California initiates and amends employment laws each January. As an employer, you are required to always maintain compliant company policies. This article will help you start 2024 off right in three key categories: sick pay, drug screening, and noncompete contract notice. Since this article cannot not identify all necessary changes, please contact your employment law attorney to update your employee handbook each year.

Expanded Sick Leave Pay – SB 616

The Healthy Families Act of 2014 that requires paid sick leave for employees who work in California for the same employer for 30 or more days, has amended its payment and accrual requirements again.[i]

Where an employer is authorized to continue using a paid leave or paid time off policy that is consistent with current sick leave laws, an employee’s eligibility to earn at least 3 days or 24 hours of sick leave or paid time off within 9 months of employment, is expanded to require that the employee be eligible to earn at least 5 days or 40 days of sick leave or paid time off within six months of employment. This law may impact your workplace budgets as it applies to required sick pay for your employees.

Accrual caps of 48 hours or 6 days are expanded to 80 hours or 10 days.  Policies relating to in-home supportive services are expanded to more fully define “full amount of leave” as it applies to minimum wage increases.

The good news is that employers are not required to provide compensation to an employee for accrued, unused paid sick days upon termination, resignation, retirement, or other separation from employment. Contact your employment law attorney for review of your sick leave policies to ensure ongoing compliance with the changing laws.

Cautiously Ask or Test for Cannabis Use – SB 700 and AB 2188

Effective January 1, 2024, AB 2188 makes it unlawful for an employer to discriminate against a person in hiring, termination, or any term or condition of employment, or otherwise penalize a person, if the discrimination is based on the person’s use of cannabis off the job and away from the workplace.[ii]  More specifically, an employer can use scientifically valid preemployment drug screening using a method that does not screen for non-psychoactive cannabis metabolites. However, where an employer-required drug screening test finds non-psychoactive cannabis metabolites in the employee’s hair, blood, urine or other bodily fluids, the employer may not simply determine that cannabis was used in the past and take action against the employee or applicant.

The goal of the law is to focus cannabis testing and inquiry on current impairment, not on past non-psychoactive cannabis metabolite by requiring the employer to use updated testing methods, and to refrain from any discrimination based on past use alone. This will warrant an evaluation of the drug testing methods used by your company.

Exceptions include:

• preemployment drug screening with scientifically valid preemployment drug screening that does not screen for non-psychoactive cannabis metabolites;
• employees in the building and construction trades;
• employees hired for positions that require a federal government background investigation or security clearance.

SB 700 expands the Fair Employment and Housing Act, specifically Government Code section 12954, to limit an employer’s inquiries regarding a person’s use of cannabis off the job and away from the workplace. [iii]The same exceptions apply, as with AB 2188, such as use of scientifically valid preemployment drug screening that does not screen for non-psychoactive cannabis metabolites, or federally related positions.

Basically, this means that inquiries regarding cannabis use must be focused on current impairment and your testing methods must be analyzed to be compliant with the new law so that you can continue to perform proper pre-employment drug testing.   Of course, the law is not intended to allow any employee to possess, be impaired by, or to use cannabis on the job, or affect the rights or obligations of an employer to maintain a drug and alcohol-free workplace.

Unfair Competition Law Expanded with Noncompete Agreements

By February 14, 2024 (Valentine’s Day), for employees, current or former, who were employed after January 1, 2022, and whose contracts include a noncompete clause that does not meet the new provisions under this law, you now have an affirmative duty to inform the employee in writing that the noncompete clause or noncompete agreement is void.  If you fail to do so, a violation of this section constitutes an act of unfair competition as contemplated by Business and Professional Code section 17200, et. seq. (known as the Unfair Competition Law)

This means that your carefully tailored employment contract which restrains any employee from engaging in a lawful profession, trade or business of any kind will be more strategically scrutinized by the courts. This law is not intended to be a change in existing law, but rather clarifies current caselaw, and adds the affirmative obligation.

Takeaways

Do not ignore even minor changes to employment law because your affirmative obligations may become the basis of a class action against you, as a California employer, under the Unfair Competition Law, or even the Private Attorney General’s Act (PAGA). A brief or extended evaluation of your employment policies and handbook with your employment law attorney could save you thousands, or millions of dollars moving forward in 2024, and enhance your employee morale as well. Tyson & Mendes has qualified employment law attorneys who are ready to assist you to protect your company assets from unnecessary lawsuits; please reach out if we can help.

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Sources

[i] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240SB616

[ii] https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202120220AB2188

[iii] https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=202320240SB700