New Employment Law Updates for 2018

  1. CHANGE YOUR EMPLOYMENT APPLICATION – BAN THE BOX

Employers are prohibited from asking job applicants about their criminal records. The law also prohibits employers from asking similar questions on job applications. Employers can consider applicants’ criminal record only after making a conditional job offer.

Under the law, an employer that refuses to hire an applicant due to his or her conviction history, will be required to conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justifies denying the applicant the position.

Employers that decline to hire an applicant with a criminal history will be required to provide written notice to the employee identifying the disqualifying conviction. However, if an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer would be required to notify the applicant in writing of the final denial or disqualification. The employer will also be required to notify the applicant of any existing procedure the employer has for the applicant to challenge the decision or request reconsideration and of the applicant’s right to file a complaint with the California Department of Fair Employment and Housing.

ACTION NEEDED:

  • Update applications to remove inquiries related to conviction history
  • Have a written policy on the use of criminal background checks of applicants and current employees.
  • Train managers and supervisors and anyone else involved in the hiring process to avoid inquiring about any conviction history until after a conditional offer of employment has been extends, and on types of information that may be obtained during
  1. CHANGE YOUR INTERVIEW SCRIPTS – SALARY HISTORY INQUIRIES PROHIBITED

Assembly Bill 168 prohibits an employer from asking for a job applicant’s salary history information. The new law also prohibits consideration of salary history as a factor in making a hiring decision (even if volunteered by the applicant). Despite the law, employers may consider an applicant’s prior salary information in determining salary for that applicant if the applicant voluntarily discloses the information. The law requires an employer, upon reasonable request, to provide a pay scale for a position to an applicant.

The new law follows on the heels of AB-1676, which amended the California Fair Pay Act to provide that prior salary cannot, by itself, be a “bona fide factor other than sex” justifying a pay disparity between employees of different genders.

ACTION NEEDED:

  • Update applications, interview templates and other forms to remove inquired related to salary history
  • Train managers and supervisors and anyone else involved in the hiring process to avoid inquiring about an applicant’s salary history
  • Develop a salary range for every job posting to be provided to the applicants upon request
  1. CHANGE IN PARENTAL LEAVE FOR MEDIUM SIZED EMPLOYERS

Senate Bill 63 requires small employers to provide unpaid parental leave for the purpose bonding with a new child. The law applies to employers with 20–49 employees in a 75-mile radius, imposing a new leave law requirement on employers that were previously exempt from the California Family Rights Act (which applies to businesses with 50 or more workers).

Employees are eligible for leave provided that they have worked for the employer for at least 12 months and have worked at least 1,250 hours in the past 12 months for the employer. Where both parents work for the same company, the employer would be able to require the parents to take no more than a combined 12-week leave.

Employers are required to continue to pay their regular share of healthcare premiums while employees are on parental leave. Under certain circumstances, employers may be able to recover the premiums when the parent-employee does not return to work following the leave.

ACTION NEEDED:

  • Employers with between 20 and 49 employees should update leave policies to include a description of parental leave including the right to take 12 workweeks of job-protected, unpaid parental leave to bond with a new child, assuming employees meet eligibility criteria.
  1. CHANGE IN ICE COOPERATION

Assembly Bill 450 prohibits employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent was to provide a judicial warrant. The law does not prohibit inviting immigration officers into nonpublic areas, where no employees are present, in order to verify the existence of a warrant.

Except as required by federal law, the law will also prohibit an employer from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order. This prohibition would not apply to I-9 Employment Eligibility Verification forms and other documents for which a notice of inspection has been provided to the employer.

The law also requires employers provide a notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection.

The law grants the state labor commissioner or the attorney general the exclusive authority to enforce these provisions. The law prescribes penalties for failure to satisfy the prohibitions described above of $2,000–$5,000 for a first violation and $5,000–$10,000 for each subsequent violation.

  1. SEXUAL HARASSMENT PREVENTION TRAINING ADDITION AND CHANGE YOUR REQUIRED POSTINGS

Senate Bill 396 expands the requirement that employers provide sexual harassment training to supervisors. Current law requires employers with 50 or more employees to provide sexual harassment and abusive conduct prevention training every two years, or within six months of an individual’s assumption of supervisory duties. This bill requires covered employers to include training on harassment based on gender identity, gender expression, and sexual orientation.  This law also amends section 12950 that requires all employers to post DFEH’s poster regarding transgender rights in a prominent and accessible location in the workplace.

ACTION NEEDED:

  • Update your training and postings
  1. NEW LIABILITY CHANGE FOR GENERAL CONSTRUCTION CONTRACTORS & SUBS

Assembly Bill 1701 holds construction contractors liable for the wage and hour violations of their subcontractors. As a result, a direct contractor making or taking a contract (entered into on or after January 1, 2018) in California for the erection, construction, alteration, or repair of a building, structure, or other private work will be liable for any debt owed to a wage claimant incurred by a subcontractor at any tier acting under the contractor. The law gives contractors the right to demand inspection of a subcontractor’s payroll data in order to ensure compliance with wage and hour obligations.

The contractor’s liability will extend only to any unpaid wage and fringe or other benefit payments or contributions; including interest owed, but would not extend to penalties or liquidated damages. Either the state labor commissioner or a wage claimant may bring a civil action against a direct contractor to collect wages owed.

  1. CHANGE IN LABOR COMMISSIONER’S POWERS

Senate Bill 306 authorizes the state labor department “to commence an investigation of an employer, with or without a complaint being filed, when specified retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the Labor Commissioner.” Previously, the agency could take action only upon receipt of an employee complaint.

The law authorizes the labor commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for injunctive relief. If an employer discharges or imposes adverse action on an employee for claiming that the employer retaliated because the employee asserted his or her rights, the law would require courts “to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred.” The injunctive relief remains in force until the agency completes its review or issues a citation. The injunctive relief would not prohibit the employer from disciplining or discharging the employee for conduct that is unrelated to the claim for retaliation.

The labor commissioner would be vested with the authority to issue monetary and other relief, including an order to reinstate the employee and pay back wages

      8. CHANGE IN CALIFORNIA’S MINIMUM WAGE

As of January 1, 2018 the minimum wage for employers with 26 or more employees increased to $11.00 per hour and the salary threshold for exemptions purposes is now $45,760 annually.  The minimum wage for employers with 25 or fewer employees increased to $10.50 per hours and the salary threshold for exemption for those employers is $43,680 annually.

ACTION NEEDED: 

  • Ensure all employees are making the appropriate minimum wage
  • Ensure all exempt employees are making at least $45,760 (employers with 26+ employees) or $43,680 (employers with 25 or fewer employees)

    9. CHANGE IN MARIJUANA LAWS

While marijuana possession has been legalized under California law since earlier in 2017, January begins dispensary sales to recreational users.  Despite this change to state law, marijuana remains illegal under Federal law.  In California, each employer is allowed to create and enforce a Drug Free Workplace program.  Impairment due to marijuana, like any other substance, need not be allowed in California.  Drug screening, both for pre-employment purposes and observed impairment screening, remains a bona fide process to use for potential new hires and current employees demonstrating impairment while working.

SB 65 now extends alcohol consumption and “open container” laws to Prop 64 as well.  Driving while high will be treated the same as, or similarly to, driving under the influence of alcohol.

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