The California legislature is in the midst of its 2023 legislative session, having already considered more than 2,000 bills. As the Senate and Assembly work towards the September 14 deadline to pass legislation, below are five of the most impactful employment bills currently working through the Capitol. From new policies that could impact the restaurant and tech industries to potentially creating new avenues for discrimination claims, the legislature is making big waves.
Discrimination on the Basis of Caste
Introduced by Senator Wahab, SB 403 clarifies that discrimination on the basis of caste is prohibited under the Fair Employment and Housing Act (FEHA), the Unruh Civil Rights Act, and state laws prohibiting discrimination in publicly funded programs and public education.
As defined in the bill, “caste” is a person’s perceived position in a social hierarchy on the basis of inherited status. A caste system may be characterized by factors such as inability or restricted ability to alter inherited status; socially enforced restrictions on marriage, private and public segregation, and discrimination; and social exclusion on the basis of perceived status.
Discrimination on the Basis of Cannabis Use
Furthering the state’s recent efforts to destigmatize cannabis use, SB 700 adds to the existing FEHA prohibitions on discrimination on the basis of cannabis use by making it unlawful for an employer to request information from an applicant regarding the applicant’s prior use of cannabis.
Since adult recreational cannabis use was approved by voters in 2016, California has sought to prevent adverse employment outcomes against cannabis users. Until 2022, employers were still permitted to discriminate on the basis of entirely legal cannabis usage that was off the job and did not affect an applicant’s or employee’s job performance. While last year’s AB 2188 closed the loophole on employers’ ability to ask about off-the-job cannabis use, employers could ask about a job applicant’s past cannabis use. SB 700, if passed, would protect employees and applicants from discrimination for their past cannabis use. Note that this bill does not apply where federal background checks are required.
Workplace Violence Prevention Plan
In response to rising workplace violence statistics, Senator Cortese introduced SB 553, which requires employers to establish, implement, and maintain a workplace violence prevention plan to protect employees and other personnel from aggressive and violent behavior in the workplace. SB 553 builds upon prior legislation that required hospitals to adopt a workplace violence prevention plan to protect healthcare workers.
Workplace violence is a serious concern for California employers and workers and has been for years. According to 2021 data from the Department of Industrial Relations, “57 working people died from acts of workplace violence in California. In the U.S., an average of 1.3 million nonfatal violent crimes in the workplace occurred annually from 2015 to 2019.”
SB 553 authorizes a collective bargaining representative of an employee who has suffered unlawful violence to seek a temporary restraining order (TRO) on behalf of the employee.
Mass Layoff Warnings
The California Worker Adjustment and Retraining Act (WARN) requires an employer with 75 or more employees at a single establishment to give 60-days notice when 50 or more workers during a single 30-day period may be impacted by a mass layoff, relocation, or termination. The WARN Act allows impacted employees to prepare for the potential loss of income and alerts impacted communities of the need to provide resources.
To protect workers from sudden layoffs, the legislature is advancing AB 1356, which revises the WARN Act to increase the length of notice an employer must provide to employees to 90 days.
In announcing AB 1356, the bill’s author, Assemblymember Haney, detailed recent mass layoffs by tech companies, upending thousands of high-skilled workers in the Bay Area – while also noting that downsizing can be unavoidable. AB 1356 is intended to ensure such workers receive basic protections during a termination or job transition.
Additionally, AB 1356 expands the WARN Act to apply to a person employed by a labor contractor and performing labor with their client employer for at least six of the 12 months preceding the date on which a mass layoff notice is required.
Fast Food Franchisor Responsibility Act
Restaurant owners, listen up! If AB 1228 becomes law, you could be held jointly liable for the acts of your franchisees. The bill declares that a fast-food franchisor shares all civil responsibility and liability with its restaurant franchisee for the franchisee’s legal violations. The proposed law would also require franchisors to share liability with their franchisees for penalties imposed under the Private Attorneys General Act of 2004 (PAGA).
According to one study, franchising is the dominant mode of industrial organization in the fast-food industry, with 73 percent of the 3.58 million fast food workers in the United States employed in franchised chains. The National Labor Relations Board (NLRB) has, for years, tried to establish a legal threshold for triggering a joint-employer relationship. The NLRB is currently working on a new proposed rule that would expand the factors that establish a joint employment relationship.
Conclusion
These are only a handful of the crucial legislative actions on employment issues being considered this summer, but all would place additional burdens on employers. The Senate and Assembly will consider these bills before the September deadline. If passed and signed into law, they would take effect on January 1, 2024.
