2023 Labor and Employment UPDATE

by Audrey Gee, David Marchiano and Marissa Boyd

In a time of great social change, 2023 brings some key new equity-focused employment legislation:

Reproductive Rights

In the wake of the United States Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, 597 U.S. ___, 142 S.Ct. 2228 (2022) last June (overturning Roe v. Wade, limiting the federal constitutional right to abortion, and leaving legislation on such reproductive rights to the states), California amended its State Constitution to explicitly provide for the right to reproductive freedom and abortion.

Dobbs also spurred California to further expand protections for reproductive rights explicitly in the workplace:

• SB 523: Beginning on January 1, 2024, the new “Contraceptive Equity Act” will, among other things: (1) amend the Fair Employment Housing Act (the “FEHA”) to prohibit discrimination against employees and job applicants for their “reproductive health decision-making”; (2) require that employer-provided healthcare plans cover overthe-counter contraceptives and prohibit those plans from imposing cost-sharing methods, such as deductibles or copayments, for vasectomies.

• AB 2223: Beginning on January 1, 2023, a person can no longer be subject to criminal or civil liability based on their actions or omissions with respect to their pregnancy or actual, potential, or alleged pregnancy outcome, or be liable for aiding a pregnant person in exercising their rights under the Reproductive Privacy Act.

• AB 2134: Beginning on January 1, 2023, if a religious employer provides healthcare coverage that does not cover abortion and contraceptives, employees must be provided with written information about the abortion and contraceptive services that may be available to them through the California Reproductive Health Equity Program.

Pay Data Reporting

Over the past years, California has made efforts to address pay equity in gender and race, through legislation such as Labor Code section 432.3, which prohibits asking for applicant’s prior salary history and Government Code section 12999, which requires providing pay scales upon an applicant’s reasonable request, and is now mandating more transparency in pay scales. Beginning on January 1, 2023, SB 1162 significantly expands these pay scale disclosures and pay data reporting obligations and requires:

• All employers, upon request, to provide a pay scale to current and prospective employees.

• Disclosure of pay scales in job postings (for companies with 15+ employees).

• The wage data reports (for companies with 100+ employees) (including employees through labor contractors) must include the median and mean hourly rate for each combination of race, ethnicity, and sex within each job category for employees (reporting requirements begin May 2023).

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