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► California: Pot, Fast Food, Money, And Outer Space
New laws have recently been passed and signed on a variety of employment related topics. As Governor Gavin Newsom and the California Legislature moved to distinguish Sacramento from the nation’s other state capitals, some of these laws are pretty strange.
S-P-A-C-E F-O-R-C-E
Employers currently have a wide variety of duties when dealing with benefits provided to or the return of active or reservist members of the U.S. armed forces from leave. In one of the simpler and more understandable new statutory provisions, a new law introduced by assembly member Al Muratsucci and recently signed by Governor Newsome expands the definition of “armed forces” beyond the current law (Army, Navy, Air Force, Coast Guard, and Marines) to now include the newest branch, the U.S. Space Force. So please make sure that you don’t discriminate on that basis.
Not So Fast, Food Regulators!
Speaking of legislation affecting a particular class of employees, this month Governor Newsome also signed the FAST Recovery Act, establishing a fast-food council within the Department of Industrial Relations, which would establish minimum standards on wages, working hours, and other working conditions for fast-food restaurant workers.
The legislation describes the fast-food sector as being rife with abuse and fast-food workers the largest and fastest growing group of low-wage workers in California. The legislation also makes some findings not readily found on the record—that fast-food operators do not protect against workplace violence, deprive workers from accessing personal protective equipment, demand that employees work when they are sick, and actively hide COVID-19 cases. Meanwhile, says the legislation, “fast food companies have profited during the pandemic while California’s half million fast food workers have been hard hit, both medically and financially.”
In addition, a new very broad whistleblower claim is being created in favor of fast-food workers, prohibiting discrimination, retaliation, or harassment because the employee has made a complaint, disclosed information, or testified about the fast-food restaurant operator’s compliance with safety, health, or other regulatory requirements—to the public, any person with authority over the employee, the media, the legislature, a governmental entity, or a community-based organization.
Similarly, employees can’t be discriminated or retaliated against if they refuse to perform work in the restaurant because they have reasonable cause to believe there are practices that would violate worker or public health and safety laws, regulations, or any other provision of the California health or labor codes.
Those are daunting provisions, and you might think you can save yourself because it will be difficult for employees to prove they were fired for an illegal reason. Not so, because the statute also creates a rebuttable presumption of unlawful discrimination or retaliation if the employee is fired or subject to any other adverse action within 90 days after making complaint or engaging in refusal to work! In other words, as long as an employee mixes in at least one complaint every 90 days, the burden will always be on the employer to show the firing wasn’t illegal.
According to the Los Angeles Times, the fast-food industry is taking a page out of the Uber playbook and will soon launch an initiative campaign to override this legislation. Brace yourself for a few hundred dueling hamburger commercials coming to a TV set near you.
Cannabis Users: The Newest Protected Class
But the strangest bill recently signed by the governor remains the newest addition to the antidiscrimination laws found in our government code, which should make it unlawful for anybody to discriminate in hiring, termination, or any other terms or condition of employment based on a person’s use of cannabis off the job and away from the workplace.
The bill does create some exceptions to its coverage, such as employees in the construction trades, employees and applicants who require a federal background investigation or clearance, or those covered by existing state or federal laws requiring employees to be free of controlled substances as a condition of employment.
The bill itself recognizes that it is almost impossible to differentiate between an employee who “arrives and the worksite high or impaired” and that most tests conducted for cannabis show only the presence of the “non-psychoactive cannabis metabolite and have no correlation to impairment on the job.”
So how does an employer differentiate between an employee who was high on the job or an employee who smokes pot while off-duty, but the presence of the cannabis metabolite remains in a system? The legislation provides a science fiction answer claiming that “employers now have access to multiple types of tests [including] impairment tests, which measure an individual employee against their own baseline performance and tests that identify the presence of THC in an individual’s bodily fluids.” Hunh? And if an employee’s performance isn’t as good as their baseline performance, how do you prove that it’s the result of THC, and not just for T, or the employee simply is having a bad day?
Among the most intriguing things about this new statute, authored by assemblyman Dr. Bill Quirk of Hayward, is the political power of California’s pot users. There’s no provision of law that protects an alcoholic the way this bill protects marijuana users. For all practical purposes, unless you have evidence of any procedurally sound failed drug test (which can only be taken in the post-hire context with reasonable suspicion), you might be better off not relying on a marijuana-related interment at all, for fear the failed attempt at the defense will run headlong into this new legislation.
New Workplace Wage and Discrimination Report
Finally, employers will have a new reporting requirement with a bill signed by the governor this week that will apply to tens of thousands of California employers with 100 or more employees. Those employers will have to begin disclosing details about pay by mid-May 2023 and every mid-May thereafter.
The motivations behind the bill are to seek transparency on divergence and pay between men and women and among minority employees and to highlight the gap between the highest and lowest paid employees in an organization. The data being sought is extensive, to be given separately for each location for a multilocation employer. They include:
- The number of employees by race, ethnicity, and sex who are (1) executive or senior managers, (2) first- or midlevel officials and managers, (3) professionals, (4) technicians, (5) sales workers, (6) administrative support, (7) craft workers, (8) operatives, (9) laborers and helpers, and (10) service workers;
- The number of employees by race, ethnicity, and sex whose annual earnings fall within each pay band; and
- Within each job category and each combination of race, ethnicity, and sex, the median and mean hourly rate.
Some employers already have most of this data through the combination of EEO-1 reports and other reporting obligations. But many employers will find this report a burdensome task.
Bottom Line
California isn’t slowing down in the obligations it is placing on employers. As Gavin Newsome crisscrosses the country to affirmatively show how different California is, he can point to bills such as these to prove that Sacramento touts itself as a reliable friend of the worker, as he postures himself for a presidential campaign sooner or later in the next decade.
By Mark I. Schickman. Mr. Schickman is editor of the California Employment Law Letter and the founder of Schickman Law in Berkeley, California. Mark has successfully litigated almost every type of employment case in the courts before juries and administrative agencies and on appeal and is a popular and engaging trainer providing employment advice to employers across the country.
[11/2022]
