AB 2134: Information on Access to Reproductive Healthcare

Sugar & Spice Reproductive Rights.

AB 2134: Information on access to reproductive healthcare for employees of religious employers

Despite countless offensive and degrading decisions from the U.S. Supreme Court diminishing access to safe and affordable reproductive healthcare over the last several years, California Democrats continue to take measures to secure access to abortion services and contraceptives for their constituents. Under AB 2134, if a religious employer’s healthcare coverage fails to provide employees with abortion and contraceptive coverage or benefits, the employer must provide its employees with written information regarding abortion and contraceptive services that may be available to them at no cost through the California Reproductive Health Equity Program. AB 2134 also requires the Department of Industrial Relations to post to its website information regarding abortion and contraception benefits available through the program.

AB 2068: Employers Required to Post Cal/OSHA Information Regarding Citations or Orders

Employment laws pertaining to OSHA/Cal OSHA citations and order display languages.

AB 2068: Employers required to post Cal/OSHA information regarding citations or orders in English and other specified languages

Employers must already post Cal/OSHA citations in English in places readily seen by all employees. Now, AB 2068 expands worker access to these disclosures by requiring Cal/OSHA citation notices to be in English as well as the top 7 non-English languages used by limited-English-proficient adults in California, as determined by the U.S. Census Bureau’s American Community Survey, as well as Punjabi (if not already included in the top 7). Employers that fail to post citations in all required languages may be subject to (further) citation by Cal/OSHA.

AB 1949: Employers Required to Provide 5 Days of Bereavement Leave

Sexual harassment retaliation by landlord.

AB 1949: New requirement for employers to provide 5 days of bereavement leave

AB 1949 makes it an unlawful employment practice for a covered employer to refuse to grant a request by an eligible employee to take up to 5 days of bereavement leave (which need not be consecutive) upon the death of a family member. A “covered” employer is: (i) a person who employs 5 or more persons to perform services for a wage or salary; and (ii) the State and any political or civil subdivision of the State, including, but not limited to cities and counties. An “eligible” employee means a person employed by the employer for at least 30 days prior to the commencement of the leave. A “family member” means a spouse or a child, parent, sibling, grandparent, grandchild, domestic partner, or parent-in-law as defined in Government Code Section 12945.2

The law provides that bereavement leave may be unpaid, except that an employee may use vacation, personal leave, accrued and available sick leave, or compensatory time off that is otherwise available to the employee.

The law requires that the leave be completed within 3 months of the date of death.

The law also requires employees, if requested by the employer, within 30 days of the first day of the leave, to provide documentation of the death of the family member.

“Documentation” includes, but is not limited to, a death certificate, a published obituary, or written verification of death, burial, or memorial services from a mortuary, funeral home, burial society, crematorium, religious institution, or governmental agency.

AB 1576: Superior Court Lactation Rooms

Pregnancy discrimination accommodations.

AB 1576: Superior Court lactation rooms beginning July 1, 2024

Until AB 1576, nursing parents who visited California Superior Courts had no choice but to pump or feed their babies while sitting on a toilet in the courthouse bathroom or in the hallway across from their adversaries. This includes nursing lawyers, whose work requires spending hours tethered to the courtroom in hearings and trials.

Fortunately, beginning July 1, 2024, California Superior Courts will be required to provide court users, including lawyers and litigants, with access to a lactation room in any courthouse which a lactation room is also provided to court employees. The bill requires the lactation room to meet the requirements imposed upon an employer with respect to providing a lactation room for employees.

Non-Disparagement Clauses Are Retroactively Voided, NLRB’s Top Cop Clarifies

The general counsel of the National Labor Relations Board issued a memo this week clarifying one of the biggest open questions after the NLRB rules broad non-disparagement clauses were illegal.

The general counsel of the National Labor Relations Board issued a clarifying memo on Wednesday regarding the “scope” of a February ruling by the federal agency’s board that said employers cannot include blanket non-disparagement clauses in their severance packages, nor demand laid-off employees keep secret the terms of their exit agreements.

Such provisions have become increasingly common in recent years, muzzling employees and otherwise stopping them from speaking up about working conditions by dangling a few weeks or months of pay in front of them at the exact moment they are losing their job.

