Leading up to the October 15th deadline, Governor Brown signed and vetoed a number of labor and employment bills that had made it to his desk. These bills will go into effect on January 1st, 2018, unless otherwise noted.
Here is the promised update on the new California employment laws to take note of:
1. Ban the Box
Assembly Bill (AB) 1008 bans questions about a job applicant’s criminal history. This bill will go into effect on January 1st, 2018. Once in effect, employers can consider an applicant’s criminal record only after making a conditional job offer.
Under the new law, any employer that refuses to hire an applicant due to his or her conviction history will be required to conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that would justify denying the applicant the position.
The law applies to any employer with 5 or more employees. It does not apply to:
- A position for which a state or local agency is otherwise required by law to conduct a conviction history background check;
- A position with a criminal justice agency;
- A position as a Farm Labor Contractor; and,
- A position in which an employer is required by any state, federal, or local law to conduct a criminal background check for employment purposes or to restrict employment based on criminal history
2. Prohibition on Salary History Inquiries
AB 168 will prohibit an employer from asking for a job applicant’s salary history information. This new law will also prohibit consideration of salary history as a factor in making hiring decisions, even if the information is volunteered by the applicant. Employers can consider an applicant’s prior salary information when determining the salary for that applicant, only if the applicant volunteers the information.
California employers were already precluded from using an applicant’s salary history to justify a pay disparity, but this addition to the current law will create potential liability for employers if they ask about salary history when interviewing, extending job offers, and/or when deciding how much to pay applicants.
The law will go into effect on January 1st, 2018 and will also require an employer to provide a pay scale for a position to an applicant, when the request is determined to be a reasonable one. Salary history is detailed to also include any compensation and benefits data. The law also does not define “pay scale”.
3. Small Business Parental Leave
Senate Bill (SB) 63 will require small employers—those with 20-49 employees in a 75 mile radius—to provide unpaid parental leave for the purpose of bonding with a new child. Small employers were previously exempt from this law.
Employees will only be eligible for leave provided that they have worked for the employer for at least 12 months and have worked at least 1,250 hours in the past 12 months. If both parents work for the company, the employer can require the parents to take no more than a combined 12-week leave.
Employers will be required to continue to pay their regular share of healthcare premiums while employers are on parental leave, however, under certain circumstances employers may be able to recover the premiums when the parent-employee does not return to work following the leave.
4. Immigration Worker Protection Act
AB 450 will prohibit employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent can provide a judicial warrant. This law does not prohibit inviting immigration officers into nonpublic areas, where no employees are present, in order to verify the existence of a warrant.
Also, unless required by federal law, this law will prohibit an employer from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order. This prohibition will not apply to I-9 Employment Eligibility Verification forms and other documents for which a notice of inspection has been provided to the employer.
Furthermore, this law will require employers to provide notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection. The Labor Commissioner must create a template for these purposes and make it available by July 1, 2018. Employers who violate the provisions of the Act may face civil penalties of up to $10,000 per violation.
5. Sexual Harassment Prevention Training
SB 396 will expand the requirement that employers provide sexual harassment training to supervisors. Currently the law requires employers with 50 or more employees to provide sexual harassment and abusive conduct prevention training every two years, or within six months of an individual’s assumption of supervisory duties. This bill expands the training to include harassment based on gender identity, gender expression, and sexual orientation. Covered employers must also post a DFEH-approved poster for all employees to review regarding transgender rights. (English poster can be found here and the Spanish here).
Poms Connects is currently updating their recorded webinars and CBT courses to comply with this law. Once they are updated, a notification will be sent out.
6. Construction Contractor Wage Liability for Subcontractors
AB 1701 is a law which will hold construction contractors liable for the wage and hour violations of their subcontractors. As a result, a direct contractor making or taking a contract that has been entered into on or after January 1, 2018 for the erection, construction, alteration, or repair of a building, structure, or other private work will be liable for any debt owed to a wage claimant incurred by a subcontractor at any tier acting under the contractor. This law also gives contractors the right to demand inspection of a subcontractor’s payroll data in order to ensure compliance with wage and hour obligations.
The contractor’s liability under the new law will extend only to any unpaid wage and fringe or other benefit payments or contributions, including interest owed. The liability won’t extend to any penalties or liquidated damages. The state labor commissioner and/or a wage claimant may bring a civil action against a direct contractor to collect wages owed.
7. Labor Commissioner Retaliation Investigations
Finally, Governor Brown signed into law SB 306, which will authorize the Division of Labor Standards Enforcement (DLSE) “to commence an investigation of an employer, with or without a compliant being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner.” Before this bill the agency could only take action upon a receipt of an employee complaint.
This law authorizes the labor commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for injunctive relief. If an employer discharges or imposes adverse action on an employee for claiming that the employer retaliated because the employee asserted his or her rights, the law would require courts to “order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.” The injunctive relief remains in force until the agency completes its review or issues a citation. The injunctive relief would not prohibit the employer from disciplining or discharging the employee for conduct that is unrelated to the claim for retaliation.
The DLSE can also impose penalties up to $20,000 for any “willful” refusal to post a notice to employees, to hire, promote or otherwise restore a current or former employee to a position, and/or to comply with a court order to stop the offending activity.
This 2017 California Legislative Session has brought many changes to employers both small and large. After carefully reviewing the new obligations, employers should set a plan of compliance, and prepare for enforcement of these new requirements.
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