14 | 2024 Cal-Peculiarities ©2024 Seyfarth Shaw LLP www.seyfarth.com Preface to the 2024 Edition New Legislation Following somewhat of a lull in the amount of employment-related legislation introduced in 2020 and 2021 — when the State Legislature was focused on pressing pandemic-related measures — the Legislature returned to more normal activity in 2022 and 2023. Bills affecting non-compete agreements, paid sick leave, workplace violence prevention plans, and new minimum wage standards for health care workers, topped the list of new employer obligations, most of which became effective on January 1, 2024. New Laws Non-Compete Agreements. Though largely declarative of existing law, the Governor signed legislation rendering unenforceable any contract void for the inclusion of a non-compete agreement, and codified Edwards v. Arthur Andersen LLP, which makes void any non-compete clause or agreement in an employment context, no matter how narrowly tailored. Employers must now notify both current and former employees if they signed an employment contract containing a now void non-compete clause. Failure to do so constitutes a violation of the Unfair Competition Law set forth in the Business & Professions Code. Paid Sick Days Accrual and Use. The annual amount of paid sick leave employers must provide was increased from three days or 24 hours to five days or 40 hours for eligible employees, and the accrual cap increased from 48 hours to 80 hours. Anti-retaliation and procedural provisions already contained in California’s sick pay law now apply to anyone covered by a valid CBA. Leave for Reproductive Loss. Employers must provide eligible employees up to five days of (unpaid, unless the employer has an existing policy stating otherwise) reproductive loss leave upon suffering a failed adoption or surrogacy, miscarriage, stillbirth, or an unsuccessful assisted reproduction. Retaliation Rebuttable Presumption. There is now a rebuttable presumption of retaliation under Labor Code sections 98.6 and 1197.5 if an employer subjects an employee to an adverse action within 90 days of an employee engaging in protected activity (i.e., making complaints or claims related to rights under the jurisdiction of the Labor Commissioner, making complaints about unpaid wages, or making complaints about equal pay violations). The associated civil penalty is increased from $10,000 generally to $10,000 per employee per violation. Local Enforcement: Wage Theft. Public prosecutors, including the Attorney General, a district attorney, a city attorney, or a county counsel, may now independently prosecute specified violations of the Labor Code that occur within their geographic jurisdictions. Any individual agreement (i.e., not CBAs) that requires arbitration of a dispute or limits representative actions does not affect the prosecutor or Labor Commissioner’s ability to enforce the Labor Code. Defamation Privilege: Sexual Harassment. The defamation privilege was extended to include an individual’s communications made, without malice, regarding factual information related to incidents of sexual assault, harassment, or discrimination experienced by that person, provided the individual had a reasonable basis to file a complaint (regardless of whether it was filed or not). A defendant who prevails in an action related to making such a privileged communication may recover its reasonable attorney fees and costs, treble damages, and punitive damages.
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