New required workplace rights notice in California

Gov. Gavin Newsom signed the Workplace Know Your Rights Act into law recently. Beginning Feb. 1, and annually thereafter, employers will have to provide stand-alone written notice to their employees describing the employees’:   

• right to workers’ compensation benefits for work-related injuries or illness; 
• right to notice of inspection of the worksite or work records by immigration authorities; 
• right to protection against immigration-related practices against a person for exercising rights; 
• right to organize a union or, in unionized and non-unionized workplaces alike, to engage in concerted activity to improve wages, hours and working conditions; and 
• constitutional rights when interacting with law enforcement, including the rights to due process and against self-incrimination. 

Employers must provide notice to new employees upon hire.

The notice, and each annually updated notice, must describe “new legal developments” the California Labor commissioner deems “material and necessary” in the laws the state Labor and Workforce Development Agency enforces. The notice also must contain a list of the agencies that enforce the underlying rights in the notice. 

Model notice to be posted

The measure directs the Labor Commissioner to post a template notice with the required information on the Labor Commissioner’s website by Jan. 1 that employers may, and probably should, use. The template will be available in at least eight languages besides English, including Spanish, Chinese, Tagalog and Vietnamese.

By July 1, the labor commissioner must post a video advising employees of their rights under the identified areas of the law. A separate video will be posted advising employers of their rights and duties under these areas of the law, “including constitutional rights when interacting with law enforcement at the workplace.”

Manner of providing rights notice

Employers must provide the required notice the way they normally provide their employees other employment-related information, which may include via email or text message if the employee is likely to receive the notice within one business day of its transmission.

Employers must provide the written notice in the language the employer normally uses to communicate with the particular employee and which the employee understands, if the template notice is available in that language, or in English if it is not.

Why new rights notice law enacted

Labor Code section 2810.5 already requires employers to give their employees written notice of, among other things, the employee’s rate of pay and how it is calculated and the name and address of the employer’s workers’ compensation insurer. 

Labor Code section 90.2 requires employers to post notice of an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records conducted within 72 hours of receiving notice of the inspection.

A fact sheet released by the author of the new law, State Sen. Eloise Gomez Reyes, explained the new measure nonetheless was needed because she believes President Trump’s Executive Orders have confused employers and workers about their rights, especially their rights in responding to worksite raids by Immigration and Customs Enforcement (ICE). 

Mindful of ICE activity, the measure also obligates an employer to contact an employee’s designated emergency contact if the employee is arrested or detained at the worksite, where the employee previously has notified the employer to do so. If the employee is arrested or detained away from the worksite while performing their job duties, the employer will have to notify the employee’s designated contact only if the employer has actual knowledge of the arrest or detention.

Penalties for violations

Employers found to violate the law may be fined up to $500 per employee, per violation. For violating the emergency notification provision, an employer may face a penalty of $500 per employee for each day the violation occurs, up to $10,000 per employee. A penalty may be paid to the affected employee or a civil penalty to the government, but not to both the government and the employee for the same violation.

The Workplace Know Your Rights Act will not so much expand California employees’ substantive rights as enhance awareness of some of those rights and who enforces them. Presumably the more employees know these rights, the more employees will exercise them. 

Eaton is a partner with the San Diego law firm of Seltzer Caplan McMahon Vitek where his practice focuses on defending and advising employers. He also is an instructor at the San Diego State University Fowler College of Business where he teaches classes in business ethics and employment law. He may be reached at eaton@scmv.com.