2024 California Legal Updates: Watch the Replay

[Chantelle Egan] (0:15 - 18:23)
Hello and welcome to Medina McKelvey's webinar of all the updates of 2024 that impact California employers. I'm just going to give everyone a couple of a minute or so to to filter in from the waiting room and then we'll get started with my colleague Asha and myself, Chantelle Egan. Hello, welcome all.

My name is Chantelle Egan. I'm a partner here at Medina McKelvey. I head up our Advice and Counsel Department and I'm joined here today by my colleague Asha Lopez.

And today we're going to be walking through some of the new additions that are coming your way in 2024 that are impacting California employers within employment law. We're also going to spend some time today really flagging for you what are those things that are going to really impact policies that you have in place as well as practices. And so that you're hopefully at the end of this webinar will feel armed with the knowledge that you need in order to tackle 2024 new compliance successfully.

A little bit about my colleague Asha. Asha has just joined Medina McKelvey. We are so thrilled to have her.

She has been an attorney for seven years. She actually started her career in the California State Capitol drafting bills and lobbying bills. So if you're with any of these new laws though, you don't need to blame her for these ones.

She's since moved on and has been an employment litigator for the last three years and we're so happy to have her with us. And today she's going to be talking about some of these additions as well as myself. So let's get right into it in terms of what it is that is changing because there's quite a bit that we're going to be covering.

As we go through this presentation, feel free to use the Q\&A function to post any questions that you may have. We'll do our best to answer the questions. Some of them we may be able to tackle live as well as both Asha and I are willing to stay on for a little bit after the webinar to go through some of these questions.

And then of course if we run out of time we'll circle back with you so that we make sure that all your questions are answered. So once again use the Q\&A function, not the chat. It can be a little bit confusing because we are in Zoom, so use the Q\&A function.

Thank you for that. So one of the big changes in 2024 is an increase in paid sick leave. So for ages we've been looking at three days as our paid sick leave window on an annual basis.

Well starting January 1 those numbers increase and so on an annual basis it is now 40 hours or five days of paid sick leave. Importantly as the law is drafted it could be interpreted that that 40 hours versus five days it's a whichever is greater. So if you have somebody for example that's typically working a 10-hour shift their five days is going to be longer than 40 hours and you should be providing them that greater amount.

Additionally for those of you that are adopting the traditional accrual method which is one hour for every 30 hours work, luckily that hasn't changed, the cap is going to be increased. So now that threshold at which point an employee stops accruing paid sick leave will be 80 hours or 10 days and that's up from 48 hours and six days. And this is an important change because for those of you that are doing accrual as the methodology that you're using, and I would say most employers are, for those of you that are also tackling local ordinances such as San Francisco, Santa Monica, there's a plethora of them throughout the state, this cap threshold is more generous than any of those local ordinances.

So if you are complying with state law and having the threshold be 80 hours 10 days that means that you are by default complying with the local ordinance. And I want to emphasize that that's a little bit different though if you're front loading. So under the state law if you're front loading then you're going to be doing 40 hours and five days.

In essence it's this is how much is a permissible use in the year so if you're front loading and for those of you that need a reminder of what that means, that is instead of doing a traditional accrual method you just say all right it's the beginning of the year and that could be January 1, that could be another 12-month cycle that you adopt, you say I'm just giving you all the sick leave that is permissible for you to use during the year and I'm giving it to you at the front of the year.

And you have all year with the ability to use it, however at the start of the next year it doesn't carry over you just get a new front loaded amount. For those of you that are balancing local jurisdictions this front loading method may not check all the boxes for you. So for example Santa Monica has a 72-hour requirement so if you're front loading and you're in Santa Monica you still need to comply with that local ordinance.

So even though this does you know include some preemptions with local ordinances that are actually baked into the law as well as just as a practical matter, that there tends to be that hopefully we'll have a more universal practice here throughout the state. For those of you that are using front load methodology then you need to be very cognizant of what the local ordinance is and whether or not you're actually complying with both the state and the local requirement. Additionally it's worthwhile to mention that if you're using an alternative accrual method, so you're still doing accrual but you're not doing one hour for every 30 hours worked, then there's certain thresholds that have to be met as for new employees.

And in particular when you have a new employee by the 120th day then they need to have 24 hours of sick in their bank and by the 200th day they need 40 hours. Importantly this is a calendar day not a working day. So if somebody that's working let's say part-time they're only working a couple days a week, when we're looking at these thresholds we're looking at all the days in the year that they're not working as well in order to meet those thresholds.

