It’s that time of year again. The weather gets cold and rainy, the calendar turns from December to January, and new employment laws go into effect that could shake up your workplace.
The California legislature is always forward-thinking when it comes to employment laws, and 2023 was no different. As numerous key bills cleared Governor Gavin Newsom’s desk to take effect as early as January 1, employers should make New Year’s resolutions to familiarize themselves with these new laws to ensure compliance.
SB 699 and AB 1076 – Employment Noncompete Agreements
Took effect Jan. 1, 2024
With this pair of laws, California expands its longstanding prohibition on noncompete agreements. SB 699 prohibits employers from enforcing noncompete agreements considered void and unenforceable under California Business & Professions Code Section 16600. Under SB 699, any contract that is void under Section 16600 is unenforceable regardless of where or when the contract was signed, thus restricting the ability of out-of-state employers to enforce noncompetition agreements in California.
Additionally, AB 1076 amends Section 16600 to codify precedent from Edwards v. Arthur Andersen LLP that noncompetition agreements in the employment context are void, even if the agreements are narrowly tailored. Once AB 1076 takes effect, Section 16600 must be applied broadly to void all noncompete clauses in an employment context, unless they fall under one of the existing statutory exceptions, i.e. associated with the sale of a partnership; dissolution of a partnership; or dissolution of limited liability interests. Furthermore, the revised law states that it is unlawful for employers to include noncompete clauses in an employment contract. AB 1076 applies retroactively from January 1, 2022, and any individuals who were employed after this date with a noncompete clause that does not satisfy an exception must be notified that those noncompete clauses are void.
AB 2188 and SB 700 – Discrimination on Previous Cannabis Use
Took effect Jan. 1, 2024
In 2022, Governor Newsom signed AB 2188, which expanded the California Fair Employment and Housing Act (FEHA) to prohibit employers from discriminating against a person in hiring, terminating, or imposing any terms and conditions of employment either because of the person’s use of cannabis away from the workplace or a cannabis drug-screening test that identifies non-psychoactive cannabis metabolites.
In 2023, through SB 700, the California Senate sought to create additional protections for cannabis users in the workplace. SB 700 explicitly makes it unlawful for an employer to request information from a prospective employee relating to the prospective employee’s prior use of cannabis. SB 700 provides that adding these protections does not prohibit an employer from inquiring about an applicant’s criminal history if otherwise permitted by law, nor does it preempt state or federal laws requiring applicants to be tested for controlled substances or mandating federal background checks or security clearances for certain positions.
SB 553 – Workplace Violence Prevention Plan
Took effect July 1, 2024
One of the most significant bills advanced in California in 2023 was SB 553. In response to rising workplace violence statistics, SB 553 requires every California employer to establish, implement, and maintain a workplace violence prevention plan as part of an injury and illness prevention program (IIPP), to protect employees and other personnel from aggressive and violent behavior in the workplace.
Specifically, workplace violence prevention plans must include:
(i) the names or job titles of the persons responsible for implementing the plan;
(ii) procedures for the active involvement of employees and employee representatives in developing and implementing the plan;
(iii) methods the employer will use to coordinate implementation of the plan with other employers to ensure that those employers and employees understand their respective roles and responsibilities;
(iv) how the employer will accept and respond to reports of workplace violence, and to prohibit retaliation against an employee who makes such a report;
(v) how an employee may report a violent incident, threat, or other workplace violence concern to the employer or law enforcement agencies without fear of reprisal;
(vi) how employee concerns will be investigated and how employees will be informed of the results of the investigation and any corrective actions to be taken;
(vii) the means to alert employees of the presence, location, and nature of workplace violence emergencies.
(viii) evacuation or sheltering plans that are appropriate and feasible for the worksite;
(ix) how to obtain help from staff assigned to respond to workplace violence emergencies, security personnel, or law enforcement;
(x) procedures for post-incident response and investigation;
(xi) how to identify and evaluate workplace violence hazards, including “scheduled periodic inspections to identify unsafe conditions and work practices and employee reports and concerns”; and
(xii) how to review the effectiveness of the plan and revise the plan as needed.
Additionally, employers must record every incident of workplace violence in an incident log and retain that log for five years. Given the extensive requirements for employers under the statute, employers should take immediate action to ensure they have a compliant workplace violence prevention plan in place before the law takes effect on July 1, 2024.
With constantly evolving laws affecting the workplace, employers should remain vigilant to keep up with changes. Companies should carefully review issues and create policies that balance legal compliance with the specific needs of the business.