California requires incarcerated people to work, as directed by Department of Corrections and Rehabilitation rules.  The Legislature passed several bills related to prison labor in its recent session.

Under existing law, employers on public works projects must pay workers not less than the general prevailing rate of per diem wages as determined by the state Director of Industrial Relations. “Public works” includes construction, alteration, demolition, installation or repair work done under contract and paid for using public funds.

Governor Newsom signed AB 1810 into law, which expands access to menstrual hygiene products for incarcerated people. Previously, individuals incarcerated or confined in state prisons, local detention facilities, and state and local juvenile facilities had the right to access, be allowed to use, and continue to use materials necessary for personal hygiene with regard to their menstrual cycle and reproductive system, including, but not limited to, sanitary pads and tampons. However, that right was only upon request. AB 1810 establishes that those facilities must provide ready access to those menstrual products without individuals needing to affirmatively request them.

In 2014, SB 270 banned sales of certain single-use plastic carryout bags, which unintentionally caused the proliferation of bags made of thicker plastic film, which were technically considered reusable or recyclable but didn’t actually decrease plastic use.

Existing law regulates third-party food delivery platforms that transport ready-to-eat foods.  A “food delivery platform” includes any online business that acts as an intermediary between consumers and multiple food facilities such as Uber Eats and Door Dash.  Existing law already requires these food delivery platforms to: (1) pay the entirety of any tip for a delivery order to the person delivering the food or beverage, and (2) disclose to the customer an accurate cost breakdown of each transaction.

A recent decision from the Ninth Circuit Hartstein v. Hyatt Corporation (9th Cir. 2023) 82 F.4th 825 strengthened worker protections when employers enact furloughs or temporary layoffs. When an employer furloughs or lays off employees and does not provide a specific return-to-work date within the same pay period, the employees must be paid all earned wages, including accrued vacation time, immediately.

In a recent memorandum from General Counsel Jennifer Abruzzo, GC 24-04, the National Labor Relations Board (“NLRB”) signaled that it will aggressively pursue full make-whole remedies for all employees harmed by an employer’s unlawful conduct. Under this approach, the NLRB will not only require employers to remove unlawful work rules and contract terms but will also seek to address the lingering effects of the rule or term in the workplace. While the NLRB has traditionally taken this approach in unilateral change and retaliation cases, Abruzzo’s memo urges the NLRB to make affected employees whole in all contexts and represents a significant development in federal labor law enforcement.

When an employer commits a serious unfair labor practice (“ULP”), the General Counsel of the NLRB has the authority to petition a federal court for immediate injunctive relief—known as “10(j).” For example, if an employer fired key Union supporters in the middle of an organizing campaign—like Starbucks has been accused of doing on multiple occasions—the General Counsel can ask a court to reinstate those workers while the NLRB’s months-long (or years-long) administrative process plays out.

A California appellate court in Lopez v. La Casa De Las Madres (2023) 89 Cal.App.5th 364 recently concluded that workers bringing pregnancy discrimination claims must prove: (1) the plaintiff had a condition related to pregnancy, childbirth, or a related medical condition; (2) the plaintiff requested accommodation of this condition, with the advice of her health care provider; (3) the plaintiff's employer refused to provide a reasonable accommodation; and (4) with the reasonable accommodation, the plaintiff could have performed the essential functions of the job.

On August 25, 2023, the National Labor Relations Board issued Quickway Transportation, Inc., 372 NLRB No. 127 (Aug. 25, 2023). This case arises out of a Teamsters’ organizing drive of truck drivers at a Louisville terminal operated by Quickway. The terminal serviced a transportation contract with the Kroger Company. The Union won a Board election in June 2020. A series of unfair labor practice charges were settled two months later and approved by the Board.

California is known for its protective paid sick leave laws for workers. Under the Healthy Workplaces, Healthy Families Act of 2014, often referred to as the Paid Sick Leave Law (“PSLL”), most employers are currently required to provide employees with at least three paid sick days per year. The California legislature recently expanded the PSLL with S.B. 616, which increases the paid sick leave requirement to five days per year, effective January 1, 2024.

On October 11, 2023, Governor Newsom signed into law SB 423 and SB 4, two important and related affordable housing production bills aimed at tackling the state’s housing crisis. Governor Newsom explained that he signed the bills because of “simple math—California needs to build more housing and ensure the housing we have is affordable.”

Assembly Bill (“AB”) 1355 becomes effective on January 1, 2024. The bill authorizes employers to provide specified documents related to benefit claims, such as unemployment insurance, and California earned income tax credits, by email, if the employee opts into receipt of electronic notification.

Assembly Bill No. 594 (AB 594) seeks to address wage theft issues in California by introducing an additional method of enforcing the Labor Code. AB 594 permits public prosecutors, including the Attorney General, a district attorney, a city attorney, a county counsel, or any other city or county prosecutor, to independently prosecute certain wage and hour violations that occur within their geographic jurisdiction. Previously, only the Labor Commissioner’s office had this power.

Senate Bill 553 (SB 553), effective from July 1, 2024, creates the first general industry workplace violence prevention safety requirements in the United States. SB 553 amends the California Labor Code by adding Section 6401.9, which requires covered employers to establish a comprehensive workplace violence prevention plan. This plan must involve employee participation in identifying and addressing workplace violence hazards, coordination among employees, and procedures for seeking assistance from law enforcement agencies. In addition to creating and implementing this violence prevention plan, covered employers must maintain a detailed violent incident log that records all workplace violence incidents, responses, and injury investigations in line with the prevention plan’s guidelines. Unions are encouraged to bargain with employers over these plans and their effects.

Starting January 1, 2024, the Protect Grocery Workers Jobs Act (AB 647) will protect grocery and warehouse workers’ jobs by strengthening existing statewide grocery worker retention laws and expanding coverage to warehouse workers.

Governor Gavin Newson signed into law Senate Bill (“SB”) 497 on October 8, 2023. California state law currently prohibits employers from disciplining, discharging, discriminating, or otherwise retaliating against employees because the employee engaged in certain protected conduct. SB 947 establishes a “rebuttable presumption” in favor of an employee’s claim if an employer retaliates against the employee within ninety (90) days of engaging in protected activity. Protected activity under SB 947 includes making a wage claim or a complaint about unequal pay. The bill establishes that in addition to other remedies, an employer is liable for a civil penalty of up to $10,000 per employee for each violation, awarded to the employee who was retaliated against. The new law goes into effect on January 1, 2024.

The passing of California Assembly Bill 636 helps ensure H-2A visa farmworkers are properly informed about their legal rights in the workplace.

In a significant development on October 7, 2023, Governor Gavin Newsom signed Senate Bill 700 (“SB 700”) into law, which amends California's Fair Employment and Housing Act (“FEHA”) to extend protection against discrimination to job applicants with a history of prior cannabis use. This new provision is set to become effective on January 1, 2024.

College athletes have been consistently denied the right to organize unions, collectively bargain, and receive fair compensation, despite producing billions of dollars for their universities, conferences, and the National Collegiate Athletic Association (“NCAA”). At the federal level, this disparity has been lessened somewhat recently by the ability of certain college athletes to negotiate “name, image, and likeness” compensation deals.