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By Ryan Quadrel, Esq., SBEMP Attorneys

During its 2023 session, the California State Legislature turned its focus away from the pandemic and back to regulating the workplace. Here is a run-down of five key labor bills that will take effect on January 1, 2024, and their implications on public agency employers. In summary:

• Temporary employees must be included in the same bargaining unit as permanent employees
• Public agencies can be jointly liable for unpaid wages resulting from a contract with property services or long-term care industries
• Employers must adopt a workplace violence prevention plan and maintain a violent incident log
• Paid sick leave entitlement is expanded to five days or 40 hours
• Rebuttable presumption of retaliation is established for adverse employment action against whistleblower within 90 days of protected activity

Assembly Bill 1484 (Zbur): Temporary employees must be included in the same bargaining unit as permanent employees

In response to the increased hiring of temporary employees by public agencies, AB 1484 aims to put temporary workers on equal footing with permanent workers represented by a union.  In many respects, public agencies will now be required to treat temporary workers equally when it comes to labor relations.  

Specifically, this new law requires that public employers recognize the following rights of temporary employees:

• Upon request by the union, to be included in the same bargaining unit as permanent workers
• Upon request, to have their terms and conditions of employment negotiated in a single MOU
• Upon hire, to be provided with a job description, wage rates, eligibility for benefits, anticipated length of employment and procedures to apply for open, permanent positions
• To have this same information provided to the worker’s union representative within five business days of hire 

Additionally, when public agencies make the required disclosures to union representatives pursuant to Government Code Section 3558 (e.g., job title, department, work location, contact information), this information must now include the anticipated end date for each temporary employee, or the actual end date if the worker was released since the prior list was provided.

Workers who fit the broad definition of “temporary employees” include seasonal workers, “extra help” employees, per diems and any other type of worker “hired to perform the same or similar type of work that is performed by permanent employees represented by a recognized employee organization.” 

Earlier drafts of the bill sought to give temporary employees access to grievance procedures to challenge disciplinary actions without cause after 30 days of employment. This measure faced strong opposition from many public agencies and agency organizations, including CSDA, Rural County Representatives of California, and the League of California Cities. Fortunately, this requirement was stricken from the bill before the Governor signed it.

The bill has teeth, as any violations are actionable as an unfair practice charge before the California Public Employment Relations Board.

As for the practical effect of AB 1484, SBEMP agrees with the opponents that it will tend to discourage the use of temporary employees because of the increased administrative and financial burdens that it creates for public agencies. Also, placing temporary workers in the same bargaining unit as permanent workers will create asymmetrical interests between workers who are eligible for long term benefits and those who are not.

Public agencies should review the utilization of temporary employees to determine both the financial impact and the effect that these additional requirements might have on existing labor relations. 

Assembly Bill 520 (Santiago):  Public agencies can be jointly liable for unpaid wages resulting from a contract with property services or long-term care industries

The California Labor Commissioner has limited jurisdiction over public agencies and, as a general rule, the Labor Code does not apply to public agencies unless the law states otherwise.  AB 520 extends the reach of the Labor Commissioner to any public agencies that contract with employers in the property services or long-term care industries, defined as follows:

• “Property services” means janitorial, security guard, valet parking, landscaping and gardening services
• “Long-term care” means the operation of a skilled nursing facility, intermediate care facility, certain residential care or retirement facilities, home health agency, or home care organization 

Under existing law, individuals and private entities receiving contracted labor from these industry service providers are jointly liable for unpaid wages and penalties if the Labor Commissioner finds the service provider violated the Labor Code. Now, public employers will be subject to same joint liability as private employers under these circumstances.

Public agencies should carefully scrutinize these service contracts and consider additional oversight of resulting labor practices. To protect against joint liability, SBEMP recommends drafting these labor contracts with appropriate indemnity language and standards for the terms and conditions of employment to ensure a labor contractor’s compliance with the Labor Code.  

Before a public agency can become jointly liable under this new law, it is entitled to notice and a hearing of any claim before the Labor Commissioner. Public agencies are unlikely to have previously handled such a claim, but must now be prepared to respond and participate in the proceedings with legal counsel to defend its interests, which may not always be aligned with the service provider.

Senate Bill 553 (Cortese): Employers must adopt a workplace violence prevention plan and maintain a violent incident log

This bill requires all employers to adopt a comprehensive prevention plan with specific requirements for the procedures that employees should follow to prevent, avoid, respond to, and report incidents of workplace violence. 

