icant prior to receiving a conditional offer of employment. The new law also delineates detailed factors that must be considered, at a minimum, by employers in conducting an individualized assessment of criminal history information, including the degree and permanence of harm inflicted, the age of the individual when the conduct occurred, the amount of time elapsed since various events, and whether a disability or trauma contributed to the conduct. Conducting this individualized assessment will doubtless require information not readily obtainable from publicly available court or related documents; thus, the process for reviewing and considering criminal history information will likely need to be updated. Employees responsible for interviewing should be apprised of this new law. In addition, employers would be well-advised to keep these requirements in mind in connection with corporate transactions.Rebuttable Presumption of Retaliation (SB 497, Cal. Labor Code sections 98.6, 1102.5 and 1197.5). This law creates a rebuttable presumption of retaliation against employees who are subjected to adverse employment action within 90 days of engaging in designated protected activities, including (among other things) complaining about equal pay violations or unpaid wages and reporting suspected unlawful activity in the workplace. The law provides for a civil penalty of up to $10,000 per employee for each violation. While it is always important to consider prior protected conduct when considering adverse action against employees, this law imposes a new bright-line test with respect to timing that should be considered in every instance.Non-Compete Restrictions (SB 699 and AB 1076, Cal. Bus. & Profs. Code sections 16600, 16600.1 and 16600.5). Among other things, these laws expand California’s general employment non-compete prohibitions to cover agreements entered into outside of California. In other words, an individual can enter into a valid non-compete with an employer in another juri

hese protections by further amending FEHA to prohibit employers from inquiring about applicants’ past cannabis use. Importantly, the law exempts from coverage situations in which an employer is permitted under state or federal law to obtain information about an applicant’s prior cannabis use from the person’s criminal history. Moreover, the law does not preempt state or federal laws requiring employers to test applicants or employees for controlled substances. Both SB 700 and AB 2188 will take effect at the start of the new year.Anti-Retaliation ProtectionsCalifornia law provides applicants and employees who engage in certain protected activities with a variety of anti-retaliation protections. SB 497 further expands these protections by creating a rebuttable presumption of retaliation if an employer disciplines or takes adverse action against an employee or applicant within 90 days of the employee or applicant engaging in conduct protected by California Labor Code §§ 98.6, 1102.5, and 1197.5. This protected conduct includes, but is not limited to:complaining about unpaid wages;complaining about unequal pay violations, including being paid at wage rates less than the rates paid to an employee of the “opposite sex”;disclosing the employee’s own wages;discussing the wages of others;inquiring about another employee’s wages;aiding and encouraging another employee to exercise their rights under the law; andwhistleblowing.Employers may rebut this presumption by establishing that there was a legitimate, non-retaliatory reason for the adverse action.Paid Sick LeaveAs we previously reported, this fall, the California Legislature amended and expanded employers’ paid sick time obligations under the Healthy Workplaces, Healthy Families Act (HWHFA). The overall structure of the HWHFA remains the same, but as of January 1, 2024, SB 616 increases the amount of paid sick time that employers must provide— from three days or 24 hours to five days or 40 hours. Importantly, employers may stil

six geese-a-laying and SB 497.Employers know all too well that they are prohibited from discharging an employee or, in any manner, discriminating, retaliating, or taking any adverse action against any employee or applicant for employment because the employee or applicant engaged in protected conduct. If an employer takes such action, the employee shall be entitled to reinstatement and reimbursement for lost wages and work benefits caused by those acts of the employer.California employers also know all too well that a new law is added every year that makes something more difficult for the employers. SB 497 exemplifies this as it creates a rebuttable presumption in favor of the employee's claim if an employer engages in any action prohibited by this provision within 90 days of the protected activity, which includes reporting an employer's wage and hour violations and/or equal pay violations.SB 497SB 497 takes effect on January 1, 2024, and amends California Labor Code Sections 98.6 and 1197.5. It creates a rebuttable presumption of retaliation if an employer takes adverse action against an employee within 90 days of the employee engaging in a protected activity.Protected activity includes, but is not limited to:complaining about unpaid wages,reporting suspected unlawful activity in the workplace, andcomplaining about equal pay violations.What Does This Mean for Employers?It means the employee has no burden of proof at the onset. The employee only needs to show a protected activity and a subsequent adverse action.The employer then has the burden of rebutting the presumption. Under current California law, an employee bears the initial burden of establishing a prima facie case of retaliation, which includes:engaging in a protected activity,suffering from an adverse employment action, andestablishing a causal nexus between the protected activity and adverse employment action.Adding the rebuttable presumption will make it easier for an employee to satisfy the initial burden whe