4 major California employment law changes for 2023

California employers will see a number of changes affecting human resources in the new year.

Major themes include compensation and leave, but employers also will need to note legislation that adds new retaliation protections for workers, attorneys told HR Dive.

Pay transparency

SB 1162 takes effect the first of the year and requires employers with 15 or more employees to provide pay ranges when they announce, post, publish or otherwise make known an available job.

Ben Ebbink, partner at Fisher & Phillips LLC, said this is the bill he’s hearing most about. “I’m fielding 15 to 20 questions a day from clients on that,” he said, because the statute is “not super extensive, and doesn’t have guidance or FAQs.”

For employers with structured pay systems, “it’s going to be easier to get into compliance,” he added. But for companies that don’t have “a real set structure of steps that folks in different positions earn, there’s going to be a lot of work just figuring out where things are right now.”

Mariko Yoshihara, legislative counsel and policy director of the California Employment Lawyers Association, said human resources professionals should be careful if they post jobs on aggregate sites, “making sure the pay scale is listed there” as well, she said.

She also said many employers were nervous when Colorado’s pay transparency law went into effect Jan. 1, 2021, but job candidates sought out Colorado after. Recruitonomics found the labor force participate rate went up by 1.5% in Colorado compared to Utah from 2020 to 2021. 

Pay data reporting

That same law also will require that employers with 100 or more employees report to the state pay data including the total number of workers broken down by race, ethnicity and sex who fall within each pay band used by the U.S. Bureau of Labor Statistics. Within each job category, employers must include median hourly rate for each combination of race, ethnicity and sex.

“It helped create a framework for [companies] auditing their own pay practices,” said Yoshihara. “So if for instance the hourly rate for White men is two to three times higher than Black women, they should be re-evaluating looking at their pay and promotion disparities.”

Leave

California employers will see two changes to leave requirements.

AB 1949 requires that employers with five or more employees give workers up to five unpaid days of bereavement leave, available to employees who have worked at a company for at least 30 days.

AB 1041 changes the California Family Rights Act, which grants workers the right to take up to 12 weeks of leave to take care of a family member. The bill extends the definition of who is considered a family member, which “breaks out of this very outdated heteronormative definition of family,” said Yoshihara. “Oftentimes your closest people in your care network are not necessarily your mom or dad. Maybe you don’t have children, so it reflects the reality of our care networks now.”

An employer is allowed to limit an employee to one designated person per year. There isn’t any guidance on how to determine if the designation is appropriate, and Ebbink counsels clients not to. “I don’t think you as an HR person or employer have much ability to dispute who they’ve designated,” he said. “How you define that individual is on a case-by-case basis.”    

Retaliation in emergency conditions

SB 1044 prevents employers from retaliating against workers who refuse to report to or leave a workplace or worksite because an employee has a “reasonable belief” that their jobsite is unsafe, or who are under an order to evacuate a workplace, worksite, worker’s home or the school of a worker’s child.

It covers natural disasters and something like an active shooter situation, said Ebbink, but not a health pandemic, so employees can’t use the law to say they’re not coming to work because they feel a company’s COVID-19 protocols are unsafe. 

The law also makes it unlawful for an employer to stop employees from using their cellphones to seek emergency help or communicate with someone to make sure they’re OK in an emergency situation. This may drive employers to revisit any “no cellphone” policies they might have or are thinking of implementing.

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