In 2017, the California Legislature enacted several new employment laws that will affect businesses in 2018 and beyond.
Unless specified below, all new legislation goes into effect on January 1, 2018.
1. Parental Leave for Small Employers
Small employers will now be required to provide new parents with up to 12 workweeks of unpaid leave.
SB 63, the New Parent Leave Act, requires small business with 20 or more employees to provide eligible employees up to 12 weeks of unpaid, job-protected leave to bond with a new child – leave must be taken within one year of the child’s birth, adoption or foster care placement. SB 63 requires employers to provide parental leave only for baby bonding; it does not require employers to provide leave for other reasons, such as a family member’s medical issue.
If an employee take this leave, an employer must maintain and pay for existing health insurance coverage under a group plan, under the same conditions that coverage would have been provided had the employee continued working.
Before the leave starts, employers must provide an employee with a guarantee of reinstatement to the same or comparable position. Failure to provide the guarantee will be deemed a violation of the law, as if the employer refused to provide leave.
2. Ban-the-Box Law
As reported in an earlier e-update, AB 1008 prohibits employers with five or more employees from asking about criminal history information on job applications and from inquiring or considering criminal history at any time before a conditional offer of employment has been made. There are limited exemptions for certain positions, such as those where a criminal background check is required by federal, state or local law.
Once an employer has made a conditional offer of employment, it may inquire into the applicant’s criminal history. However, before denying employment because of a disclosed criminal conviction:
- The employer must first conduct an individualized assessment to determine whether the conviction has a direct and adverse relationship with the job’s specific duties that justifies denying employment.
- Any preliminary decision not to hire because of a conviction history requires written notice to the applicant, who must be given the opportunity to respond. The employer must consider any information by the applicant before making a final decision.
- A final decision to deny employment because of criminal history requires another specific written notice to the applicant.
3. Salary History is History
AB 168 bans employers from asking about a job applicant’s prior salary, compensation or benefits (either directly or through an agent, such as a third-party recruiter).
In addition, employers cannot rely on salary history information as a factor in determining whether to hire the applicant or how much to pay the applicant. However, an employer may consider salary information that is voluntarily disclosed by the applicant without any prompting.
AB 168 also requires an employer to provide a job applicant, upon reasonable request, with the pay scale for the available position.
4. Worksite Immigration Enforcement and Protections
The Immigrant Worker Protection Act (AB 450) provides workers with protection from immigration enforcement while on the job and imposes fines on employers from $2,000 to $10,000 for violating its provisions.
AB 450’s provisions include the following:
- Employers are not allowed to give federal immigration enforcement agents access to non-public areas of a business without a judicial warrant.
- Employers cannot provide enforcement agents access to employee personnel records without a subpoena or judicial warrant (this prohibition does not apply to I-9s).
- Employers must follow specific requirements related to Form I-9 inspections. Those requirements are to:
- Post a notice to all current employees informing them of any federal immigration agency’s inspections of Form I-9 or other employment records within 72 hours of receiving the Notice of Inspection. This notice must also be given to the collective bargaining representative, if any.
- Provide a copy of the Notice of Inspection to an affected employee upon reasonable requests.
- Once the inspection is over, provide each “affected employee” and the employee’s collective bargaining representative a copy of the inspections results and a written notice of the employer’s and employee’s obligation arising from the inspection. This must be done with 72 hours of receiving the results. An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies.
Also note, AB 450 makes it unlawful for employers to reverify the employment eligibility of current employees in a time or manner not allowed by federal employment eligibility verification laws.
5. Alcohol Servers – Bartenders
AB 1221 requires that businesses licensed to serve alcohol make sure each alcohol server receives mandatory training on alcohol responsibility and obtains an alcohol server certification. These requirements go into effect in 2021, after the course is developed by the Department of Alcohol Beverage Control.
6. Harassment Prevention Training: Gender Identity/Gender Expression, Sexual Orientation
California employers with 50 or more employees must provide supervisors with two hours of sexual harassment prevention training every two years. Under SB 396, covered employers will have to make sure that any mandatory training course they use also discusses harassment based on gender identity, gender expression and sexual orientation.
SB 396 also requires employers to display a poster on transgender rights that the Department of Fair Employment and Housing will develop.
7. Gender Identification: Female, Male or Nonbinary
SB 179 will allow California residents to choose from three equally recognized gender options – female, male or nonbinary – on state-issued identification cards, birth certificates and driver’s licenses. For changes to birth certificates, the law is effective on September 1, 2018. For changes to driver’s licenses, the law takes effect on January 1, 2019.
8. Fair Pay Act Expansion
AB 46 extends California’s Fair Pay Act – which prohibits wage discrimination by private employers on the basis of gender, race and ethnicity to also cover public employers.
9. Anti-Discrimination Protections for Veterans
AB 1710 expands the current legal protections for members of the armed services by prohibiting discrimination in all “terms, conditions, or privileges” of employment. This legislation conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting service members in civilian jobs from hostile work environments.
10. Health Facilities: Whistleblower Protections
AB 1102 increases the maximum fine for violation of whistleblower protections in healthcare facilities from $20,000 to $75,000.
11. Wage and Hour
January 1, 2018, the state minimum wage increases to $10.50 per hour for employers with 25 or fewer employees and to $11 per hour for employers with 26 or more employees.
Minimum wage in San Diego will remain at $11.50 per hour until January 1, 2019.
12. Increased Liability for Construction Contractors
As previously reported, for certain private construction contracts entered into after January 1, 2018, AB 1701 imposes liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to its employees who performed work under the sub-contract.
13. Barbering and Cosmetology
SB 490 allows workers licensed under the Barbering and Cosmetology Act to be paid a commission in addition to a base hourly rate if certain conditions are met.