New Laws for California Employers Effective January 2018: Employers Should Begin Implementing New Requirements for Hiring, Training
December 04, 2017
New California employment and labor related legislation signed into law in 2017 by Governor Jerry Brown will become effective January 1, 2018 that employers should be aware of and make appropriate changes in areas that include hiring practices, sexual harassment training, employee policies and communications, job application forms and recordkeeping.
The California Association of Winegrape Growers (CAWG) presented a webinar last week to provide information on several new laws and to assist member employers with implementing new requirements for 2018. CAWG director of government relations Michael Miiller, who worked with other statewide employer organizations to oppose and mitigate labor legislation with onerous impacts on employers, participated in the webinar. Presenting the new laws, along with background and practical advice, was attorney Benjamin Ebbink, counsel with the Sacramento office of Fisher & Phillips LLP, a large nationwide law firm that specializes in representing management in labor and employment issues. Ebbink has nearly 20 years of experience in the labor law field, including serving as a chief consultant to the California Assembly Committee on Labor and Employment. Addressing the employer audience, Ebbink said, “I wish I could be the bearer of good news, but most of these bills will cause significant changes to how employers conduct business.”
Employers Prohibited from Seeking Salary History Information
AB 168 (Eggman)—This law prohibits an employer from seeking salary history information (including compensation and benefits) from a job applicant that can be used as a factor in determining whether to offer employment, or in determining a salary to offer an applicant. The employer may not seek salary history information orally, in writing, or through an agent. Job application forms that request salary history information should be revised prior to January 1, 2018. The law also requires that an employer, upon request by an applicant, shall provide the pay scale for the position. This law does not prohibit an applicant from voluntarily disclosing salary history information or prohibit an employer from considering this voluntary information in determining salary.
Ebbink said an intent of this legislation is to address gender pay gap inequities. As he explained, “If we have a gender pay gap, and if the employee’s new job pay is based on past pay levels, it will perpetuate that gender pay gap.”
Prohibition on Criminal History Information and Discrimination
AB 1008 (McCarty)—Prohibits an employer with 5 or more employees from including on any job application form any question that seeks disclosure of an applicant’s criminal conviction history. Also prohibits inquiring into, or considering conviction history of an applicant, until the applicant has received a conditional job offer. Also requires an employer who intends to deny an applicant a position solely or in part based on the applicant’s conviction history to make an individualized assessment of whether the conviction history has a direct and adverse relationship with the specific job duties and to consider certain factors when making the assessment. The assessment must consider: nature and gravity of the offense, time that has passed since the offense, and the nature of the job in relation to the offense.
If an employer decides to disqualify the applicant after assessing conviction history, the applicant must be notified in writing, and this notice must contain information as specified in the law. The applicant must be notified of their right to respond and to submit evidence challenging the accuracy of the information, evidence of rehabilitation or mitigating circumstances, and be given a minimum of five business days to respond. The law also specifies rights of the applicant to file a complaint and appeal to the state labor commissioner.
The purpose of this legislation, known as “ban the box,” in reference to the application form box for an applicant to check if they have a criminal conviction, is to reduce barriers to employment for people with conviction histories. An estimated 7 million Californians have an arrest or conviction record that can undermine their efforts to obtain gainful employment. “Ban the box” legislation was passed in 2013 to apply to state agencies, and in 2015 President Obama directed federal agencies to refrain from asking applicants about convictions. This law does not supersede local “ban the box” ordinances that currently exist in the cities of San Francisco and Los Angeles. Ebbink said, “There is now a very specific process you need to follow if you contemplate using criminal history in your hiring practices.”
Ebbink offered the following practical advice for complying with the new law:
Review job applications now. Any questions or “boxes” that ask about criminal conviction history should be eliminated. Can still advise applicants that this employer may consider conviction history after a conditional offer is extended.
