New California Employment Laws for 2018

December 19, 2017

New California Employment Laws for 2018

New employment laws in California will take effect on January 1, 2018 which will affect hiring practices, interaction with federal immigration authorities, and training practices. In addition, the legislature has created new rights against employers for certain transgender and gender-fluid employees and applicants.  All companies should review their hiring practices and update them if necessary.

Senate Bill 63, the New Parent Leave Act, requires businesses with 20 or more employees to provide up to 12 weeks of unpaid, job-protected leave for bonding with a new baby, an adopted child or a foster care placement. Previously, only businesses with 50 or more employees were required to offer such leave. The leave must be taken within one year of the child’s arrival and can only be used for baby bonding, not for dealing with a family member’s medical issues.

The law will have the greatest impact on businesses with 20 to 49 employees who are not required to offer leave under the Family and Medical Leave Act or the California Family Rights Act. As is the case for larger companies affected by those laws, an employer must maintain and pay for coverage under a group health care plan at the same level and conditions as if the employee were still working.

In addition, the employer must guarantee the employee will be reinstated at the same or a comparable position. Failure to provide this guarantee is a violation of the law equivalent to not offering leave. The legislature created a private right of action to enforce these rights against employers.

New Rules for Recruiting Employees

Assembly Bill 168 prevents prospective employers from asking about a candidate’s prior salary, compensation or benefits. In addition, an applicant may ask an employer, upon reasonable request, to provide the pay scale for the position to which they are applying. An applicant could voluntarily disclose salary information and the employer could use that voluntary disclosure in determining a salary. However, an employer cannot rely on salary history to determine whether or not to hire someone or what to pay the applicant. The law applies to all employers.

Assembly Bill 1008, also known as “ban the box” legislation, prohibits employers with five or more employees from asking about criminal history on job applications or at any time prior to a conditional offer of employment is made. If a criminal background check is required by federal, state or local law, AB 1008 does not apply.

The law requires that an employer seeking to use criminal history to justify an employment decision provide notice and an opportunity to respond, and limits the circumstances in which a criminal history can contribute to a hiring decision. The employer must determine that the conviction has a direct and adverse relationship to the specific duties of the job which would disqualify the applicant. In deciding to rescind the offer, the employer must consider three things: the nature and gravity of the offense; the time that has passed since the offense; and the nature of the job.  The statute contains a detailed notice and response procedure an employer must follow to consider criminal history in a denial of employment decision.

Thus, the statute creates a right for an applicant not to have criminal history otherwise considered. This right is enforceable by the Department of Fair Employment and Housing and the statute requires employers to inform employees denied employment based on criminal history of their right to file a complaint with the Department.

Hiring a convicted applicant presents problems for employers. Should they choose not to hire a convicted applicant, they run the risk of an employment discrimination suit. If they do hire a convicted applicant, they may run the risk of a negligent hiring/retention lawsuit should an incident or problem occur.

Assembly Bill 450, the Immigrant Worker Protection Act, protects workers from immigration enforcement while on the job. Employers cannot give federal immigration enforcement agents access to a non-public place of business without a judicial warrant or access, review, or obtain the organization’s employee records without a subpoena or court order. Employers violating the provisions of this new statute can be fined $2,000 to $10,000.

AB 450 also requires employers to notify employees that an immigration agency will be inspecting I-9 records or other employee records, within 72 hours of receiving notice of the inspection, and provide the results of the inspection to affected employees and their representatives. The employer also must disclose any obligations owed by the employer and employee as a result of the inspection. AB 450 also prohibits employers from re-verifying an employee’s work authorization except as required by federal law. 

Harassment Training on Gender Identity, Expression and Sexual Orientation

In California, an employer with 50 or more employees must provide at least two hours of classroom or other interactive training and education regarding sexual harassment to all supervisory employees within six months of them assuming a supervisory position. This training must also be repeated once every two years. The training is to include information and practical guidance about prohibiting, preventing and correcting sexual harassment and the remedies the employer offers to victims of sexual harassment. The training and education shall be presented by trainers or educators with knowledge of and expertise in the prevention of harassment, discrimination, and retaliation.

The California Workforce Innovation and Opportunity Act, SB 396, requires California employers with 50 or more employees to include, as a component of the sexual harassment training, information about discrimination based on gender identity, gender expression, and sexual orientation. The training must include practical examples to address such harassment.

Beginning January 1, 2018, California employers with five or more employees must display in a prominent and accessible location, a workplace poster from the California Department of Fair Employment and Housing which communicates transgender rights in the workplace.

Steps to Take to Address These Changes

  • Review employment applications (internet-based and otherwise) and delete criminal conviction history questions and salary history questions.
  • Provide specific instructions to those who interview and hire that they must avoid questions about salary history and criminal convictions for California positions. Check in with external recruiters and placement agencies to ensure they are not soliciting this information.
  • For employers with 20 to 49 employees update your employee handbook to include the New Parent Leave Act provisions and ensure that appropriate and compliant policies exist.
  • Ensure harassment prevention training includes a component on gender identity, gender expression and sexual orientation.
  • Statements regarding equal opportunity employment in all handbooks and promotional materials should include prohibiting discrimination based on gender identity, gender expression, and sexual orientation.
  • Update your employee handbook regarding the Immigrant Worker Protection Act and train your employees about their responsibilities should immigration enforcement call.
  • Provide appropriate training regarding immigrant worker protection to employees handling immigration related records and information.

Please contact the employment attorneys at Ericksen Arbuthnot for more information about these new laws, the training we can provide and the employment audits we offer. Let us help you meet your compliance obligations beginning January 1, 2018.

Andrew Kozlow and Graham Cridland are the co-chairs of the Employment practice. Andrew is a partner in the Oakland/East Bay office and can be reached at 510.832.7770 or akozlow@ericksenarbuthnot.com. Graham is a partner in the Sacramento office and can be reached at 916.483.5181 or gcridland@ericksenarbuthnot.com.