By UpCounsel Corporate Attorney Fiona Kaufman

2018 is almost here, and with the new year come new laws, especially in the areas of employment and labor law. The California legislature has enacted many new laws that affect both employers and employees. Below are summaries of the major pieces of legislation from this past legislative session that will go into effect right as we ring in the New Year.

AB 168 – Employers and Salary Information

AB 168 adds Section 432.3 to the Labor Code which prohibits an employer from: 1) seeking salary history information, including through an agent, about an applicant, and 2) relying on the salary history information of an applicant as a factor in determining whether to offer the applicant a job or what salary to offer the applicant.
Labor Code Section 432.3 also provides that, upon reasonable request, an employer must provide the pay scale for the position to the applicant.

Lastly, an applicant is not prohibited from voluntarily and without prompting to disclose salary history, and if they do so, an employer is not prohibited from considering or relying on that information.

AB 168 applies to all employers, including state and local government employers. However, the prohibitions of AB 168 do not apply to any salary history information that is disclosable to the public under federal or state law.

Key Takeaways:

  1. Employers need to evaluate their hiring process to ensure their job applications, both online and on paper, are compliant.
  2. Employers need to advise and train those employees interviewing candidates not to ask or seek out prohibited information.
  3. Potential employees should be aware that salary and compensation information is protected and that they have the right to not disclose such information.

SB 63 – New Parent Leave Act

SB 63 adds Section 12945.6 to the Government Code, which requires California businesses with at least 20 employees (a decrease from 50 under previous law) to provide 12 weeks of unpaid and job projected family leave to bond with a new baby or child within one year of that child’s birth, adoption, or foster care placement. To take family leave under this bill, an employee must have at least 12 months of services, have worked at least 1250 hours of services during the previous 12 months, and work at a worksite with at least 20 employees within 75 miles.

The bill also specifically prohibits an employer from refusing an eligible employee protected family leave and refusing to maintain and pay for coverage under an eligible group health plan. Under the bill, two employees may be grated simultaneous leave for the same birth, adoption or foster care placement. SB 63 also prohibits an employer from refusing to hire, or to discharge, fine, suspect, expel, or discriminate against, an individual for exercising the right to parental leave provided under this Act. Employers are also prohibited from interfering with, restraining or denying the exercise of, or the attempting to deny the exercise of, any right provided under this Act.

Key Takeaways:

  1. Businesses with at least 20 employees (as opposed to 50) are required to offer 12 weeks of unpaid leave to bond with a new child under similar terms to the Federal Medical Leave Act.

SB 396 – Expanded Harassment Training

SB 396 amends Government Code Sections 12950 and 12950.1 and Insurance Code Sections 14005 and 14012. Currently in CA, employers with 50 or more employees are required to provide at least two hours of training and education on sexual harassment to all supervisory employees within six months of starting their supervisory role and once every two years. SB 396 would now require employers to include as a part of that training a component based on gender identity, gender expression, and sexual orientation.

SB 396 also requires employers with 5 or more employees to post a new workplace poster regarding transgender rights, which will be developed by the Department of Fair Employment and Housing, in a prominent and accessible location.

Key Takeaways:

  1. Update Anti-Harassment training to be in compliance with the updated statutes.
  2. Review and update employee handbooks to ensure they cover these areas.
  3. If your business has 5 or more employees, post the poster produced by the Department of Fair Employment and Housing on transgender rights.

AB 450 – Immigration Enforcement

AB 450 adds Sections 7285.1, 7285.2, and 7285.3 to the Government Code and adds Sections 90.2, and 1019.2 to the Labor Code. AB 450 prohibits employers from 1) allowing immigration enforcement agents to access non-public areas of a workspace without a judicial warrant, and 2) voluntarily allowing an immigration enforcement agent to access, review, or obtain employee records without a subpoena or court order.

Additionally, except as required by federal law, AB 450 also requires employers to provide employees with notice of an immigration agency’s records inspection by posting the inspection notice within 72 hours of receipt by employer. Also, the employer is required to provide written notice to the employee’s authorized representative, if any, within 72 hours of receipt of the inspection notice. Lastly, upon reasonable request, an employer must provide an affected employee with a copy of the notice. Civil penalties in amounts between $2,000 and $5,000 will be assessed for an initial violation, and $5,000 to $10,000 for subsequent violation.

Key Takeaways:

  1. Employers should review their policies and procedures to ensure compliance with the new law.
  2. Employers should develop and implement a written procedure and train staff on how to handle any potential warrants and subpoenas.
  3. Employers should make sure they comply with the notice requirements and applicable timelines.

AB 1008 – Ban the Box on Criminal Convictions

AB 1008 prohibits employers with five or more employees 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 not leading to convictions when conducting background checks.

For an employer who withdraws a conditional job offer based on criminal conviction information, the employer must conduct an individualized assessment to determine whether an applicant’s criminal history has a direct and adverse relationship with the specific duties of the job. The employer must consider the following factors: nature and gravity of the offense and conduct, passage of time, and the nature of the position sought. The employer must then notify the applicant of their preliminary decision, give them a copy of the report, and explain the applicant’s right to respond and provide a mandated five business days to respond.

If the applicant notifies the employer in writing within the five business day window that they are disputing the conviction history, the employer must provide an additional five business days for the applicant to respond. If after receiving the response from the applicant the employer decides not to hire based on criminal history, the employer must notify the applicant in writing and include the final denial, information relating to any existing procedure to challenge the decision or request reconsideration, and the right to file a complaint with the Department of Fair Employment and House.

Key Takeaways:

  1. Employers should revise all employment applications to remove any ‘boxes’ or questions which seek criminal conviction history information from applicants.
  2. Employers should ensure interview guidelines and hiring processes are in compliance with the law.
  3. Employers should develop procedures to comply with the law.
  4. Employers should also check for any local regulations with similar and expanded obligations.

SB 3 – Minimum Wage Increase

On January 1, 2018, the California state minimum wage increases to $11.00 per hour for those business with 26 or more employees and $10.50 per hour for those business with 25 or less employees. However, many cities, especially in the Bay Area, have adopted their own minimum wage schedule which may be above the California state minimum wage, so be sure to check your city minimum wage.

Key Takeaways:

  1. Employers should check to see what, if any, minimum wage increase are applicable to their business.

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About the author

Fiona Kaufman

Fiona Kaufman

Fiona Newell Kaufman is an experienced Corporate Attorney with boutique practice showcasing extensive experience working in-house for Silicon Valley High Technology companies. As a solo practitioner, her goal is to provide high quality, value-oriented legal services to publicly-traded and privately held technology-based product and service companies. In offering a full-range of 'in-house' counsel services, her focus is to address your specific legal issues in a clear, affordable and flexible 'outside' counsel basis.

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