So as a general matter as like a pro tip it's typically easier if you're using an accrual method to stick with the one hour for every 30 hours work. And we just got a question about you know a variable schedule. We probably are going to get some guidance from the state on how to handle this.

I think the key thing here is to be as generous as possible and the threshold is that they're supposed to be receiving whatever gives them the most amount of paid sick days off. So that should be your guiding post. And so the key thing here too is if you have somebody with a really short week, so you know let's say you have somebody working four days a week or they're working you know two days a week, that they still have a 40 hour threshold even though you know maybe they're typical days or they typically work a short day of four hours in a day.

They're going to still have a 40 hour threshold as if they're working a traditional full-time schedule. All right so I'm just marking some of my... And then if we move over towards reproductive loss.

So some of you may remember from last year that we have a new bereavement leave. This is really an extension of that bereavement leave. It's really kind of in some ways I mean there's so many similarities between the law in terms of the availability of the time and it really is kind of almost a nod to the fact that those individuals that are experiencing reproductive loss that they too need time off to potentially grieve.

So the spirit of the law is very similar but there's some in very like there's some intrinsic differences that I want to walk you through. So for those of you that have at least five employees this law is triggered and what this means was when someone experienced as a reproductive loss they can take five days off and these days do not need to be in a row and these but they must be taken within three months of the event. Or for folks that had a related leave and I'll kind of walk through that in a second taken after three months after that.

And this time off would be unpaid. So first let's talk about what reproductive loss is. It's actually a very very kind of large umbrella.

So you know we have a you know miscarriage or things of that nature but it also applies in the example of a failed surrogacy. So that's everything from a dissolution or a breach of a surrogacy contract or a failed embryo transfer to a surrogate. And this also applies if this applies to who would be the ultimate parent after the birth or after the child is is provided to the family.

So this is not something that is limited to the birth parent but rather if you are a a parent and you're the mother of your child experiences a loss and you're that partner and you would ultimately be the parent when a child is born you're also going to be able to use this particular benefit or leave. And it also includes things that if you have a adoption and a failed adoption that would be a reproductive loss. As well as if you have you know in vitro or some other kind of assisted reproduction and you have a unsuccessful embryo transfer that's considered a loss.

So for example if you are doing egg gathering in preparation for an embryo transfer that's not going to be involved but if the transfer itself is unsuccessful then we have a reproductive loss that would trigger this loss. And so part of the reason that when we talk about this three-month window is that it has two potential start times. One as I said earlier is right when the event occurs.

So let's look at like a miscarriage for example. A miscarriage for a non-birth parent that would start right at the time of the miscarriage. A miscarriage for a miscarriage for the birth parent there's a potential that that person that experienced the miscarriage may have other leave that they are eligible for first.

So for example perhaps there is some type of medical recovery that needs to happen and they need to be on disability leave. Then if that's the case it's once their disability leave is expired then at that point the three months for them to take their reproductive loss leave that three month it is triggered. Another thing too to think about being we have this very kind of broad definition of reproductive loss is that there could be a situation where an individual experiences more than one reproductive loss in a year.

And in that particular situation cumulatively you can take up to 20 days. So in as a practical matter it means that you can really exercise about four reproductive loss events. You can exercise leave for four reproductive loss events in a 12-month span.

Last but not least because this is unpaid people can use not only you know PTO but they also can use their eligible sick time which as we just talked about has now increased. Another thing that's on the horizon is cannabis use and testing. Interestingly this law was actually put on the books back in 2022 but we were given a really really long runway for when it became effective.

So this law becomes effective in January 1 of 2024. And as a big picture look this really is for those of you that are doing any type of drug testing this is going to change the way that you can do drug testing. And in short what it means is that when you are doing drug screening the screening has to be designed to make sure that it's not testing for non-psychoactive cannabis in hair, blood, urine, and body fluids.

So another way of thinking about this in really basic terms is you know cannabis can stay in someone's system for a very long time even after the effects of the drug have gone through their system. So your test needs to it to the extent you're using a test it needs to make sure that it's not just testing if you have cannabis in your system generally but that that psychoactive nature of it in essence like the piece of it that's that makes you high that is what is testing. Is this person high in the moment in the most basic way of saying this.

And additionally it really carves out that while this has already been part of the law that we need to now make sure that employers know that they can't discriminate against individuals that are engaging in off-duty use of cannabis or cannabis products. Because in essence think of it as this way of like it's cannabis is really now due to the legality of it in in California kind of falling into that same camp as as alcohol is a way to kind of get your head around it. Likewise when an employer is requesting information from a potential applicant they can't talk about prior cannabis use that is also restricted.