In the memo sent to regional offices, General Counsel Jennifer Abruzzo addressed what had been one of the largest questions that resulted from the ruling: Does it retroactively void broad non-disparagement agreements that were signed prior to the February ruling? Abruzzo wrote that the decision does, in fact, have “retroactive application,” meaning that already-signed and “overly broad” non-disparagement clauses are no longer considered valid by the NLRB.

Abruzzo is charged with prosecuting cases against employers who break the rules. She said an unlawful clause would likely not invalidate an entire severance agreement, as the regional offices tend to “seek to have [the unlawful portions] voided out as opposed to the entire agreement.”

However, employers who attempt to continue to enforce illegal severance clauses could face trouble from the NLRB. While the NLRB typically has a six-month statute of limitations for labor violations, businesses who attempt to enforce illegal parts of an older severance agreement would be committing a contemporary “violation” and subject to enforcement, Abruzzo said.

Additionally, Abruzzo provided clarification around what non-disparagement and confidentiality clauses may still be considered legal. The provisions, she said, must be “narrowly-tailored.” In the case of confidentiality, the clause must serve to keep proprietary trade information secret “for a period of time based on legitimate business justifications may be considered lawful,” but must not have “a chilling effect that precludes employees from assisting others” or communicating with the media, a union, or other third parties.

With regards to non-disparagement, Abruzzo similarly said the provision must not only be both “narrowly-tailored” and “justified,” but limited to statements by an employee that fit the legal definition of defamation, meaning they are purposefully and maliciously untrue.

In February, the NLRB ruled that in a case regarding a Michigan hospital, laid-off workers had been asked to sign unnecessarily burdensome severance contracts that violated their labor rights. The decision overturned a pair of Trump-era decisions which had temporarily upended the previous “longstanding precedent” by saying that more broad non-disparagement and confidentiality clauses were lawful.

The NLRB this year said that the Trump era decisions were wrong and that the laid-off hospital employees had been asked to “overly broad non-disparagement and confidentiality clauses” that unnecessarily restrained their NLRB rights. The decisions led to questions about what the decision meant for people who signed similar non-disclosure agreements in the interim.

Read more from Maxwell Strachan.

AB 1041: CFRA and Paid Sick Leaves Expanded to Cover Employee’s Care for a “Designated Person”

Expanding family leave to include designated individual that does not have to be family.

AB 1041 amends the California Family Rights Act (“CFRA”) and the Healthy Workplaces, Healthy Families Act of 2014, also known as the Paid Sick Leave Law, to permit eligible employees of covered employers to take leave to care for a “designated person” who does not have to be a family member. Rather, a “designated person” can be any individual related to the employee by blood or whose association with the employee is the equivalent of a family relationship. The designated person may be identified by the employee at the time the employee requests the leave. An employer may limit an employee to one designated person per 12-month period.

AB 257: Council to Regulate Working Conditions for Fast Food Workers

Burger King

AB 257: Council to regulate working conditions for fast food workers; on hold pending litigation and, potentially, a referendum

With AB 257, the Legislature will establish a new and powerful Fast-Food Council, the first of its kind in the State. Sponsored by the Service Employees International Union (“SEIU”) and inspired by its “Fight for $15 and a Union” movement, the Council will be empowered to regulate wages, hours, and working conditions of California’s fast-food employees, a population of workers historically subjected to hazardous working conditions and shamefully low wages.

The Fast-Food Council will be made up of 10 members, appointed by the Governor, Speaker of the Assembly, and the Senate Rules Committee, and will dictate working conditions for employees of chains with at least 100 outlets nationwide. The Council is expected to raise fast food worker wage rates as high as $22 an hour.

Unsurprisingly, the Chamber of Commerce has made destroying the bill a priority. As this article was going to print, a judge temporarily blocked the State from implementing the law as the result of a lawsuit filed by a coalition of giant corporate chain restaurants, which is seeking a referendum on the November 2024 ballot in a bid to overturn the law. “If and when the referendum challenging AB 257 qualifies for the ballot, the law will be put on hold,” said Katrina Hagen, Director of the Department of Industrial Relations.

None of this corporate chicanery would be possible but for the Supreme Court’s obsequious decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) (holding that the Free Speech Clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations). Of course, while the Founders were well aware of the existence of various types of business enterprises (joint-stock companies, corporations such as the East India Company, which was incorporated in 1600, and the like), the Founders did not provide for any corporate rights in the Constitution or the Bill of Rights. Rather, the Founders understood that, to the extent that corporations had any type of personhood, it was a legal fiction limited to a courtroom. But we digress.