When a conditional offer is made, the applicant should be asked to disclose in writing any criminal convictions and certify that all information on the form used is true and correct. The form should include a written warning that in the event of falsification or omission of material fact, the applicant will not be hired, or if hired, will be subject to immediate termination. Applicant should be advised that the offer is contingent upon outcomes of the criminal history inquiry, a background check (if conducted) and a pre-employment drug test (if administered).
Mandatory Parental Leave for Smaller Employers
SB 63 (Jackson)—Expands parental leave requirements to employers with at least 20 employees to allow an employee to take up to 12 weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The new law prohibits the employer from refusing to allow an employee parental leave who works at a worksite in which the employer employs at least 20 workers within 75 miles. The employee must have more than 12 months of service with the employer, and have at least 1,250 hours of service during the previous 12-month period. This would be an unpaid leave period, but the employee can use accrued vacation or sick leave time. Requires the employer to maintain and pay for coverage under a group health plan for the employee who takes leave. Does not apply to employees already covered under the California Family Rights Act and the federal Family and Medical Leave Act, that apply to employers with 50 or more employees.
Mandatory Sexual Harassment Prevention Training
SB 396 (Lara)—The California Fair Employment and Housing Act (FEHA) currently requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment prevention to all supervisory employees within 6 months of assuming a supervisory position, and once every 2 years. With SB 396, this new law additionally requires employers with 50 or more employees to include, as a component of the training for supervisors, training inclusive of harassment based on gender identity, gender expression, and sexual orientation. Also requires each employer to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.
Farm Labor Contractor Sexual Harassment Training
SB 295 (Monning)—This legislation is a follow-up to SB 1017 enacted in 2014 that requires farm labor contractors (FLCs) to provide at least two hours of sexual harassment prevention training to supervisors once a year. Nonsupervisory employees are to be trained at the time of hire, and at least once every two years in identifying, preventing, and reporting sexual harassment in the workplace. SB 295 requires that mandatory sexual harassment training for each agricultural employee of a FLC be provided in the language understood by the employee. The new law has additional recordkeeping requirements that requires the FLC to annually report to the California labor commissioner a complete list of all materials or resources used to provide training and the total number of employees trained. The labor commissioner is required to annually aggregate all the data provided and publish the information on its website. This new law also specifies new civil penalties for non-compliance by FLCs.
Ebbink explained that the new requirements were added based on claims by the non-profit California Rural Legal Assistance, Inc. (CRLA) that sexual harassment training has not been adequately provided, even though no complaints have been filed with the labor commissioner and no adverse license actions have been taken against FLCs. It is anticipated that CRLA will push for additional FLC training requirements in the Legislature. With sexual harassment claims a current hot topic across many industries, Ebbink advised all employers to be diligent in this area and “be proactive, not reactive.” Miiller expects sexual harassment in the workplace to be a major issue in the Legislature in 2018.
Sanctuary Workplace, Immigration Worksite Inspections/Enforcement
AB 450 (Chiu)—Except as otherwise required by federal law, prohibits an employer from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a labor site unless the agent provides a judicial warrant. Also prohibits an employer from providing voluntary consent to an agent to access, review, or obtain employee records without a subpoena or court order. Also requires an employer to provide a current employee notice of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving the federal notice of inspection. Also requires the employer, upon request, to provide affected employees a copy of the notice of inspection and a copy of the written immigration agency notice that provides for the inspection results and the obligations of the employer and the employee arising from the action. Employer violations of these prohibitions are subject to civil penalty fines ranging from $2,000 to $10,000.
Ebbink explained that this bill was the Legislature’s response to the Trump Administration’s actions and threats to increase workplace inspections and raids by U.S. Immigration and Customs Enforcement (ICE). Although it offers some protections for workers, it puts the employer in the middle of the immigration debate, and the employer must address differences in state and federal requirements and policies.
More details and specific language for the above laws can be found at the California Legislative Information website at www.leginfo.legislature.ca.gov
Employers are advised to seek additional information for complying with these new laws from the appropriate state labor and employment agencies and from knowledgeable legal counsel.