So anytime that you're doing any kind of hiring termination or really changing any term and condition of employment you need to ensure that somebody's off-duty cannabis use assuming that that they're not experiencing the the psychoactive nature of cannabis while they are at the workplace is not is is not something that is you're being tested for or you're making employment decisions on. As I as with this and with all the other things we've just talked about this all requires handbook updates. So both paid sick reproductive loss and for those of you that have any kind of drug testing policies or practices this certainly requires that you update your handbook to be in compliance ideally prior to January 1 and if you can't do that January 1 being the law does go into effect then just I recommend that you do it as soon as possible.

It is worth mentioning that the two things that need kind of a look-see other than your handbooks is really making sure that you are looking at your onboarding documents to ensure that there is nothing in there where you could be asking about someone's cannabis use and in particular in the onboarding documents that second thing you need to look at is any kind of background check clearance materials that you have just make sure that it's in compliance with these updated laws.

So in addition to your handbook for this new law we need to make sure that your onboarding documents are in in good shape. There are exemptions to this not surprising some of you may be you know familiar with you know DOT requirements. The big picture in terms of where these exemption are is you know not surprise surprisingly it's if there's a state or federal law regarding applicants or employees requiring to be tested for drugs and have and have a more broad testing standard then those laws whether they are state or federal will trump this particular cannabis use testing and we're really like the perfect example of that is you know somebody who is in the trucking industry and you DOT has very strict laws about you know spot checked and spot checks and things like that. Additionally those that are required to have any kind of federal background investigation or security clearance they're also exempted from this law and there is also a carve out for employees or the building in the building or construction trades and interestingly you know this is an undefined term what trades is so for those of you that are in those particular industries it's definitely worth talking to your lawyer about whether or not that applies to your entire workforce or just the folks that are performing you know you know you know your carpenters your plumbers things of that nature or they're actually doing the construction themselves whether it just applies to them that's going to be a risk assessment that you're going to want to talk to your lawyer about. So with that I'm going to pass it over to Asha.

[Asha Lopez] (18:24 - 24:42)
Hello okay so I get the fun non-compete agreements so you know just as you know like the foundational root of like laws in California just like related to non-compete agreements is just that people should be able to freely engage in just employment legal employment opportunities so with that these new bills SB 699 and AB 1076 they go a little bit further they basically codify this even more significantly. SB 699 makes any in contract with an any contract with a non-compete provision null and void regardless of where it was signed.

This is significant because California you know we already know like they have non-compete agreements that are already non-enforceable with few exceptions but this instead is saying that regardless of where this agreement was originally signed like in another state you it's no longer valid in California. So for example if you have an employee that signed a non-complete agreement in Mississippi and they later transfer to California they are no longer beholden to the terms of the Mississippi agreement. While the non-compete agreement might have been enforceable in California it is no longer valid in California by way of that employee relocating to California.

AB 1076 also then requires an affirmative notification that that previous non-compete agreement is no longer enforceable. So let's go back to that Mississippi employee like not only is that provision no longer valid but you as the employer have to inform the employee that the provision is no longer valid. So just kind of be aware that the failure to do so could result in a violation of the of California's unfair competition laws.

We suggest that like if you're aware of an employee like relocating to California and you do have like this provision in an employee personnel file that you document that the provision is void and no longer enforceable. I know that's hard because you're like well how do I know this could be 10 years ago but just if you can try. Additionally it it's unclear but these laws they might be challenged in federal court as just kind of the state of California is voiding legal contracts simply due to an employee's relocation.

However just out of an abundance of caution we suggest that you comply with current law. Also just there's some rumblings out there that under the Biden administration they're talking about also possibly banning non-competes. It's unclear if there's an appetite but it's just something to kind of keep your eye on.

So this next one SB 497 it creates a rebuttable presumption of retaliation if an adverse action is taken against an employee within 90 days of the employee engaging in certain activities. Just to clarify an adverse employment action it includes like demotions suspensions and discharges within 90 days of employee making like certain complaints. These complaints can be a missed bill period or rest period or equal pay violations which can be them saying you know I'm not getting paid as much as my peer.

The complaint does not have to be an actual filing it can be written or oral. So you know a lot of people don't understand but just that conversation hey I don't like that so-and-so is making more money than me could potentially be under one of these complaints. This law is also significant because it now means that if those complaints do happen within those 90 days and you do engage in an adverse action against the employee you're going to have to the employer is going to have to rebut the presumption of retaliation.