It further requires that employers maintain a violent incident log documenting every incident, post-incident response and investigation. The log must contain specific information about the incident including the location, circumstances, persons involved, consequences and contact information for the person completing the log, while omitting any element of personal identifying information sufficient to allow identification of any person involved in a violent incident.

SB 553 applies to most public agencies, but it does not apply to health care facilities, corrections facilities, or law enforcement agencies classified as a department or participating department.

As employers are preparing annual updates to their employment handbook policies, the workplace violence prevention plan should be an area of focus. Drafting the plan itself may be straightforward, but the requirements for customizing and implementing it in the workplace are highly specific and could generate noncompliance if handled incorrectly.

Even after the plan is rolled out, it must be reviewed and updated annually with evaluation of incidents that occurred, as specified.

SB 553 also grants standing to a collective bargaining representative of an employee to seek a temporary restraining order on behalf of an employee, as specified.

Senate Bill 616 (Gonzalez): Paid sick leave entitlement is expanded to five days or 40 hours

This bill increases employee leave entitlement from three days (24 hours) to five days (40 hours). Employers may continue to provide accrual of one hour for every 30 hours worked or implement any other accrual rate, so long as employees accrue no less than 24 hours by the 120th day of employment and 40 hours by the 200th day of employment. 

Employers who use an accrual cap must now increase that cap to 80 hours (10 days) and increase the use limit to 40 hours (five days) per 12-month period. Employers can also continue to front load sick leave which, in our view, tends to be the simplest method and can help avoid making costly mistakes.

Employees subject to a collective bargaining agreement are still exempt from an accrual requirement, and employers cannot require a collective bargaining employee who uses sick days to search or find a replacement worker for those days. As a reminder, employers cannot retaliate against employees who use paid sick leave and California law creates a rebuttable presumption of retaliation if any adverse action is taken within 30 days of a protected activity.

The expansion of paid sick leave requires both policy updates and administrative review to ensure successful implementation when the new law takes effect on January 1, 2024.

Senate Bill 497 (Smallwood-Cuevas): Rebuttable presumption of retaliation is established for adverse employment action against whistleblower within 90 days of protected activity

The California State Legislature has historically recognized a strong public interest in protecting workplace whistleblowers.  Employees are protected from retaliation if they make certain disclosures of information about suspected violations of the law.

An employee filing a lawsuit for unlawful retaliation must ultimately prove causation, i.e., that the protected disclosure was a contributing factor in the employer’s decision to take an adverse employment action against the employee (e.g., termination, demotion or suspension). SB 497 now makes it easier for an employee to prove causation by creating a rebuttable presumption of retaliation when the adverse employment action occurred within 90 days of the protected disclosure.

SB 497 applies this rebuttable presumption to California laws that protect an employee who engages in any of the following activities: disclosing information about suspected unlawful activity to a government agency; reporting suspected violations of the Labor Code; or reporting suspected violations of the Equal Pay Act.

Whistleblower retaliation claims often go to trial and hinge upon who the jury finds more credible.  This new law makes it even more likely that these claims will go to trial and, as such, is expected to increase the cost of defense. SBEMP predicts that the rebuttable presumption will also lead to more retaliation claims being filed.

Now more than ever, employers should have established policies and procedures in place to create proper channels for employees to report suspected unlawful activity. It is crucial that management be trained to recognize and appropriately respond to whistleblowers.

Communication is provided for general information only and is not offered or intended as legal advice. Readers should seek the advice of an attorney when confronted with legal issues and attorneys should perform an independent evaluation of the issues raised in these communications.

Take a look back at previous parts of the 2024 New Laws Series in CSDA eNews for more in-depth overviews of new laws affecting special districts:

Missed Part 1? Read it now:  California Supreme Court Sheds Some Light on California Voting Rights Act Litigation

Missed Part 2? Read it now: Zero Emissions Vehicle Mandate Kicks in January 1, 2024 – Reporting Due April 1

Missed Part 3? Read it now: Infrastructure Package Expands Progressive Design-Build and Design-Build, Streamlines CEQA for Select Projects

Missed Part 4? Read it now: Surplus Land Act Amended Again: Changes Go Into Effect in 2024

Missed Part 5? Read it now: Redistricting Procedural Mandates for Special Districts Added to FAIR MAPS Act