Cal-Peculiarities: How California Employment Law is Different 2022 Edition

14 | 2022 Cal-Peculiarities ©2022 Seyfarth Shaw LLP  www.seyfarth.com  Removing IWC licenses to pay less to individuals with disabilities. The Industrial Welfare Commission is prohibited from issuing special licenses that authorize the employment of a person with a disability for less than the minimum wage. (See § 7.2.)  Warehouse distribution center quotas. Employers with over 100 California employees at a single warehouse distribution center—or with 1,000 or more California employees at multiple warehouse distribution centers—must now give each nonexempt employee (including employees of third-party employers, temporary services, or staffing agencies) a written description of any quota that applies. (See § 7.22.3)  Hospitality preferential hiring for pandemic layoffs. Certain hospitality employers—hotels, private clubs, event centers, and airport hospitality services—and their successor employers, must offer preferential hiring to employees laid off because of the pandemic. (See § 7.23.2.)  Emailing required postings to employees: Employers may now distribute required notices and posters as an email attachment, though there remains a duty to physically display the required posting. (See § 9.2.1)  Cal/OSHA citation authority expansion and new protection. There are now two additional categories of violations for which Cal/OSHA can issue citations: (1) “Enterprise-wide Violations” and (2) “Egregious Violations; and, new agricultural workers wildfire smoke protections. (See § 14.18)  AB 5 Exemptions: Newspaper distributors and carriers and manicurists: Exemptions from the application of the ABC test for independent contractor status for newspaper distributors working under contract with a newspaper publisher and for newspaper carriers and for licensed manicurists have been extended to January 1, 2025. (See § 19.7.)  Retailer burdens. Large retail department stores now must display a “reasonable selection” of gender- neutral items for children; and retailers are now jointly and severally liable for brand guarantors and garment manufacturers. (See § 20.10.) Judicial Developments Here are highlights from decisions rendered in 2021 and 2022 by courts applying California law, up until the time this volume went to press (June 2022). Judicial Developments Create More Challenges for Employers During 2021 and 2022 California courts continued the general trend of expanding employer liability to employees.  Defending whistleblower claims requires clear and convincing proof of legitimate reasons. The California Supreme Court held that an employer’s burden to refute an employee’s retaliation claim under Labor Code section 1102.5 must be analyzed under the evidentiary framework established by Labor Code section 1102.6, rather than the framework established in McDonnell Douglas Corp. v. Green (1973). (See § 3.5.1.)  No part of a PAGA claim is subject to arbitration. The Court of Appeal held that a PAGA plaintiff may not be compelled to arbitrate whether the plaintiff is an aggrieved employee. (See § 5.2.4.)