By Adriana Cara
The start of a New Year heralds a time for most companies to regroup, implement changes to their business plans, and set goals to boost their bottom lines. However, California employers will face additional challenges with the enactment of a myriad of new employment laws that will require significant changes to their hiring practices and workplace policies.
The following lists the most significant changes to the employment law landscape, and explains what they mean for employers. Employers should consult with experienced employment counsel if they have any questions about these new laws, and the necessary steps they should take to comply with them.
AB 168 -- Employee Salary Information
Effective January 1, 2018, AB 168, which adds Section 432.3 to the Labor Code, prohibits private and public sector employers from relying on an applicant's salary history as a factor in determining whether to offer employment or the amount of salary to offer the applicant. Employers are also prohibited from asking job applicants their prior salary, compensation, and benefits. The new law:
Applies to public and private employers;
Prohibits employers from asking applicants about their prior salary history;
Prohibits employers from using prior salary history as a factor to make hiring decisions or to determine what amount of salary to offer;
Provides that an applicant can voluntarily and without prompting disclose salary history information;
Requires employers, upon reasonable request, to provide the pay scale for the position for which the applicant applied.
Employers should review and update their employment applications and hiring policies to ensure that they do not permit inquiries regarding an applicant's salary history. Employers should also train hiring personnel on how to avoid impermissible inquiries.
AB 450 -- Immigration Worksite Enforcement Actions
Effective January 1, 2018, AB 450, which adds Sections 7285.1, 7285.2, and 7285.3 to the Government Code, and Sections 90.2 and 1019.2 to the Labor Code protects workers from unauthorized immigration enforcement while at their jobsites. Solidifying California's status as a sanctuary state, the new law:
Prohibits employers from voluntarily providing immigration enforcement access to their business without a valid warrant;
Prohibits employers from providing immigration enforcement with employee records without a subpoena;
Employers must provide notice to workers within 72 hours of learning that immigration enforcement intends to inspect the employees' I-9 form or other similar records. Employers must also provide workers and their authorized representatives a copy of the inspection notice and the results within 72 hours of receipt.
Penalties for violations range from $2,000 to $5,000 for first violation and $5,000 to $10,000 for each subsequent violation.
Employers should inform and train Human Resources personnel on how to handle immigration enforcement requests for information regarding employees, and how to provide workers the requisite notice requirements.
AB 1008 -- Employee Conviction History
Effective January 1, 2018, AB 1008, which adds Section 12952 to the Government Code, prohibits employers from asking job applicants to disclose conviction information during the hiring process. The new law:
Applies to private employers with five or more employees;
Provides that once a conditional offer is made, criminal history may be obtained by the employer;
Provides that before an employer may reject an applicant based on his or her criminal history, the employer must conduct an individual assessment and notify the applicant of the decision. The employer must justify the rejection by drawing a relevant connection between the criminal history and the specific job duties of the position. In addition, the notice must include a copy of the conviction history report, if any and an applicant's right to respond to the notice;
Requires that an applicant be given five business days to respond to the notice, before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the applicant will have an additional five business days to respond to the notice; and
Requires an employer to consider additional information submitted by an applicant before making a final decision. If the employer chooses not to employ the applicant, the employer must provide a second notice to the applicant of the employer's decision.
Employers should inform and train personnel in charge of hiring on the law's new requirements. Job applications and hiring procedures should be updated to comply with this law. Human Resources employees should also be informed and trained on how to provide the required notice to employees.
SB 63 (New Parent Leave Act) -- Expansion of Parental Baby Bonding Leave Protections
Effective January 1, 2018, SB 63 adds Section 12945.6 to the Government Code, which provides baby bonding leave rights to employees of employers with 20 or more employees. Before the New Parent Leave Act was enacted, only employers with 50+ employees were required to provide baby bonding leave under the Family Medical Leave Act ("FMLA") and the California Family Rights Act ("CFRA") to employees meeting certain criteria. The new law:
Applies to employers with 20 -- 49 employees within a 75-mile radius;
Does not apply to employers who are covered under the FMLA and CFRA;
Applies to employees who have worked for a covered employer for 12 months and who have worked least 1,250 hours;
Provides up to 12 weeks of unpaid job-protected leave for the birth, adoption, foster care or placement of a child;
Provides that the employer must maintain an employee's health care benefits during this leave
in the same manner as before the leave began; and
- If both parents work for the same employer, they are entitled to take a combined leave of 12 weeks (i.e., they are not each entitled to 12 weeks of leave)
Employers should note that the New Parent Leave Act applies only to leave taken for the birth, adoption, or foster care placement of a child; it does not grant a right to take leave for an employee's own serious health condition, to care for an injured family member or to handle issues related to a family member's deployment while serving in the military.
Also, all other threshold requirements of CFRA must be met to qualify for the leave. As with "baby bonding" leave under CFRA, leave under the New Parent Leave Act is in addition to the up to four months of Pregnancy Disability Leave available to employees who are disabled by pregnancy, childbirth, or related medical conditions.
Employers with 20 to 49 or more employees should immediately implement a written policy describing employees' rights and obligations under the New Parent Leave Act, and train Human Resources personnel about the employer's obligations and employees' rights in connection with this leave.
SB 396-- Sexual Harassment Training Must Include Component on Sexual Harassment, Gender Identity and Gender Expression
Effective January 1, 2018, SB 396, which amends amend Sections 12950 and 12950.1 of the Government Code, requires employers with 50 or more employees to include, as a component of California's mandatory sexual harassment training, education on gender identity, gender expression, and sexual orientation harassment. The new law:
Employers with 50 or more employees must incorporate information on harassment based upon gender identity, gender expression, and sexual orientation into the two-hour sexual harassment prevention training already required for all supervisory employees; and
Employers must also prominently display a new poster regarding transgender rights in the workplace.
Employers should ensure that any sexual harassment training they provide (whether in-house or through a third-party provider) complies with the mandates of the new law, including posting the requisite information on transgender rights.
Adriana Cara is a partner in the Employment, Labor and Benefits Department at Dinsmore & Shohl, a San Diego law firm.