10.18.17

Governor Jerry Brown has recently signed, or allowed to become law, a number of bills that will apply to California workplaces.

Some of the bills are very limited in scope, but here are the most significant for employers with operations in California along with practical tips for implementation.

All of the following will take effect January 1, 2018.

1. Ban on salary history questions

A.B. 168 prohibits employers from seeking the salary histories of job applicants.

The legislation applies to all private and public sector employers, although government employees may have their salary information disclosed as a matter of public record. It also requires private sector employers to provide the pay scale for a position if an applicant makes a “reasonable request” for it.

Job applicants can still voluntarily disclose their salary histories, and employers can rely on that information in establishing the salaries for the relevant positions.

A.B. 168 was opposed by employer groups, including the California Chamber of Commerce, the California Retailers Association, and the California Restaurant Association.

Practical Tip: Revise job applications and online applicant tools to remove any question seeking salary at prior job or salary history. Train recruiters and hiring managers on avoiding questions about prior salary. Train Human Resources employees on responding to questions about “pay scale” or salary ranges for individual positions.

2. Immigration enforcement in the workplace

AB 450 prohibits an employer from allowing an immigration enforcement agent to enter a California workplace unless the agent produces a judicial warrant. The bill would also prohibit a California employer from allowing an immigration enforcement agent to access, review, or obtain employee records without a subpoena or court order.

Practical Tip: Alert Human Resources, Security, front desk, or other gatekeepers to respectfully request warrants from immigration enforcement agents who appear at worksites. Require written, electronic, in-person or telephonic requests for employee records to be referred to senior management or Legal Department for review and response.

3. Criminal records

A.B. 1008, which applies to all employers of five or more employees, prohibits an employer from asking about a job applicant's criminal conviction history before a conditional offer of employment is made. No question that seeks disclosure about criminal history can appear on a job application. If an employer intends to withdraw a job offer based on the applicant’s criminal record, the employer must first make an individualized assessment that includes consideration of the gravity of the conduct, the time that has elapsed since the conduct occurred, and the nature of the job being offered. If the final decision is to withdraw the offer, the employer must comply with notification requirements and give the applicant an opportunity to respond.

A.B. 1008 makes California the largest “ban-the-box” state.

The bill faced little opposition and won a final vote of 35-4 in the Senate on Sept. 14. It passed the Assembly 69-8 on Sept. 13, and first passed the Senate in May.

Practical Tip: Job applications, online application tools, advertisements, websites, and other recruitment tools must remove questions or notices seeking or identifying criminal conviction history as a pre-offer screening tool. Train recruiters and Human Resources employees on (1) conducting criminal background checks post-offer, (2) documenting “individualized assessment process” when considering criminal conviction information, and (3) complying with the notification/opportunity for response requirements when withdrawing job offers based on criminal background information.

4. Unpaid leave of absence for new baby

S.B. 63, also known as the “New Parent Leave Act,” requires California businesses with 20 or more employees within a 75-mile radius of the worksite to provide up to 12 weeks of unpaid leave in a 12-month period for the care of a new child.

Currently, California’s Pregnancy Disability Law  requires employers with five or more employees to provide up to four months’ unpaid leave for medical conditions related to pregnancy and childbirth. In addition, under the California Family Rights Act, employers with 50 or more employees are required to provide up to 12 weeks’ leave during a 12-month period for (1) the birth, adoption, or foster placement of a child; (2) the employee’s own serious health condition; or (3) the care of an employee’s spouse or parent with a serious health condition. S.B. 63 does not apply to employers whose employees are already covered under the California Family Rights Act and the federal Family and Medical Leave Act, but it does create a new entitlement for child bonding leave for smaller employers.

S.B. 63 is expected to broaden existing family leave legislation to include an additional 6 percent of California employers and 2.7 million employees.

Practical Tip: Companies with 20-49 employees located in California will need to adapt their written leave of absence policies to comply with the New Parent Leave Act for child bonding leave. Human Resources employees in these companies should receive training on the new law.

5. Mandatory training on gender identity, gender expression, sexual orientation

SB 396 requires employers with 50 or more employees who provide supervisor training on discrimination and harassment to add a component to cover gender identity, gender expression, and sexual orientation. A new poster on Transgender Rights will be issued by state Department of Fair Employment and Housing.

Practical Tip: Human Resources, outside training vendors, and developers of online supervisor training should determine whether their EEO and harassment programs adequately cover gender identity, gender expression, and sexual orientation. If not, they must add a component that covers these issues. Companies should verify that these issues are also included in supervisor training handouts and electronic materials.

6. Expanded power of Labor Commissioner to enforce anti-retaliation laws

SB 306 expands the authority of the state Division of Labor Standards Enforcement to investigate violations of, and enforce, anti-retaliation laws over which the DLSE has jurisdiction. The DLSE’s enforcement power is broad and includes not only wage-hour disputes but also leave of absence laws, unfair immigration-related practices, political activity, pay equity, disclosure to government agencies, and many other violations of the California Labor Code.

Probably most significantly, the DLSE will now be authorized to investigate an employer without receiving a complaint of retaliation. The agency will be authorized to begin an investigation if it “suspects” that retaliation has occurred or that immigration-related related threats have been made to employees who have filed or cooperated in an investigation conducted by the DLSE. The new law authorizes an employee bringing a civil action for retaliation to petition a superior court for temporary or preliminary injunctive relief.

Practical Tip: Companies should alert Human Resources, Payroll, Safety, and other personnel who are charged with investigating and responding to complaints filed with the DLSE, that retaliation claims are receiving more attention. It may be advisable to seek legal counsel at an earlier stage and in what would previously have been considered a routine DLSE claim so that the employer can better identify and minimize risks.

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