So with that in mind just out of a bunch of caution we say that to the extent HR procedures are in place make sure that you've like added complaints to any potential checklist like when you're moving forward with an adverse action of some sort. You know that way you just also have complaint like okay this time they did complain on this day and see if it's kind in that 90-day window. Additionally it also expands the penalties under the whistleblower penalties.

It used to be that you know it was $10,000 per violation under the new law it is now $10,000 per employee up to $10,000 per employee. Okay so SB 553 this basically says that by July 1st 2024 it requires most employers to implement a written workplace violence prevention plan that is easily accessible to employees. This bill excludes employers that are already covered like under violence prevention and health care teleworkers outside of the employer's control and work locations that are not open to the to the public and have less than 10 employees.

Just so you know workplace defined violence is defined as any act of violence or threat of violence that occurs in the place of employment. This includes oral and written threats of violence and incidents involving firearms or dangerous weapons regardless of whether anyone is injured. The plan must be in writing and easily accessible to all employees.

Some of the key things for the plan include procedures for responding to workplace violence, ensuring employee compliance with the plan, identifying and evaluating workplace risk factors. Also this bill has a log and records retention requirement. Employers are required to log every workplace violence incident and retain the records for five years.

So it's just you know and it's a very broad definition right so whatever little incident possibly you know is happening in the workplace not only do you have to document it but you have to keep it for five years. Additionally this bill also allows union representatives to seek a temporary restraining order on behalf of an employee before it was just the employer now it can be the union rep. The employee can also opt out of being named in the TRO and the employer can still pursue it.

[Chantelle Egan] (24:44 - 39:48)
Okay so there's also been some changes to minimum wage and I just want to say before I go into this like those of you I'm so excited to see the Q\&A it's exploding. I was trying to quickly read through them while Asha was talking and hopefully we'll get to all your questions. You guys are asking some really really great ones but I think probably we'll just try to table them to the end to the extent we don't haven't already haven't already covered them.

So the state minimum wage is going up to $16 an hour starting January 1 and I think the important thing to kind of remember here as we go into kind of just generally speaking about the state minimum wage is that keep in mind that there's also quite a few local minimum wage ordinances. So if with the $16 an hour the where that really comes into play is if not only if you have an hourly worker and you don't have a local jurisdiction that has a higher minimum wage you know that's what obviously what you have to pay. But the other thing that is important to kind of think about is for those of you that have exempt employees you also need to have a minimum salary basis and that's based on a full-time employee making substantially more than six if they were to do the math substantially more than than $16 an hour and remembering off the cuff I believe it's 1.5 times but don't quote me on that one because I'm pulling that from the memory bank. But I want to really caution everyone here in California to be thinking about local ordinances because there are a ton of local ordinances that have a higher minimum wage.

So for example in San Francisco it is over $18 right now. San Diego it's $16.85 and the other thing that's really tricky about local minimum wages is that some of them are on an annual cycle such as this January 1 and some of them are not. So for example both LA County and San Francisco they experience increases typically on July 1st.

So just something to be mindful make sure that you're paying your employees the exact amount that you need to be paying them. Additionally now we have you know two additional categories on the state level requiring certain employees to make an even higher minimum wage. And one of the ones that's really making big news is the fast food workers.

So what that means is that if someone is working in a fast food establishment how they define fast food establishment is something that has at least 60 locations nationally that have you know similar branding. So you know the classic you know that we the classic roadside fast food places that we all know know well Burger King, McDonald's, things of that nature but the threshold is 60. And so as the law is drafted it implies that for example if you're a franchisor and you don't have 60 locations under your belt you still need to comply with this comply with this law if you're connected with a network that has at least 60 fast food establishments.

And this increase happens on April 1st of this coming year and it means that if you are an employer of fast food workers you need to pay them $20 an hour. This amount is going to be increasing on an annual basis through 2029 and it's either going to be capped at 3.5 percent or based on the federal standard for urban wage earners. So it's really something like whichever is the lower amount is what is going to what is going to carry the day.

And so on an annual basis for those of you that are have fast food employees it's not going to be a set standard where we can perfectly give you a chart now it's going to be something that is calibrated on an annual basis. And that's going to be issued by something called the fast food council. And this council is going to be in existence through 2029 at which point it will sunset.

Now this law for those of you that are in this industry this space I want to make sure you know that it repeals the fast recovery act or rather the fast food recovery act which would have made the hourly wage $22 an hour. So that completely repeals that law and puts in this new structure where we're now starting at $20 an hour in this year and then it will increase on an annual basis through 2029. There are some important exemptions and I think the two that are really worth noting are if you're a fast food establishment that's located inside a grocery store.

