By Margot Roosevelt
Heading into 2022 — and a potential third year of the COVID-19 pandemic — California officials faced a familiar-feeling dilemma.
Help businesses recover from an economic roller coaster by quashing burdensome new mandates?
Or rescue workers with paid sick leave, higher wages and crackdowns on corporate bad behavior?
Given the devastating effects of the last two years on both workers and businesses, the answer had to be all of the above.
Labor advocates point to new measures taking effect in January to toughen enforcement of workplace health and safety rules, outlaw piecework in the garment industry and rein in unsafe speed quotas at warehouses.
“The pandemic created a new consciousness that many men and women go to work every single day and take big risks,” said state Sen. Maria Elena Durazo (D-Los Angeles). “Not just first responders but grocery workers, farmworkers, truckers and garment workers who make protective masks.”
On the other hand, “A lot of proposed mandates on businesses were stopped,” said Jennifer Barrera, president of the California Chamber of Commerce. “There was a level of sensitivity of imposing too much on employers when they were challenged because of the pandemic.”
Just two of the 25 measures the chamber labeled as “job killers” — those most opposed by large employers — made it to Gov. Gavin Newsom’s desk: the garment worker measure, which he signed, and a bill allowing farmworkers to vote by mail in a union election, which he vetoed.
One of the most far-reaching initiatives goes back four years, and is gradually boosting California’s hourly minimum wage to more than twice the federal $7.25 level. Beginning Jan. 1, the statewide floor rises to $15 for employers with 26 or more employees and to $14 for those with 25 or fewer.
Many cities have raised pay even faster, including Los Angeles, where a $15 minimum wage for all employers took effect in July.
Among the measures enacted over the last year, here are some of the most significant:
Paid sick leave
Californians are guaranteed just three days of paid sick leave for any illness — a level widely deemed inadequate during a pandemic. A bill boosting it to five days failed to gain traction, but a limited COVID-related measure was renewed in April, Senate Bill 95, which gave workers two weeks of paid leave if they were infected or needed to care for sick relatives or for children kept out of school.
Fiercely opposed by businesses, it expired Oct. 1, along with federal tax credits that softened the burden.
Under a separate California Division of Occupational Safety and Health emergency rule, renewed Dec. 16, some workers can be paid for 10 days if they get sick or exposed to the virus and must therefore be excluded from the workplace. But leave to care for sick relatives or out-of-school children isn’t covered, and they don’t get paid if the employer can show they were infected outside their job.
With the Omicron variant raging, paid sick leave will be among the first contentious legislative battles next year. As hundreds of thousands of workers remain unvaccinated, sick leave may become ensnared in the politics of vaccination mandates.
“If an individual doesn’t choose to get vaccinated or boosted, should they be having two weeks of time off?” Barrera asked. “We need to take that into consideration.”
An explosion of COVID-19 infections across large companies such as supermarket chains,meatpackers,fast-food outlets and warehouses highlighted the weak penalties of California’s worker safety laws. And workplace safety agency Cal/OSHA, with just one inspector per 103,000 workers, has said it is too understaffed to visit 80% of sites where workers complain of safety violations.
Senate Bill 606, mirroring a similar federal law, allows California inspectors to issue “enterprise-wide” citations to companies with a pattern of violations, despite not having visited every work site in person.
Under earlier rules, an employer with multiple workplace outbreaks was typically cited for only a single violation. Traditionally, Cal/OSHA has preferred to negotiate with employers rather than issue fines. But low penalties failed to deter companies from flouting the rules, said Sen. Lena Gonzalez (D-Long Beach), the bill’s author.
The new law requires the agency to label some employers as “egregious” when, for instance, workers are killed or are hospitalized as a result of “willful” safety violations. The agency must stack citations for each affected worker with fines of up to $134,334 each.
“You had large employers just ignoring the public health guidance on social distancing, masking and other measures,” said Eduardo Martinez, legislative director of the California Labor Federation. “As a result, a lot of workers got sick and many of them died.”
But SB 606 applies to all workplace safety situations — not just those involving the coronavirus.
“We come through a pandemic, where the majority of our business community is hanging on for dear life,” said Assemblyman Heath Flora (R-Ripon), who opposed the bill. “COVID was used to push an agenda that labor groups have been unable to get done before.”
When employers settle workers’ claims of discrimination or harassment, they traditionally have sought to protect their reputations by forcing victims to sign confidentiality agreements before collecting severance or settlement payments.
In 2018, as the #MeToo movement gathered strength, the Golden State outlawed nondisclosure agreements to settle most cases of sexual discrimination, harassment or assault. Backers cited abuses by powerful executives, including producer Harvey Weinstein and Fox News Chairman Roger Ailes, cases in which secret agreements may have enabled harassment to continue.
Now Senate Bill 331, labeled the Silenced No More Act, expands protections, outlawing confidentiality agreements for settlements involving any form of discrimination or harassment, including those based on race, ethnicity, religion, age, sexual orientation, medical conditions and disability.
The new law was spurred in part by Ifeoma Ozoma, a Black executive at Pinterest, who complained about race and sex discrimination at the company and was forced to sign an agreement to remain silent as a condition of settling her claims.
“SB 331 will empower survivors to speak out — if they so wish,” said the author, Sen. Connie Leyva (D-Chino). “They can hold perpetrators accountable and hopefully prevent abusers from continuing to torment other workers.”
