Top California Bills for Employers to Watch in 2022

[Updated]

The California Legislature considered fewer bills during the prior two sessions—due to the COVID-19 pandemic—but lawmakers in the state appear to be picking up the pace in 2022, and they are currently reviewing several key bills that would impact the workplace. 

"As COVID cases fortunately continue to drop, the California Legislature has removed COVID-enacted limitations on the number of bills being considered, meaning it is business as usual in Sacramento," said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego.

Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento, also noted that 2022 is shaping up to be a "return to normal" for California employment legislation after two down years.

Many legislative years seem to have a theme, Kalt noted, such as the focus on sexual-harassment-prevention measures and COVID-19-related employee protections in prior years.  

What's the theme for this year? California lawmakers seem focused on the interaction between workplace technology and employee privacy rights, Kalt observed. 

Some additional bills that have recently received media attention would provide workplace protections for cannabis users and require large employers to shift to a 32-hour workweek or pay overtime premiums.

"There are a number of bills that are continuing to make their way through Sacramento that remain problematic for California employers," said Karen Tynan, an attorney with Ogletree Deakins in Sacramento. "As usual, these are not bills that are helpful to employers but instead … increase data or information burdens, require payroll increases, or push back on employer protections."

Here are the top workplace-related bills employers should be watching.

The Workplace Technology Accountability Act

AB 1651 is "a sweeping proposal aimed at workplace monitoring, technology, and automated decision-making and [artificial intelligence]" and "will be a big point of discussion this year," according to Ebbink.

AB 1651's synopsis says the bill "would confer the right to workers to know, review, correct and secure data collected from them by their employer and would limit the ability of an employer to use that data beyond specified purposes." Among other requirements, employers would have to "prepare and publish impact assessments for the use of various technology."

However, as of May 4, this bill is not moving this year.

California Privacy Rights Act Amendments 

SB 1454 (and several other bills) would extend exemptions to the California Privacy Rights Act for employee and business-to-business data. The exemptions are currently set to expire on Jan. 1, 2023. If the exemptions expire, "employee data would be subject to the entire panoply of rights and responsibilities under the CCPA [California Consumer Privacy Act]," Ebbink explained. Extending those exemptions or making them permanent will be a big focus for the Legislature this year, he said.  

Biometric Data Collection

Lawmakers in Sacramento are also considering new guardrails regarding employer collection of biometric information, Kalt noted.

SB 1189 would require private entities that collect biometric information to take specific steps to protect such data. If approved, the bill would "significantly expand privacy and security protection for biometric information in California and likely influence additional legislative activity in the U.S.," said Joseph Lazzarotti, an attorney with Jackson Lewis in Berkeley Heights, N.J. "It could also open the door to a wave of litigation, similar to what organizations subject to the [Biometric Information Privacy Act in Illinois] currently face."

Employment Protections for Cannabis Users

AB 2188 would place limits on workplace drug-testing rules by providing additional protections for cannabis users. Under the measure, employers would not be permitted to discriminate against employees for "use of cannabis off the job and away from the workplace" or for having "nonpsychoactive cannabis metabolites in their urine, hair or bodily fluids." 

Ebbink noted that California lawmakers have considered a number of proposals in the past regarding employment discrimination and cannabis use, but none of those bills had advanced. AB 2188, however, was recently amended to exclude protections for employees in the building and construction trades, which may signal this bill could advance further than prior efforts.

Employee Pay Data

AB 2095 would create a new program requiring employers with more than 1,000 California employees to submit data to the state about workplace safety and employee pay, schedules and benefits. 

"Ultimately, the aim is to reward exemplary employers that are treating their workers well," according to the bill's sponsor, Assembly Member Ash Kalra, D-San Jose.

Tynan, however, said, "The burden on California employers, with little return or benefit, would be enormous."

Another bill, SB 1162, would require private employers with at least 100 workers who are employed through a staffing agency or labor contractor to submit pay data reports to the Department of Fair Employment and Housing. The bill would also require employers to maintain and share pay scale data or potentially face civil penalties.

The Four-Day Workweek

"AB 2932 is probably the most problematic for large employers with more than 500 employees," Tynan said. This bill would shift the definition of a "workweek" for such employers from 40 hours to 32 and create an additional overtime requirement for work performed in excess of 32 hours. Under the bill, nonexempt employees would need to be paid the same amount for 32 hours as they were being paid for 40.

"This bill has gotten a lot of attention and 'buzz' but has not been set for hearing yet," Ebbink noted. "It remains to be seen whether this will actually move or is just an interesting discussion piece."

As of May 4, this bill is not moving this year.