So for example like a subway inside a grocery store then you and this and the subway is owned by the grocery store and it's these employees that work there are paid by the grocery store then this particular law is not going to apply. Likewise there's a carve out for bakeries. So if an establishment is baking bread and is actually selling the bread not you know baking bread so they can make sandwiches for example then there could be a carve out where they also do not need to comply with this new law even if they have the other trappings of a fast food establishment.

If you think you fall under one of these exemptions I certainly recommend you talk to a lawyer to determine whether or not you can safely not pay your employees the $20 an hour but follow the applicable minimum wage. Additionally there's been an increase for health care workers. There's quite a bit of range.

This is going to go into place on June 1st of this coming year and the range for this is between $18 and $23 an hour and frankly there's quite a bit of nuances. When we're looking at physician groups that have at least 25 plus physicians then it's going to start at $21 an hour in this year and then increase at two-year intervals so by 2028 employees will be making $25 an hour. Now if you're part of a large health system a physician group that's part of a large health system so you know let's say you're a Sutter or you're part of UCSF and those health systems have more than 10,000 workers or dialysis clinics then the structure is going to be different.

It's going to be starting you off at $23 in 2024 and by 2026 making $25 an hour. There's also a different standard for community clinics and that is a $21 start in 2024 going up to $25 in 2028 and then hospitals that have a mix of Medi-Cal and Medicare patients and are as well as rural independent hospitals they have a lower threshold of $18 an hour in 2024 and those are going to be annually increasing by 3.5 percent until it reaches $25 by 2023. So needless to say as I go through all those numbers there is quite a bit of nuance if in the healthcare space so once again certainly recommend that you you know communicate with your legal counsel to figure out what's applicable to you.

Now I want to make sure that you know we take a moment to kind of really think about like handbook revisions and updates. So this is for me a little bit of just speaking from the heart who says you know how many people are like they love handbooks? Raise your hand.

Now it's not maybe the most exciting topic but I can't emphasize enough how much routine cadence and maintenance of your handbook is really an essential component of both risk mitigation and legal compliance but also the flip side making sure that your employees and you know your HR team is really armed with what are the expectations and standards. And in a place like California I can't remember a year that didn't have new laws that changed at least one policy in the handbook. So how the typical cadence works if you know putting COVID aside when everything got turned on its head and we were making making laws that changed yesterday even though the law came out today the typical cadence is that the the bills that have been passed by the legislature here in California end up on our governor's desk by the end of September early October and is at that point the governor has to sign those particular bills and make them into law. And then most of the time the absolute earliest that the law will then go into place or become effective if you will is January 1. So the ideal time to be making handbook updates and reviewing your handbook is in this kind of like last quarter of the year so that you're ready to start fresh in January.

Of course this is something that we can help you with. Our philosophy is that it's really important that you have a base core handbook that is really solid which enables you to make small adjustments on an annual basis rather than each year reinventing the wheel to ensure that you have compliance. And then additionally this this book is just so important because this is the number one most important exhibit when you're in any type of litigation whether that is a big wage and hour class action whether that is you know someone's come forward with harassment or discrimination.

This is going to be your the exhibit that is front and center and needs to make sure it adequately reflects the law. So feel free to reach out to us and we can help you navigate this process whether it's like I need to start over I need to start fresh we haven't done a handbook in years or it's you know what we did this last year and I just want to make sure that we have a a good process in place happy to help. So now there's been quite a few questions and we want to make sure that we try to answer them as as best we can and and Asha and I will kind of triage the these questions.

There's a couple that I've noticed about some of the the topics that I covered and I want to encourage you as you kind of sit here to continue to look look at the Q\&A box fill fill out questions and then of course if there's anything that you just are like hmm I really have some questions that I'm I have to think about like I need to go talk to somebody feel free to send an email to us legalupdates at MedinaMcKelvey.com or of course you can always call our office line and one of our attorneys can speak with you.

I want to talk first when I was breezing through those questions and I want to talk first about just the kind of paid sick and reproductive loss when we're talking about doctor's notes because that was one of the questions that came up. So for paid sick you cannot ask for a doctor's note for someone exercising paid sick until it triggers over into something that it either you know there's it appears that there's been some kind of abuse so someone for example says they've been out sick but then you see them on social media at a giant scheme things of that nature or they've now you know used their annual maximum and it's now time to kick it over to FMLA CFRA things of that nature.