A coalition of 13 trade associations led by the Chamber of Commerce initially argued the bill would hurt workers by discouraging employers from offering severance payments. But opponents stood down after several amendments softened the bill’s effects, including a provision ensuring employers’ ability to protect trade secrets.
Southern California is home to more than 45,000 garment workers, the most in any U.S. state. They have traditionally been paid by the piece — 8 cents to stitch a sleeve, for instance, or 14 cents to attach a label. Depending on how fast they work, the pay often fails to equal the minimum wage.
Giant retailers such as Ross Dress for Less, T.J. Maxx and Forever 21 have set wholesale prices for their manufacturers so low that subcontractors can’t make a profit if they pay legal wages, according to federal investigators. And garment workers, many of whom are undocumented, are often reluctant to report unsafe conditions, according to Los Angeles’ nonprofit Garment Worker Center.
Senate Bill 62, spearheaded by Durazo, holds retailers jointly liable along with their suppliers for wage theft and other labor violations in their supply chains, even when garments are made for multiple brands. And it requires manufacturers to pay by the hour, outlawing the piece-rate system.
In signing the bill, Newsom said it protects “marginalized low-wage workers, many of whom are women of color and immigrants…. We are committed to having their backs as we work to build a stronger, more inclusive economy.”
But retailers warn that the measure could move more jobs to Latin America and Asia, where wages are far lower. Companies are “now going to be held liable for any wage and hour violations even though they may not have had control over them,” the Chamber of Commerce’s Barrera said.
A broader issue is the growing trend of imposing joint liability across ever more industries. Earlier California bills made construction companies and businesses using janitorial, gardening and security services jointly responsible for subcontractor violations. And a proposed bill to make fast-food companies jointly liable for franchisees’ infractions is expected to spur a legislative battle in 2022.
The pandemic turbocharged California’s warehouse workforce, which has doubled to more than 200,000 employees in five years, as consumers switched to ordering products online.
With Asian imports flowing through Southern California ports, the Inland Empire is now the nation’s largest warehouse center and Amazon its largest employer.
Amid reports of skyrocketing injury rates, especially driven by Amazon’s “time off task” high-tech surveillance and speed quotas, Newsom signed the nation’s first law regulating workplace productivity controlled through artificial intelligence, a fast-spreading trend.
Assembly Bill 701, written by Assemblywoman Lorena Gonzalez (D-San Diego), outlaws warehouses’ use of algorithms that disrupt rest periods, bathroom breaks or compliance with health and safety laws.
Companies must disclose production quotas and work speed metrics in writing to employees and government agencies, along with penalties for failing to meet them.
The law protects workers from retaliation for reporting unsafe quotas and allows them to seek redress in court.
“Hardworking warehouse employees who have helped sustain us during these unprecedented times should not have to risk injury or face punishment as a result of exploitative quotas that violate basic health and safety,” Newsom said in signing the bill.
Business groups opposed the measure. “There are already laws on the books dealing with rest breaks, bathroom and meal breaks,” Flora said. “This law opens a whole new avenue for frivolous lawsuits.”
During the pandemic, as tourism dried up, business travel was curtailed and office employees worked remotely, hundreds of thousands of workers were laid off from hotels, janitorial companies, airport concessions, sports arenas and concert halls.
Unite Here and the Service Employees International Union, which represent many workers in those industries, warned that companies would use the pandemic as an excuse to replace veteran employees with cheaper workers. They pushed for “a right of recall.”
Senate Bill 95, which took effect in April, requires companies in those sectors, once they begin hiring after pandemic-related layoffs, to offer jobs to their former workers based on seniority before replacing them.
Similar measures are in force in the city and county of Los Angeles, Santa Monica, Pasadena, Glendale and Long Beach.
Assembly Bill 286 forbids food delivery companies such as DoorDash, Grubhub, Postmates, Instacart and UberEats from retaining tips that were meant to go to their workers.
The measure comes in the wake of lawsuits against tech platforms accused of stealing tips.
In a court settlement last year, DoorDash paid $2.5 million for using customer tips to fund its base operations in the District of Columbia. Point Pickup — which delivers for Walmart, Kroger and other firms — has also been accused of dipping into customers’ tips to cover guaranteed pay for its gig workers.
In February, Amazon paid $61.7 million to settle Federal Trade Commission charges that it withheld tips from 140,000 Flex drivers nationwide.
Under AB 286, delivery companies have to disclose their fees to customers. They will be prohibited from marking up the prices of food and beverages they deliver — a practice that restaurants say has cut into their slim profits, even as the pandemic has crippled their businesses.
By law, disabled workers may be paid less than the federal minimum wage of $7.25 an hour. Advocates say the practice encourages hiring of workers with mental or physical disabilities, but opponents call it unfair exploitation.
Under a new law, Senate Bill 639, no new sub-minimum-wage licenses will be issued for employers beginning in January. Existing licenses may not be renewed after 2024.
Sheltered workshops such as those operated by Goodwill Industries employ more than 5,000 Californians with disabilities. Some workers are paid as little as $2 an hour, said Durazo, the bill’s author.
In recent years, Alaska, Maryland, Nevada, New Hampshire, Oregon and Texas have made it illegal to pay workers with disabilities less than minimum wage.