With the New Year upon us, we brace for the perennial tidal wave of California employment law changes of statutory tweaks, regulatory guidelines, and myriad new judicial decisions that will impact our clients. We must make sure to advise our employer clients of any changes to daily operations and policies, as well as stay abreast of the ever-changing rights of employees in the workplace. The variety of new laws and rules can easily overwhelm employers and, if they are not in compliance, even the most well-advised employers might be ambushed by penalties for policies and practices that might well have been permissible just last year. Several new pieces of legislation deal specifically with the job applications and employers’ hiring processes and restrict what information employers can consider in making hiring decisions and what questions they may ask job applicants. As a result, employers must stay vigilant of changes in the law and constantly revise their hiring documents and processes, as well as training procedures for new and existing staff. Most employers want clear, cut-and-dry advice, so they may easily maintain their compliance. To that end, below is a summary of key new laws that the California legislature has enacted, which take effect on January 1, 2018, along with the best practices to be ready and ensure compliance.
SB 306- Expanding Powers of the Department of Labor Standards (DLSE)
Beginning January 1, 2018 with SB 306, the DLSE will now be authorized to conduct investigations of employers, with or without a complaint being filed, when specified retaliation or discrimination is suspected. The DLSE will also be authorized to petition the superior court for immediate injunctive relief, based on a finding of reasonable cause. Such relief can include court orders that employers must reinstate employees or otherwise reverse their alleged retaliatory actions against employees.
With this new law, the DLSE is empowered to issue citations, directing specific relief to persons determined to be responsible for violations. The law establishes review procedures, including ones for requesting administrative hearings and petitioning for writs of mandate. The law subjects employers, who willfully refuse to comply, to orders to pay civil penalties to the affected employees. The law also allows employees to seek injunctive relief against their employers.
SB 63- Parent Leave Act
Employers with 50 or more employees are already familiar with the requirement to provide family leave to bond with a new baby or child under the California Family Rights Act (“the CFRA”).
Senate Bill 63 amends Section 12945.6 of the Government Code to expand the “baby bonding” protections of the CFRA to smaller employers. Effective January 1, 2018, employers with at least 20 employees will have to provide 12 weeks of unpaid leave to bond with a new child under similar terms to the Federal Medical Leave Act. For an employee to take leave under this bill, the employee must have at least 1,250 hours of service with the employer, during the previous 12‐month period and must have worked at a worksite, where between 20 to 49 employees are employed within a radius of 75 miles.
Parental leave must be taken within one year of the child’s birth, adoption, or foster care placement. The employee may use accrued vacation pay, paid sick time, or other accrued paid time off, during the leave. The employer must guarantee reinstatement of employment for the employee at the end of the leave.
If an employer employs both parents, they are entitled to leave pursuant to this law for the same birth, adoption, or foster care placement, with a cap at 12 weeks that would be granted to one employee. However, employers may grant simultaneous leave to the parents, although the employers are not required to do so. The bill specifically requires that employers maintain healthcare coverage under a group health plan at the same level and same conditions that would have been provided to employees, as if they had never taken the leave. Employers can recover the costs of maintaining the health plan for employees who do not return to work after their leave is exhausted, if the failure to return is due to a reason other than a serious health condition or other circumstances beyond the employee’s control.
AB 168- Employers and Prior Salary History
AB 168 amends California Labor Code Section 432. Effective January 1, 2018, Section 432.3 prohibits an employer from: (1) seeking prior salary information, including through an agent, about an applicant; and, (2) relying on the applicant’s salary history as a factor in determining whether or not to offer the applicant a job or what salary to offer the applicant. In addition, and upon reasonable request, employers must disclose pay scales for a position to applicants.
Lastly, an applicant is not prohibited from “voluntarily and without prompting” disclosing his or her wage history. If an applicant does so, then an employer may use it to determine whether to extend a job offer or to decide what compensation to offer the applicant. However, the hiring process remains subject to the Equal Pay Act’s limitation that prior pay cannot, by itself, be used as a justification for any disparity in compensation between employees of different races, sexes, or ethnicities. AB 168 applies to all employers, including state and local government employers.