So how that's going to impact you on and from a practical perspective is that that threshold used to be three days because that was the most that you could take on an annual basis. Our reading of the statute is that it now likely is going to be five days until you can ask for a doctor's note because of this increase. Now for reproductive loss you may not ask for a doctor's note for that particular scenario so if somebody for example experiences a miscarriage you cannot ask for a doctor's note.

If somebody has a failed embryo transfer you cannot ask for a doctor's note it's written into the law. And there was another question about reproductive loss that I want to make sure we cover which was what if the employee is not the person who physically experiences the reproductive loss but rather it's their partner that doesn't work for you. So let's keep let's go with that miscarriage example.

So somebody's partner outside of work is experiences a miscarriage. You have to also give the leave to the employee even though the employee didn't experience the miscarriage because the employee under the rubric of the law experienced a reproductive loss because with the rubric of the law there's numerous nuances and like I said it's a really really wide range. So it's you know loss of surrogacy, failed embryo transfer, failed adoption, you know breach of contract for a surrogacy arrangement as well as you know a miscarriage or something of that nature.

The rubric for the law is was this person supposed to be a parent and because of some type of loss they are no longer going to be a parent. And so that would certainly include employees that physically did not experience the reproductive loss. So if that person is your employee and they are the non-birth parent but they've experienced reproductive loss then you just certainly do need to give them that time.

And if they take that time it's their choice whether or not to take it as unpaid or to use their available vacation and sick. You cannot require that they use vacation and sick in order to to use this time. I do encourage you to make sure that they know that that's available to them so that they can exercise that within their within their discretion.

Asha were there any questions that that you saw that we should that we should cover?

[Asha Lopez] (39:50 - 40:04)
I'm going through it now. Well one just to clarify this is California law. I know that was one question so everything that we're talking about is only applicable in California.

There's some cannabis questions.

[Chantelle Egan] (40:06 - 41:23)
Are you sure do you want to do you want to make there's so many questions that let's kind of work together trying to tackle them. One of the ones I did see about cannabis was what about people that work safety equipment. So you know I'll share with you one of the things that I was kind of musing over it's like okay what about somebody that is you know in the lumber industry and is up in a tree and has a giant chainsaw like is there a exemption there.

So I think the real key thing for you is that if you think that you're a there is not a carve out within this particular law for if you are using safety equipment that then it's going to you don't have to apply. Rather what you need to do is see if there is if it's outside the construction trade and building trade then it's going to be okay is there another law that warrants more aggressive testing that I can that I can apply and that's going to involve some you know unique analysis that's individualized to you. Is there something else that you saw Asha about cannabis?

So about cannabis you were saying you were saying you saw some questions about cannabis testing.

[Asha Lopez] (41:24 - 41:26)
Yeah I mean there's one of just the different methods.

[Chantelle Egan] (41:27 - 42:38)
Oh and say thank you Kimberly who commented two times the minimum wage. Thank you for for correcting me for my for my like the recesses of my brain. I appreciate it.

Thank you so much. And there you know there was also a question about the fast food locations in the 60. The question is it's nationally.

So you could have one location in California and 59 in other states and this law would apply. It is a national standard when we're actually counting up the 60. Looking just to see.

And for those of you that do have exempt employees it's now thanks again for Kimberly who put the math in the in the in the chat here rather than the Q\&A. It's 66,560 according to Kimberly's math. So thanks again Kimberly.

You're like I should have had you as a panelist. And that in order to have your minimum threshold.

[Asha Lopez] (42:39 - 43:07)
So one thing I'm seeing a lot just regarding the cannabis thing is like people asking what about like specific professions. And I think you kind of gave that caveat like there are certain like the DOT and all these things that do have it. I see one asking about medical and dental workers, mechanics.

You know Chantelle can probably talk more to that but you know I think this is where we would refer you to that specific industry and what those standards are. Yeah Chantelle. I agree.

[Chantelle Egan] (43:07 - 47:04)
Like I think that part of this is going to be very very nuanced. And so the question that you have to ask yourself if you have an existing drug policy is why do I have that policy? Is it because of a practice?

Is it because of a particular law that enabled you to do it? And frankly if you're not quite sure and you you're worried that this new law may apply and you don't want to make a change, it's all the more reason to talk to counsel to try to figure out if there's an exemption that you can trigger. And something else that just kind of came up that I think is really important that we talk about is handbooks and whether or not you know you should have your employees you know sign a handbook.

Without exception I can't think of a reason why you would not have your employees sign an acknowledgment of the handbook. And in my kind of way of thinking is that it's not enough to just say I got this handbook. There really needs to be in there a an acknowledgment that they've not only received it but they understand that it's their responsibility to review this handbook and to adhere to the policies.

