California Love

While this week may have started with a washout, the past few days definitely had us yearning for fairer weather, and, of course, California came to mind (oh yea, there were also some totally gnarly legal developments that came out of Cali too). So, like, this edition will totally center on some recent employment law updates in California that caught our eye, including its new wage transparency law and the recent marijuana-related amendment to the California Fair Employment and Housing Act. But before going (going) back (back) to Cali (Cali . . . ok we’ll stop), let’s stay local and discuss some developments going on in our backyard.

New Jersey Ban on Non-Disparagement Makes it to the Senate

A few months ago we discussed a recent New Jersey decision holding that while confidentiality and non-disclosure agreements for employee discrimination, retaliation, or harassment claims were barred by New Jersey’s Law Against Discrimination (“NJLAD”), the NJLAD does not bar non-disparagement agreements. But, as we warned you, the Legislature did not like this very much and introduced a bill proposing to explicitly bar non-disparagement agreements too.

The bill, A.B. 4521, has passed the New Jersey Assembly and is now on its way to the Senate for consideration. The law seeks to amend the state statute banning non-disclosure agreements from employment discrimination, retaliation, or harassment-related settlements by also banning non-disparagement agreements. We will keep you posted if this bill becomes law, but in the meantime, don’t get too attached to those non-disparagement agreements . . .

California Joins New York City (and Others) in Requiring Wage Transparency

As of September 27, 2022, California joined the growing list of cities and states requiring wage transparency (Colorado, Connecticut, Maryland, Washington, and New York City, to name a few), and enacted its own pay transparency bill into law. Pursuant to the law, employers with 15 or more employees are required to disclose to both job applicants and, upon request, current employees, an hourly wage or salary range that the employer “reasonably expects to pay for the position.” This information must be included in job postings as well.

Similar to other wage transparency laws, California’s law requires that employers maintain records of employees’ job titles as well as wage and hourly rate history during the employee’s employment and for three years thereafter. Employers who violate the law are subject to penalties between $100 and $10,000 per violation. Employers are also provided a safe harbor position for first-time violators, allowing them to fix their job postings without penalty.

Not planning on opening shop in California anytime soon? Well then let us take this opportunity to remind those of you in NYC that the City’s new wage transparency law officially goes into effect on November 1, 2022.

California Off-Duty Conduct and Marijuana

Remember when we noted that you should revisit your marijuana-related policies in light of the legalization of marijuana in New Jersey and subsequent surge of marijuana dispensaries? Well, looks like California is facing the same issue head-on. Effective January 2024 (sadly, not as far away as you’re probably thinking), California’s Fair Employment and Housing Act will be amended to ban discrimination against employees or job candidates who lawfully consume cannabis outside of work. The new law not only explicitly makes it unlawful for an employer to discriminate against an employee or job candidate simply because they use marijuana, but it also makes it unlawful for an employer to discriminate against an employee or candidate as the result of a positive drug test that only measures the presence of “cannabis metabolites,” instead of the active THC chemical (which would indicate present impairment, #science).  

. . . still not planning on opening shop in California anytime soon? Well then let us also remind you of New York Labor Law Section 201-D, otherwise known as the lawful off-duty conduct law. Similar to the California law discussed above, Section 201-D addresses discrimination against individuals who engage in certain, lawful, off-duty activities . . . such as smoking marijuana! That’s right, New York’s Marijuana Regulation and Taxation Act was amended to make it Claritin clear that cannabis (used in accordance with New York State law, of course) is a legal consumable product, and as such, employers are prohibited from discriminating against employees based on their off-duty puffin’. Make sure those policies are up to snuff!  

Hope you’re ready for the next episode. Until then, as always, if you’ve got questions – you know we’ve got answers.

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