California Mid-Year Legislative Update: Family Leave, Sick Pay, and Work Quotas

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

[co-author: Jamie Chung]

The pandemic continues to loom large over the California legislature this year, as indicated by the bills advancing through the legislative process. Below is a summary of the major employment law bills that are working their way through the state Assembly and Senate. The bills pertain to the expansion of medical and sick leave, postings for employees working remotely, and warehouse production quotas for facilities that have ramped up operations during the pandemic.

Expansion of CFRA Leave and Sick Pay

Two bills, currently pending in the Senate, seek to expand the scope of the California Family Rights Act (CFRA). The second bill also looks to expand sick pay.

Under the CFRA, employers in California are required to grant eligible employees up to 12 workweeks of unpaid protected leave during any 12-month period for family care and medical leave. Under current law, this protected leave includes leave to care for a parent.

Assembly Bill (AB) 1033 would expand the definition of family care and medical leave to include leave to care for a parent-in-law.

Status

The state Assembly has passed AB 1033 and the bill is currently pending in the Senate. The bill was recently re-referred to the Senate Appropriations Committee after being read for the first time.

AB 1041 would expand family care and medical leave to include leave to care for a “designated person.” The bill defines designated person as “a person identified by the employee at the time the employee requests family care and medical leave.” The bill does not require this person to have any particular relationship with the employee, the employee’s family, or otherwise. However, the bill authorizes an employer to limit an employee to a single designated person per 12-month period for family care and medical leave.

Furthermore, AB 1041 would expand the Healthy Workplaces, Healthy Families Act of 2014. Under the act, an employee who works in California for the same employer for 30 or more days within a year is entitled to paid sick days, and may use those days to care for a family member. Existing law defines family member “to include individuals who share a prescribed relationship with the employee.” The bill expands the definition of “family member” to include a “designated person.” Similarly defined as above, the term refers to a person the employee identifies “at the time the employee requests paid sick days.” Again, the employer can limit the employee to a single designated person per 12-month period.

The introduction of a “designated person” would significantly expand the scope of both acts. Employers can anticipate more requests for CFRA leave or paid sick days, especially as the COVID-19 pandemic continues.

Status: The Assembly has passed AB 1041 and the bill is currently pending in the Senate. The bill is currently in committee after being read for the first time.

Required Postings

Senate Bill (SB) 657 provides that, for any instance that an employer is required to physically post information, the employer can also distribute that information via email, with the document or documents attached. However, the bill specifies that this does not change the employer’s obligation to physically display the required posting at the workplace.

SB 657 comes at an apt time, as many workplaces and employees continue to stay largely remote as a result of the COVID-19 pandemic. SB 657 clarifies that required postings do not need to be physically sent or shown to out-of-office employees, and can instead be electronically sent to them, so long as the required posting remains physically displayed at the workplace.

Status

Governor Gavin Newsom signed SB 657 into law on July 16, 2021.

Warehouse Distribution Centers

AB 701 would significantly impact warehouse distribution centers. The bill requires employers with “100 or more employees at a single warehouse distribution center or 1,000 or more employees at one or more warehouse distribution centers” in California to “provide to each employee, upon hire, a written description of each quota to which the employee is subject.” These written descriptions would include “the quantified number of tasks to be performed or materials to be produced or handled, within the defined time period, and any potential adverse employment action that could result from failure to meet the quota.”

Under the legislation, “[i]f a current or former employee believes that meeting a quota caused a violation of their right to a meal or rest period or required them to violate any occupational health and safety laws in the Labor Code or division standards, they [would] have the right to request … a written description of each quota to which the employee is subject and a copy of the most recent 90 days of the employee’s own personal work speed data,” which the employer must provide within 21 calendar days. The bill also allows current or former employees to “bring an action [against their employers] for injunctive relief to obtain compliance with specified requirements, and may, upon prevailing in the action, recover costs and reasonable attorney’s fees.”

The bill introduces vague standards that may create new litigation risks and pressure warehouse employers with costly litigation.

Status: The Assembly has passed AB 701 and the bill is currently pending in the Senate. The bill was recently re-referred to the Senate Appropriations Committee after being read a second time.

This is a mid-year review, so it remains to be seen which of the pending bills will end up on the governor’s desk.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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