Hunton Employment & Labor Perspectives

The new year brings new laws for California employers to grapple with. Below we highlight the most significant new employment laws affecting California employers as of January 1, 2018.  Companies based in California or with operations in California are encouraged to review their policies and procedures in light of these developments.

No More Salary History Inquires

 Labor Code § 432.3 prohibits employers from asking about a job applicant’s prior salary, compensation or benefits, or relying on salary history information as a factor in deciding whether to offer employment what salary to offer an applicant.  However, an employer may consider salary information voluntarily disclosed by the applicant without any prompting, to determine the salary for that applicant.  Section 432.3 further requires an employer to provide a job applicant, upon reasonable request, with the pay scale for the position.

While the new law has gone into effect January 1, there remain several uncertainties about this law.  For example, unlike New York City Salary History Law, which expressly permits employers to initiate discussions regarding an applicant’s salary expectations, Section 432.3 is silent on this issue.  As such, whether employers may ask about an applicant’s salary expectations pre-hire in California (as opposed to salary history) is unclear. Regarding the requirement that pay scale information must be provided, the law does not specify a specific time limit for responding to these requests, nor does it specify whether the pay scale information must be provided in writing. The new law also does not provide penalties for non-compliance, and it’s not clear whether non-compliance with this new law may form the basis of a PAGA action, which would impose penalties and the recovery of attorneys’ fees.

Ban-the-Box Law

With the passage of AB 1008 (Government Code section 12952), California joined a growing list of states requiring that employers delay consideration of an applicant’s criminal record in the hiring process.  It is now unlawful for California employers with five or more employees to (1) include any question about conviction history on a job application, unless the application is presented after a conditional offer of employment; (2) inquire into or consider an applicant’s conviction history before extending a conditional offer of employment; and (3) subject to limited exceptions, consider, distribute, or disseminate information about specified criminal history that California already prohibits employers from considering.  Moreover, under the new law, if an employer intends to deny a position solely or in part because of the applicant’s prior conviction, the employer must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the duties of the job, and give the applicant the opportunity to dispute the accuracy of the conviction history report.

New Parent Leave Act for Smaller Employers

Senate Bill 63 amended Section 12945.6 of the Government Code to expand the “baby bonding” protections under the California Family Rights Act (CFRA) to smaller employers. Now employers with at least 20 employees (as opposed to 50) are required to offer 12 weeks of unpaid “bonding” leave to employees under similar terms as the California Family Rights Act (CFRA).

Minimum Wage Increase

The state minimum wage increased to $11.00 per hour for employers with 26 or more employees, and $10.50 per hour for employers with 25 or fewer employees.

Expanded Harassment Training: Gender Identity/Gender Expression, Sexual Orientation

 California employers with 50 or more employees have been required to provide at least two hours of sexual harassment training to all supervisory employees within six months of starting their supervisory role and once every two years. SB 396, which amended Government Code Sections 12950 and 12950.1 and Insurance Code Sections 14005 and 14012, requires that California employers also now include as part of that training a component regarding gender identity, gender expression, and sexual orientation.

SB 396 also requires employers with 5 or more employees post a new workplace poster regarding transgender rights developed by the Department of Fair Employment and Housing, in a prominent and accessible location.

 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 varying fines from $2,000 to $10,000 for violating its provisions.  Specifically, AB 450 prohibits employers from (1) giving federal immigration agents access to non-public areas of a business without a judicial warrant; and (2) providing these agents with access to employee records without a subpoena or judicial warrant. This prohibition does not apply to Form I-9 or other documents for which a Notice of Inspection was provided to the employer.

With regards to Form I-9 inspections, employers must: (1) post a notice to all current employees informing them of any federal immigration agency’s inspections of Forms I-9 or other employment records within 72 hours of receiving the Notice of Inspection; (2) provide a copy of the Notice of Inspection to an affected employee upon reasonable request; and (3) provide each “affected employee” and the employee’s collective bargaining representative a copy of the inspection results and a written notice of the employer’s and employee’s obligations arising from the inspection within 72 hours of receiving results. An “affected employee” is one identified by the inspection results as potentially lacking work authorization or having document deficiencies.

AB 450 also 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.

San Francisco - Lactation Accommodation Obligations

San Francisco’s “Lactation in the Workplace” Ordinance expanded lactation accommodation obligations for San Francisco employers and contains detailed policy and record-keeping requirements.  In addition to providing employee breaks and a location for lactation, already required under the California Labor Code and Fair Labor Standards Act, San Francisco employers are now required to maintain a written lactation accommodation policy, and this policy must be distributed to all new hires and to any employee who asks about or requests pregnancy or paternal leave.  Additionally, if the employer has an employee handbook or set of policies, the lactation accommodation policy shall be included therein.  The new ordinance also requires employers maintain a record of employee requests for lactation accommodations for three years. The record must include the employee’s name, the date of the request, and a description of how the employer addressed the request, including written accommodation denials.