passed, California would join Colorado, New York state, and New York City in requiring pay scale disclosures on job postings.
The new disclosure requirements include the following requirements:
- All employers (no matter their size), upon request, must provide an employee or applicant the pay scale for the position in which the employee is currently employed or the position for which the applicant is applying.
- All employers must maintain records of job title and wage rate history for each employee while they are employed and for 3 years after the end of employment. These records must be made available for inspection by the Labor Commissioner.
- Employers with 15 or more employees must include the pay scale (i.e., salary or hourly wage range that the employer reasonably expects to pay for the position) for any job posting (the pay scale must be provided to 3rd parties that announce, post, or publish the job posting). SB1162 does not currently specify whether the requirement applies only to job postings for positions that could or will be performed in California.
SB1162 would also require the Labor Commissioner to investigate complaints of violations and provide the commissioner with the discretion to impose civil penalties for non-compliance. However, no penalty will apply for the 1st violation if an employer can demonstrate that all job postings have been since updated to include the pay scale. The bill also provides a private cause of action for individuals who are aggrieved from employer violations.
California Pay Data Requirements
Under the current law, employers who are subject to federal EEO-1 reporting (generally, private employers with 100 or more employees) and have at least 1 California-based employee, must submit certain pay and hours-worked data to the Department of Fair Employment and Housing (DFEH) annually by March 31st (the first report was due March 31, 2021). Existing law allows employers to comply with California’s reporting requirement by submitting a copy of their federal EEO-1 report to DFEH.
SB 1162 would change the existing pay data requirements to:
- Eliminate the ability for employers to submit an EEO-1 report in lieu of a California data report.
- Require employers that have 100 or more employees hired through labor contractors within the last year to submit a separate pay data report specifically for those employees.
- Require employers to provide additional data in the reporting, including the median and mean hourly rate for each combination of race, ethnicity, and sex within each job category.
- Eliminate the requirement for employers with multiple establishments to submit a consolidated report (each establishment, i.e., each “each economic unit producing goods and services,” will be required to submit a separate report).
- Revise the annual reporting deadline from March 31st to the 2nd Wednesday of May.
- Permit a court to impose a civil penalty of up to $100 per employee for failure to file a report and up to $200 per employee for any subsequent failure to file a report.
Extension of COVID-19 Supplemental Sick Leave to December 31, 2022
The California Legislature once again passed a bill that would extend COVID-19 Supplemental Sick Leave (“supplemental sick”) to the end of 2022 (these leave entitlements were set to expire on September 30, 2022). The extension would provide covered employees additional time to use existing supplemental sick leave entitlements, though it would not provide new leave entitlements/amounts. The extension will take effect immediately.
The reasons for which an employee can take supplemental sick leave are unchanged; however, the extension would allow employers to require a covered employee to submit a 2nd diagnostic test within 24 hours of a positive test result, and if the employee refuses to do so, allows an employer to deny the leave (existing supplement sick leave allows employers to deny leave if an employee refuses to submit documentation of a positive test result and allows employers to require a 2nd test after the 5th day of a positive test).
The latest supplemental sick leave entitlement that was passed (which will be further extended to December 31, 2022), provided covered employees with up to 40 hours of paid leave if they are unable to work or telework due to certain reasons related to COVID-19. Covered employees can also take up to an additional 40 hours of leave if they, or a family member they are caring for, tests positive for COVID-19. Covered employees are entitled to COVID-19 supplemental paid sick leave in addition to any paid sick leave available under the Healthy Workplace, Healthy Families Act of 2014.
As a reminder, employers are required to conspicuously display a supplemental sick leave poster provided by the Labor Commissioner’s Office in their workplaces. Employers can obtain an updated poster (with the extension to December 31, 2022) here.
For more on California Supplemental Sick Leave, see our prior blog, “California Renews COVID-19 Supplemental Sick Leave in 2022.”
Expansion of California Family Rights Act (CFRA): Expansion of Designated Persons & Unpaid Bereavement Leave
Expansion of “Family Member” to Include “Designated Persons”
California Assembly Bill (AB) 1041 expands the class of individuals for whom an eligible employee can take leave to care for under CFRA. As a reminder, CFRA currently requires employers with 5 or more employees to allow eligible employees to take up to 12 weeks (in any 12-month period) for the diagnosis, care, or treatment of an existing health condition, or preventative care for, an employee or an employee’s family member.
Effective January 1, 2023, AB1041 expands definition of the term “family member” to include any “designated person,” which is defined as any “individual related by blood or whose association with the employee is the equivalent of a family relationship.” An employer may limit an employee to one designated person per 12-month period and can allow the employee to identify the designated person at the time the employee requests leave.
Unpaid Bereavement Leave
California Assembly Bill (AB) 1949 would expand CFRA to make it unlawful for an employer to refuse a request by an eligible employee to take up to 5 days of bereavement leave upon the death of a family member (which is defined as a spouse, child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law). Though eligible employees would not be required to take the 5 days of bereavement leave consecutively, employees are required to complete the leave within 3 months of the date of death. The bereavement leave would be in addition to any current leave entitlements under CFRA.
The bill would apply to employers with 5 or more employees and employees would be eligible to request bereavement leave if employed for at least 30 days prior to the commencement of the leave.
Unless an employer’s existing policy provides otherwise, the bereavement leave may be unpaid; however, employees would be able to use other leave balances otherwise available to them (e.g., vacation, personal leave, accrued and available sick leave, or paid time off). Employers can also require employees to provide documentation of the death within 30 days of the 1st date of the leave.
Employer Next Steps
Employers with California employees may want to take a look at any current leave policies or job posting and amend them to comply with these legislative changes. In addition, employers should prepare to comply with the new pay data reporting requirements in 2023.
- Pay Scale Disclosure & Reporting: Senate Bill 1162
- Extension of Supplemental Sick Leave: Assembly Bill 152
- Expansion of Designated Persons: Assembly Bill 1041
- Bereavement Leave: Assembly Bill 1949
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