OSHA has never had set policies on whether or not companies can bar workers from having a cell phone while working. Some employers don’t seem to care as long as it doesn’t affect productivity, but others have outright bans in place and require workers to keep them in a locker or leave them in a car.

On September 29th, Governor Newsom signed a bill that makes it illegal for an employer to prevent workers from using cellphones during an emergency or from leaving the workplace if they feel it’s unsafe. SB1044 prohibits employees from taking action or threatening action against any worker who leaves a workplace the worker feels is dangerous. It also bars employers from blocking access to mobile devices in three situations.

• The worker is looking for updates on an emergency.
• The worker is calling emergency services.
• The worker is talking to another, such as a family member, to assess their safety.

Workers are required to tell their employer that they’re going to be making a call or calls and why they’re making them, providing it’s safe to tell them. If it’s unsafe, get your phone or leave and tell them when it’s safe. These rules apply to both private businesses and government positions.

What Constitutes an Emergency?

What does SB1044 consider an emergency? It could be a natural disaster like an earthquake, wildfire, or mudslide. It can also be a criminal act like a school or workplace shooter, a robbery, or a building fire. Health pandemics like COVID would not have been considered an emergency or valid use of accessing a phone during the work day.

Some People Are Not Allowed to Evacuate

While most people could evacuate in a qualifying emergency, there are some exceptions. Workers in a nursing home, nuclear plant, military base, or health care facility cannot just leave. Often, the building must be safely cleared of other patients or employees as directed to ensure no one is accidentally left behind or abandons his or her post as an essential worker.

Even essential workers are allowed to use a cell phone to assess what’s going on. They’re allowed to talk to loved ones about the ongoing risk and ensure they’re safe.

Things You Cannot Do With Your Cell Phone

While you can use your cell phone in an emergency, you cannot use it every day and whenever you want. Abide by the rules. Use the phone during an emergency. Once the evacuation or emergency is over, put your cell phone away again. You may still be energized and want to discuss what just happened, but laws won’t protect you after the emergency situation ends.

At that point, put your phone back where it’s supposed to be stored. If you’re supposed to keep your cell phone in your car, tell your manager you’re putting your cell phone back in your car and do that. Don’t linger or hide in your car on your phone. If you have a work locker, put your phone there instead.

Other Employment Law Changes for 2023

While SB1044 is one of the big changes in the workplace, there are others. Explore the other employment law changes in 2023.

1. Wages and Job Titles

In 2023, employers must keep a list of all job positions, employees, and wage history for those employees for a period of three years. This information must be accessible by the Labor Commissioner Inspector to determine if wage discrimination is a problem.

Along with that law, employers with 100 or more employees have to file a pay data report every year. This report must include the positions and wages for employees and labor contractors and has to be filed with the California Civil Rights Department by the end of the second week of each May.

2. COVID-19 Prevention Non-Emergency Regulations

Cal/OSHA expanded the COVID-19 Prevention Non-Emergency Regulations for two years. There were a few changes to these regulations. Employers no longer have to email or text workers if there is an outbreak in the workplace. Posting a sign is enough now.

If a worker doesn’t come to work due to COVID, companies no longer have to require paid leave. Any time off due to COVID is now unpaid if the worker doesn’t use up sick leave, personal time, or vacation days. 

3. Reproductive Health

The Contraceptive Equity Act adds “reproductive health” to the list of protected classes when it comes to discrimination. If an employee gets an abortion and requests time off for that reason, an employer cannot terminate that woman’s job or refuse to allow time off to get an abortion, IUD, or appointment for birth control.

4. Drug Testing

If an employer requires drug testing, any employee or job applicant who tests positive for cannabis cannot be penalized in any way. Employers are still allowed to ban the use of cannabis at work, and workers who are impaired may be told they cannot work 

There are a couple of exceptions when it comes to drug testing. Employees in construction and building trades or who require security clearance or federal government background checks are not exempt from a positive cannabis result.

5. Minimum Wage Increase

On January 1st, California’s minimum wage increased to $15.50 per hour, though many cities and towns have higher rates. The minimum wage increase applies to all employers, no matter how many employees they have.

6. CalWARN Act Changes

The Cal/WARN act requires employees to give a minimum of 60 days’ notice to any worker affected by a mass layoff or plant closing. On January 1st, the amended act added that any call center that relocates an office containing at least 30% of the company’s workforce also must provide at least 60 days’ notice.

What If You Face a Wrongful Termination?

By early in 2023, some areas of California had received more than two feet of rain in just a few weeks which caused tremendous flooding, tornados, and mudslides. Some areas saw upwards of 40 inches of rain. Storms are ongoing. With the flooding, evacuation orders, power outages, and road closures, many Californian workers need to keep in touch with family and follow weather reports and emergency alerts.

You were doing just that and were terminated for being on your cell phone during work hours. This is no longer allowable with this new law. Talk to your HR department about SB1044. If that doesn’t lead to an apology and the reinstatement of your job, call an employment law specialist.

It’s important that you fight for proper treatment in the workplace. If you experienced a wrongful termination, don’t let your employer get away with it. If you’re reinstated but treated with hostility or even demoted, that’s also illegal. Shegerian Conniff is here to help you understand your rights and next steps. Reach us online to arrange a virtual consultation.