And while it doesn't change their at-will employment status in essence like these are the rules of the game. And I know that if I want to play the game here and I want to be an employee here I need to follow these rules. This is incredibly important when you have somebody who then violates a policy.

Likewise it's also incredibly important when you're trying to educate people on how to come forward with complaints and concerns about policy violations. It's like well I didn't know that wasn't allowed. I didn't know that you didn't tolerate bullying.

But if it's in the promise to read it you're going to be in a much much better place. So I certainly recommend that you know that's that's something that you do. Additionally depending on what your workplace is it may be something that you want to publicize the updates.

Depending on if you think that it could be something that is like you know a benefit to your to your employees or something where even though it's legally required it's something that you really want to educate your employees about about their ability to exercise this benefit. I think reproductive loss is a really good example of that because it's going to you know hopefully impact a small portion of your population. Hopefully it's outside the norm.

However it really kind of can foster a culture of support and engagement and inclusivity that even though you have to do it because it's legally required and it really helps kind of bolster your culture. Speaking of reproductive rights I saw a question about you know surrogates. So as it's written I would think that if a surrogate experiences the loss so actual physical loss that would be an example of probably something that falls under this potentially.

If it is the breach of contract for example like they were going to enter into a contract to be a surrogate parent that would not qualify at all because they were not intended to be the actual parent. So in reality I think really when we like that's a kind of an unusual situation I think that more often than not it's probably going to be that the surrogate is really falling under additional leaves additional types of leaves such as like disability due to recovery from a loss or things of that nature because they don't intend to be the parent. So I would I need to take a closer look at the law but I would my instinct is probably they are excluded.

[Asha Lopez] (47:04 - 47:49)
And then I saw one question asking about the workplace violence prevention plans. Somebody asked if there would be a template available. There isn't one now we don't know anything about but we anticipate that how OSHA will give some sort of guidance regarding that.

So you know I think you know if we can we'll possibly post a link if it becomes available or anything because they tend to also just give guidance on things. Additionally there was another question asking about non-compete agreements. Are they different from NDAs?

Yes yes non-compete again they're not really common in California this is out of state but non-compete and Chantelle can also speak to this but it's basically you're not going to compete with the business whereas an NDA is you know secrets and other things within the business.

[Chantelle Egan] (47:50 - 52:20)
Yeah the the the way to kind of think about this new non-compete law is that non-competes have been impermissible in California for quite some time. And the the kind of philosophy behind this is that the state of California has come out and says we do not want to infringe on people's ability to work. And so unlike other states that say hey you know for the next six months a year you can't do this particular job or two years as a very general matter that's prohibited in California.

There are obviously some exceptions to that so if it's something that you think is appropriate a non-compete would be appropriate in your particular situation in California we should chat. But really what this law is saying I know you did this in another state but now you're here in California and we're not going to enforce those contracts. Another situation that came a question that came up was about the reproductive leave.

And the window here is is three months and the question is is like do they have to tell us that it happened right when it happened or they can they tell us retroactively. And the law doesn't really address that but I think from a from a practical matter as long as they're telling you within that three-month window then that that should be enough because they don't need a doctor's note to prove it and when they want to exercise the time as long as it's within the permissible three-month window then they should be permitted to exercise exercise that time. Looking to see if there's some other ones that we can tackle.

Oh so this is a little bit off topic but I think that this is kind of an interesting question. It's like all right well what's what's the update on arbitration agreements? So there has not been any new legislation regarding arbitration's permissibility in California.

As some of you may know there was a law that was that was passed and in essence has been nullified limiting the scope of the arbitration agreements in California for in the employment context. However there's been quite a bit of case law over the last year and a half two years regarding arbitration agreements and whether or not they are permissible including some federal case law that made it a lot more clear that having a compulsory arbitration agreement is as long as various other boxes are checked is something that could be defensible whereas that had been a little bit of an open question prior to that ninth circuit case that came out last year. And so the long and the short of it is that arbitration agreements are permissible. Having an arbitration agreement that is completely voluntary by the employees is going to put you in a much better place in in terms of its enforceability.

But involuntary ones meaning like you have to sign it are also permissible in certain circumstances. However because of this evolving case law the two things to keep in mind is that there is very specific language that needs to go into an arbitration agreement and this is certainly something that we can help you with. This is something that we have litigated that we have a template that we we've put before mediators and before the courts and have gotten the seal of approval that these are you know valid and enforceable.

