In the last few days, Governor Jerry Brown signed into law several bills that will significantly alter the employment law landscape in California and specifically impose many new requirements on employers. These new laws expand parental leave to small business employees, prohibit employers from inquiring into past salary history, restrict pre-job offer reliance on conviction history, limit cooperation in immigration enforcement actions, and strengthen anti-retaliation enforcement provisions. The employment laws highlighted below will go into effect on January 1, 2018.
Small Businesses Must Provide Parental Leave (SB 63)
SB 63, called the New Parent Leave Act, will require employers with 20 to 49 employees to provide their employees with protected time off for child bonding. Specifically, these employees can receive 12 weeks of unpaid, job protected leave during a 12-month period to bond with a new child within one year of the child’s birth, adoption, or foster care placement.
SB 63 expands on the child bonding provisions of the California Family Rights Act (“CFRA”), which up until now has only applied to larger employers with 50 or more employees. SB 63 follows CFRA’s eligibility requirements, including 1) employees must work at locations with at least 20 employees within a 75 mile radius and 2) employees must have 12 months of service with a covered employer and at least 1,250 hours of service during the 12-month period prior to his/her leave.
SB 62 also requires employers to continue to pay for group health insurance coverage during the leave and to reinstate the employee to the same or comparable position.
Develop policies and include in your Employee Handbook information on this new leave of absence law
Create forms and procedures needed to administer this new leave of absence
Train HR, supervisors and managers on this new leave of absence
Employer Banned from Seeking Past Salary Information (AB 168)
In further efforts to close the gender wage gap, Governor Brown has signed AB 168 which will bar employers from directly or indirectly seeking or inquiring into job applicants’ salary history (including compensation and benefits). This bill will also prohibit employers from using or relying on applicants’ salary history information to decide whether to extend job offers and/or how much to pay. Employees, though, can “voluntarily and without prompting,” disclose their past salary history information; in that situation, employers are not prohibited from relying on the information in determining the starting salary. However, employers should remember that the California Fair Pay Act prohibits past salary, by itself, to justify any disparity in pay among men and women.
AB 168 also requires employers to disclose job position pay scales to applicants upon reasonable request. AB 168 goes into effect on January 1, 2018.
Revise employment applications and interview questions to ensure prior salary history is not sought
Create pay scales for job positions
Audit employees’ current compensation for purposes of determining unlawful differentials based on gender, race or ethnicity
Employers Severely Restricted in Considering Applicant’s Conviction History (AB 1008)
California Governor Brown signed into law AB 1008, otherwise known as the state-wide “Ban the Box” bill. AB 1008 will prohibit employers with five or more employees from inquiring about or considering a job applicant’s conviction history prior to a conditional offer of employment. Specifically, employers will be prohibited from:
Asking any question on an employment application that seeks the disclosure of an applicant’s conviction history prior to the employer making a conditional offer of employment to the applicant,
Inquiring into or considering the conviction history of the applicant until after the employer has made a conditional offer of employment to the applicant,
Considering the following information disclosed in a background check when making hiring decisions: 1) Arrest not followed by conviction, 2) Referral to or participation in a pretrial or post-trial diversion program, or 3) Convictions that have been sealed, dismissed, expunged, or statutorily eradicated
The employer is required to conduct an individualized assessment to determine whether the applicant’s conviction history has a “direct and adverse relationship with the specific duties of the job that justify denying the applicant the position.” The employer must then inform the applicant of its preliminary determination in a written notice, which must include the conviction at issue, a copy of any conviction history report and the applicant’s right to respond to the preliminary determination within 5 days. If the employer makes the final decision to not hire the applicant, a final written notice must be provided.
Review and revise employment applications and interview questions to ensure prohibited information is not prematurely sought
Implement protocols for making “individualized assessments”
Draft preliminary and final written notice letters that include the information mandated by the law
Employers Limited from Cooperating in Immigration Enforcement Actions (AB 450)
AB 450, also known as the Immigrant Worker Protection Act, prohibits employers from voluntarily allowing immigration enforcement agents to access non-public areas of a workplace without a judicial warrant and from accessing reviewing, or obtaining employee records without a subpoena or court order except for the I-9 form or if authorized by federal law. AB 450 also requires employers to provide current employees with a written “Notice of Inspection” within 72 hours of receiving notice from an immigration agency of its intent to conduct an inspection of I-9 forms or other employment records.
Employers who violate this Act can face penalties between $2,000 and $5,000 for an initial violation and between $5,000 to $10,000 per violation for subsequent violations.
Develop policies and protocols in compliance with this law regarding what to do if immigration enforcement agents appear at the workplace and request access or records
Train supervisors and managers on these policies and protocols
Employers Face Toughened Anti-Retaliation Enforcement (SB 306)
The California Labor Code prohibits employers from retaliation, specifically discharging, or otherwise discriminating or retaliating against, employees or job applicants for engaging in various protected activities. In California, the Division of Labor Standard Enforcement (“DLSE”) adjudicates retaliation claims and can grant reinstatement and/or the recovery of wages and work benefits lost as a result of unlawful retaliation.
SB 306 provides the DLSE with enhanced investigation and enforcement authority as it relates to anti-retaliation laws. Currently, the DLSE is authorized to conduct investigations upon receipt of a filed retaliation claim by an employee. SB 306 will allow the DLSE to investigate an employer for retaliation - absent an actual complaint of retaliation by an employee – merely based on suspicion during the course of a wage claim or other specified investigation.
SB 306 also lowers the burden of proof necessary for obtaining temporary or preliminary injunctive relief in retaliation cases, which could include prohibiting the employer from discharging or taking other adverse actions against an employee alleging retaliation. Under SB 306, the DLSE will be able to petition the court for injunctive relief simply upon a finding of “reasonable cause” that retaliation occurred or is occurring.
Provide supervisors and managers with a refresher training on California’s anti-retaliation laws
Ensure you have written anti-retaliation policies as well as complaint procedures