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Starting in 2022, a slew of new laws protect California workers, including laws seeking to curtail wage theft from all workers and delivery drivers, and laws prohibiting overly broad confidentiality agreements.  Continue reading for an overview of new laws set to protect California workers in 2022.

AB 1003 – Wage Theft is A Felony

New Law

Wage theft is a serious problem.  Although wage theft already carries stiff civil penalties and is a misdemeanor, wage theft persists.  Each year, 2.4 million workers lose $8 billion in wages due to wage theft annually.  AB 1003 codifies section 487m to the California Penal Code, making intentional wage theft a crime.  An employer’s theft of wages, including gratuities, in an amount greater than $950 from any one employee, including independent contractors, or $2,350 in the aggregate from two or more employees, in twelve months may lead to a criminal conviction.

What California Workers Should Do

California workers should keep a persona log of all hours worked.  They should also keep all wage statements.  If a worker suspects that their employer is stealing their wages, the driver should contact an attorney to bring a civil suit for damages and, if the wage theft is intentional, also contact the State Attorney General’s Office for criminal prosecution.

AB 286 – App Delivery Drivers Entitled To All Tips

New Law

This bill makes it unlawful for food delivery apps, such as DoorDash, Uber Eats, or Postmates, to retain any portion of a driver’s tip or gratuity.  Specifically, the law provides, “Any tip or gratuity for a delivery order shall be paid by a food delivery platform, in its entirety, to the person delivering the food or beverage.”  Business and Professions Code § 22599.1(2).

What California Workers Should Do

Delivery drivers should review their terms of employment to ensure the employing platform’s policy is to pay 100% of tips and gratuities to the driver.  If it is unclear, the driver should reach out to the platform, preferably in writing, to confirm that the platform does not retain any tip or gratuity money.  If the driver suspects that the platform is taking their tips, the driver should contact an attorney to bring a civil suit and also contact the State Attorney General’s Office for criminal prosecution.

SB 331 – Silenced No More Act

New Law

The Silenced No More Act empowers survivors of harassment and discrimination and seeks to curtail future abuses by perpetrators in the workplace.  The Act expands SB 820’s prohibition on overly broad confidentiality and non-disparagement clauses in employment agreements to cover workers who are required to agree to these provisions as part of a severance agreement.  Starting January 1, 202, all forms of discrimination made unlawful by the Fair Employment & Housing Act (“FEHA”) may not be included in settlement agreement and severance agreement confidentiality provisions.  The Silenced No More Act further expands existing law by exempting all unlawful acts under FEHA from non-disparagement agreement coverage in settlement agreements, severance agreements, or required in exchange for a raise, bonus, or as a condition of employment or continued employment. Further, any non-disparagement provision restricting a California employee’s ability to discuss workplace conditions shall include the following disclaimer: “Nothing in this agreement prevents you from discussing or disclosing information about unlawful acts in the workplace, such as harassment or discrimination or any other conduct that you have reason to believe is unlawful.”  Where the employer offers a settlement agreement or separation agreement containing a non-disparagement provision, must also notify the employee that they have the right to consult an attorney regarding the proposed agreement. Further, the employer must allow the employee at least five business days to consult with an attorney.

What California Workers Should Do

California workers settling employment claims should review proposed settlement agreements to comply with the Silenced No More Act.  Additionally, California workers should review severance agreements for compliance, as well.

AB 1033 – California Family Rights Act Update

New Law

The California Family Rights Act protects a California worker’s right to leave to care for an ill family member. Previously, an employee could only take CFRA protected leave to care for a child, parent, spouse, grandparent, grandchild, sibling, or domestic partner with a serious health condition.  Now, a California worker may take CFRA leave to provide care for a parent-in-law, too.  Please note that AB 1033 also clarifies and adjusts procedures slightly relating to the CFRA’s small employer mediation pilot program.

What California Workers Should Do

California workers now have the ability to take CFRA-protected leave to care for an ill parent-in-law.  Where an employer denies this right, the California worker should consider contacting an attorney for assistance.

SB 657 – Emailing Notices Permitted

New Law

Under SB 657, employers may now email notices containing information the employer is required to physically post at a job site.  While beneficial to remote employees, SB 657 does not alter the employer’s obligation to physically post the required postings at job sites.

What California Workers Should Do

When starting a new job on or after January 1, 2022, ensure your new employer emails digital copies of all required postings.  An employer’s failure to do so signals that they do not follow best practices, and that you may be working for an outdated employer.

AB 1561 – AB5 Amendments

In September 2021, AB 1561 was approved and is set to amend certain provisions in AB5.  First, AB 15661 extends the provision exempting manicurists and subcontractors from AB5 until January 1, 2025.  Second, the bill redefines the “data aggregator” exemption relationship to apply to a data aggregator and a research subject.  Third, in addition to underwriters, auditors, risk management employees, and loss control employees working in the insurance and financial service industries, claims adjusters and third-party insurance and financial service employees are now also exempt from AB5.  Fourth, a manufactured housing dealer’s statutorily imposed duties are not factors to be considered under the Borello test.  The remainder of AB5 remains unchanged.