And so we can help you in this regard to make sure that you have kind of all the bells and whistles. And then my second comment about that is you know the law is evolving in this space and if you have arbitration agreements this isn't something that you can just really sit on. It's something that you really need to be kind of plugged into into the evolving kind of nature of this of those types of agreements in California.

So we have a couple more minutes and so you know Asha we got a question that says you know employees should does it make sense to have them re-sign the handbook every time we update it? So what do you think about that there's just been an update. Do you think that they need to re-sign that as well?

[Asha Lopez] (52:21 - 52:21)
Yes.

[Chantelle Egan] (52:22 - 52:31)
And what should you do like do you have any tips about what you should do if somebody just says like I'm not going to sign the handbook. I'm not going to sign the acknowledgement.

[Asha Lopez] (52:32 - 52:46)
I wouldn't recommend you force it you know or recommendations. You know I yeah I wouldn't say you have to sign. Yeah I would encourage them it's an acknowledgement.

[Chantelle Egan] (52:48 - 58:22)
Chantelle. I think that it's worthwhile to have a discussion with them about why they won't sign because once again what I was saying earlier like this is the rules. Like why are you not willing to understand what our rules and expectations are?

Like it actually could be potentially a performance issue with the employee if they're refusing to acknowledge the handbook. I mean maybe they say like well I don't want to sign it because I want to read the whole thing and I don't want to sign it until then. It's like well super.

Like we'll check back how much time do you need to read it? How can I can I set aside time on your calendar? Do you want to read it cover to cover?

Like there's a way as Asha said you don't need to be like you need to sign this. That is not effective. One person's gonna say like you know I was forced.

But you want to make sure that you are removing any obstacles that are getting in the way of them signing it. And if they can't articulate obstacles that are getting in the way of the signing it then it really could be becoming a performance issue. Because this is somebody that is in essence unwilling to learn the rules of their employer.

Which could create a problem. For sure. And then there was also kind of a related question about you know an electronic acknowledgement.

Absolutely fine. There's been great case law in recent years that e-signatures are permissible. My only recommendation on that front, and this is simply because I've litigated this, it needs to be a secure e-signature with a proper audit trail.

So there's a multitude of platforms. Adobe has it. DocuSign has it.

Like I don't have a you know a preferred provider. But I have seen people that say like well it's an e-signature because they had the person like in a Word document type in their name. Like that involves a little bit too much ambiguity regarding whether or not this was an actual signature.

Who had access to type in the person's name. So you want to make sure that you're using something that really does a secured signature. But that's certainly something that you know you can do and frankly makes life easy.

But to kind of Asha's point that you don't want to force people. So if you're pushing out updates electronically and asking people to sign, you know keep tabs on whether or not people have signed it. And you may get quite a few people that haven't signed it right away because they want to take a time to like open it, look at it.

And if possible I even recommend that they have it so they have to open the document before they can sign it. They can't just like sign an email like yep I got it. I acknowledge it.

You really want that like an extra step in the electronic environment versus like doing an old school where you hand them that handbook and say okay I know you're going to read through this. It's your first day. And having them you know do a wet signature.

That said you know old school way works just fine. And you know if that's what your process is stick with it. And then there's one other question about handbooks and I think we'll leave with this.

I know some of you may have some questions that you haven't had answered but we certainly will look at all the questions and circle back with you. The question is, is an employer required to translate the handbook into different languages? And the short answer to that is yes.

And really what we're looking at is a 10% threshold. So if you have 10% of your population has a particular language then you're going to want to translate it into that language. And the way to kind of think about this where you're like what if I work somewhere and like you know there's a bunch of people that speak multiple languages.

Like you know it's either they're fluent in both Spanish and English. Like do I if they speak Spanish but they fluently speak English do I have to translate it? You think about what is the language they are using at work.

So for example I had an employer where people were able to speak English. They were required to speak English when they were communicating with customers. But their manager was engaging with them in Mandarin and so they were getting instructions in Mandarin.

So because of that I would argue that your safest bet is because they are receiving instruction and feedback in Mandarin as well as in English that you should have both options. And it should be made very clear to employees if they want something translated and ideally if you can present that to them in their language to say if you'd like this translated into insert non-English language we'd be happy to do so. That's a great acknowledgement especially if they say no I'm fine I you know I understand English it's it's great.

That's once again back to the evidence piece that's a great piece of evidence. So I just want to thank all of you and I are so thankful for you tuning in today as well as just your high engagement with all these questions. This has been a really great conversation and we hope to continue the conversation as time goes on.

Feel free to reach out to any of us whether it's through that legal updates email through our emails all our information is on the website and good luck with your legal compliance in 2024.