AB 1008- “Ban the Box” Expanded Statewide
Under the new statewide law, employers with five or more employees are prohibited from: (1) asking about criminal convictions on employment applications; (2) asking applicants about criminal convictions prior to making a conditional offer; and, (3) considering, distributing, or disseminating information about prior arrests leading to convictions when conducting background checks.
For job offers that are conditioned on a background check, the employer may inquire into the applicants’ conviction history and conduct a background check. If that background check reveals a criminal conviction, and if the employer intends to deny the applicant the position, in part because of the conviction, the employer must participate in an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship to the specific duties of the job. Employers in this situation must consider the following factors: (1) the nature and gravity of the offense and conduct; (2) the passage of time; and, (3) the nature of the position sought.
The employer must then notify the applicant regarding the decision in writing, which shall include the conviction(s), which form the basis for disqualification, a copy of the conviction history report, and an explanation of the applicant’s right to respond to the preliminary decision. If the applicant notifies the employer in writing within five business days that they are disputing the conviction history, the employer must provide an additional five business days for the applicant to respond. The employer must consider the information subsequently provided by the applicant before making a final decision.
If the final decision is to deny employment, the employer must notify the applicant in writing of the denial and explain the procedures for challenging the decision not to hire and for requesting the employer’s reconsideration of the decision. The employer must disclose that the employee has the right to file a complaint with the Department of Fair Employment and Housing (DFEH), if he believes his rights, under the law, have been violated in the hiring process.
SB 396- Harassment Prevention Training Regarding Gender Identity, Gender Expression, and Sexual Orientation
California has enacted new legislation, which aims to streamline the procedures for a person to change their legal gender to female, male, or non-binary, depending on their gender identity. This makes California the first state to recognize “non-binary” as a bona fide gender.
In addition, California expanded its sexual harassment prevention training requirements to address issues of gender identity. Currently, the California Fair Employment and Housing Act (FEHA) requires employers with 50 or more employees to provide 2 hours of sexual harassment prevention training to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years. SB 396 would now require employers to include as part of that training, gender identity, gender expression, and sexual orientation. The DFEH will develop a poster regarding transgender rights, which employers with 5 or more employees must post in the workplace in a prominent and accessible location.
AB 450- Immigrant Worker Protection Act
AB 450, the Immigrant Worker Protection Act, protects workers from immigration enforcement through workplace raids. Pursuant to this law, AB 450 prohibits employers from: (1) allowing immigration enforcement agents to access non-pubic areas of a workspace without a judicial warrant (with certain exceptions); and, (2) voluntarily allowing an immigration enforcement agent to access, review, or obtain employee records without a subpoena or court order (with certain exceptions). Furthermore, an employer, or someone acting on behalf of the employer, must do the following:
Provide current employees with notice of an immigration agency’s inspection of I‐9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving the federal notice of inspection.
Provide affected employees (employees who may lack work authorization or whose documents have deficiencies) a copy of the Notice of Inspection of I‐9 forms, upon reasonable request.
Provide affected employees and their authorized representatives a copy of the immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the action, within 72 hours of receipt of the results notice. This notice should be delivered by hand to only the affected employee, or by mail or email.
Violation of any of these requirements will result in a fine by the Labor Commissioner or Attorney General, between $2,000 and $5,000 for the first violation and between $5,000 and $10,000 for each subsequent violation. In addition, AB 450 prohibits employers from re‐verifying employment eligibility of a current employee at a time or manner not required by federal law. Violation of this prohibition can result in penalties of up to $10,000 for each violation.
SB 3- Reminder That The State Minimum Wage is Increasing
The California minimum wage increases on January 1, 2018, from $10.50 an hour to $11.00 an hour for employers of 26 or more employees, and from $10.00 an hour to $10.50 an hour for employees of 25 or fewer employees. Exempt employees, in addition to meeting exempt duties requirements, must be paid a weekly salary of no less than $880 weekly and $45,760 annually and $840 weekly and $43,680 annually for employers of 25 or fewer employees. All employers should also determine if their local cities and cities have minimum wage requirements that exceed California’s requirements.
Employers can consult with an employment law attorney at Thakur Law Firm, APC who are willing to assist with your important business decisions. The Thakur Law Firm, APC can help walk you through the many compliance changes that took place in the past year and best practices to keep compliant in 2018.