As 2024 kicks off, California employers should be aware of an array of developments in the law. The California legislature recently passed new laws creating new obligations for employers this year, including further restrictions on noncompete agreements, additional leave time requirements, expanded protections for certain employee conduct, and workplace violence prevention programming.
Additional Prohibitions on Employment Noncompete Agreements
As of January 1, 2024, California now expressly prohibits employers from requiring an employee to enter into a noncompete agreement, including a noncompete clause in an employment agreement, with few exceptions. The amended law now requires employers to notify current and former employees (employed after January 1, 2022) that any such agreements are void, and such notification must be issued no later than February 14, 2024. Failure to do so will be considered a violation of the Unfair Competition Act.
Employers are also prohibited from “attempting to enforce a contract that is void [under California law] regardless of whether the contract was signed and the employment was maintained outside of California.” That is, the law bars enforcement of illegal noncompete agreements within California, even if they were entered into by parties located outside of the state. The law also gives employees the right to sue their employers for injunctive relief, damages, and/or attorneys’ fees for violations of the law.
Expanded Leave Requirements
Reproductive Loss Leave
Effective January 1, 2024, California law requires employers to permit up to 5 days of leave for California employees who experience a “reproductive loss event,” including a miscarriage or stillbirth, failed adoption, or unsuccessful assisted reproduction (such as IVF treatment). In most circumstances, the leave must be taken within 3 months of the reproductive loss event. The leave does not have to be paid, but employees are entitled to use available paid sick leave or other leave balances. The leave must be taken pursuant to the employer’s existing leave policies. In the event an employee experiences more than one reproductive loss within this period, the employer is only required to grant a maximum of 20 days of leave within a 12-month period.
Additional Paid Sick Leave
California employees are now eligible to receive a minimum of 40 hours (or five days) of accrued sick leave or paid time off per year (by the 200th day of employment). Prior to January 1, 2024, employers were only required to provide 24 hours (or 3 days) of sick leave. The newly amended law will also have an impact on annual usage and accrual caps. For example, the law increases the authorized limitation on annual accrued sick leave to 80 hours.
Changes to Employer Criminal Background Checks
New regulations that went into effect October 1, 2023 further limit an employer’s ability to conduct criminal background inquiries on applicants and employees. If an employee or applicant voluntarily discloses such information, the employer may not consider this information before making a conditional offer. Employers additionally cannot specify in job postings or recruiting materials that they will not consider applicants with criminal histories. Employers cannot inquire about an applicant’s criminal history “through an employment application, background check, or internet searches” before making a conditional offer of employment. If they do inquire about such history in violation of this law, or if it is voluntarily disclosed by the employee or applicant, the employer may not consider this information before making a conditional offer.
Further, employers are now required to conduct a more in-depth analysis of an employee or applicant’s criminal history before making an adverse decision on that basis within specific time limitations. If the employer rescinds a conditional offer based on an applicant’s criminal history, the applicant is entitled to a specific appeal and reassessment process.
Protections for Employees’ and Job Applicants’ Off-the-Job Cannabis Use
New laws effective January 1, 2024 provide further protections for applicants and employees based on their recreational or medical marijuana use, both of which are legal in California. Employers are now prohibited from engaging in any adverse employment action based on an employee’s off-duty marijuana use. Further, employers may not request information from an applicant regarding their past cannabis use. Employers may still restrict marijuana use on the job.
Retaliation Claims under the California Labor Code
An amendment to the California Labor Code that went into effect on January 1, 2024 aids employees in establishing a prima facie case of retaliation. The amendment creates a rebuttable presumption that an employee who is suspended or terminated within 90 days of engaging in protected activity, as defined by the Labor Code, is a victim of retaliation. Previously, temporal proximity between an employee’s protected activity and their subsequent discipline could not, standing alone, be sufficient to establish a prima facie case of retaliation. The employer will now be required to rebut this presumption with evidence that the discipline was based on a non-retaliatory and legitimate business reason.
Workplace Violence Prevention Program Requirements
A new workplace violence prevention law will require nearly every California employer to devise and implement workplace violence prevention programs by its effective date of July 1, 2024. The law sets forth various requirements for employers to follow when creating and maintaining their workplace violence prevention plan, including procedures for annual employee training upon implementation of the program, alerts to employees in the event of an emergency, investigation and response protocols following an incident, maintenance of records, and regular review of the employer’s plan and any potential hazards in the workplace.
Employers with California-based employees are encouraged to review their employee handbooks and employment policies, including hiring policies, drug use policies, and leave policies, to ensure compliance with the new laws effective in 2024.