2018 Legal Update Recap
As we ring in the new year, employers should keep an eye on the many changes in law going into effect as of January 1, 2018. Below is a recap of the changes. There may be additional changes coming beyond what I am recapping here for you.
California AB-1008 §12952:
This law makes changes to the California Fair Employment and Housing (DFEH) regulations for employers of 5 or more employees, as follows:
The bill attempts to reduce barriers for persons seeking employment by prohibiting any form of question regarding criminal background, convictions etc., whether verbal or on a pre-employment application or fact discovery process prior to issuing a contingent offer of employment, and that offer being accepted by the applicant. It is strongly suggested that the contingent offer as well as acceptance be in written format to facilitate proof of compliance.
The law outlines that an employer may not:
Consider, distribute, or disseminate information about any of the following while conducting a conviction history background check regarding any application for employment prior to the acceptance of a conditional employment offer:
- Arrest not followed by conviction, except in the circumstances as permitted in paragraph (1) of subdivision (a) and subdivision (f) of Section 432.7 of the Labor Code;
- Referral to or participation in a pretrial or post-trial diversion program;
- Convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
To interfere with, restrain, or deny the exercise of, or the attempt to exercise, any right provided under this section.
This section shall not be construed to prevent an employer from conducting a conviction history background check not in conflict with the provisions of subdivision (a), namely after the acceptance of a conditional offer of employment.
An employer that intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history must undergo an individualized assessment of whether the applicant’s criminal/conviction history has a direct and adverse impact with the specific duties of the job, such that the negative impact is justifiable reason for denying the applicant the position. In making the assessment described in this paragraph, the employer must consider all the following:
- The nature and gravity of the offense or conduct;
- The time that has passed since the offense or conduct and completion of the sentence;
- The nature of the job held or sought.
It is recommended that the employer may, but is not required to, commit the results of this individualized assessment to writing.
If the employer makes a preliminary decision that the applicant’s conviction history disqualifies the applicant from employment, the employer shall notify the applicant of this preliminary decision in writing. That notification may, but is not required to, justify or explain the employer’s reasoning for making the preliminary decision. The notification shall contain all the following:
- Notice of the disqualifying conviction or convictions that are the basis for the preliminary decision to rescind the offer;
- A copy of the conviction history report that was obtained, if any;
- An explanation of the applicant’s right to respond to the notice of the employer’s preliminary decision before that decision becomes final and the deadline by which to respond. The explanation shall inform the applicant that the response may include submission of evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, evidence of rehabilitation or mitigating circumstances, or both.
The employer must provide the applicant at least five business days to respond to the notice before the employer may make a final decision.
If, within the five business days, the applicant notifies the employer in writing, that the applicant disputes the accuracy of the conviction history report that was the basis for the preliminary decision to rescind the offer and that the applicant is taking specific steps to obtain evidence supporting that assertion, then the applicant shall have five additional business days to respond to the notice.
The employer shall consider the new information submitted by the applicant before making a final decision.
If an employer makes a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer shall notify the applicant in writing of all the following:
- The final denial or disqualification. The employer may, but is not required to, justify or explain the employer’s reasoning for making the final denial or disqualification;
- Any existing procedure the employer has for the applicant to challenge the decision or request reconsideration; and
- Their right to file a complaint with the department.
This section does not apply in any of the following circumstances:
- To a position for which a state or local agency is otherwise required by law to conduct a conviction history background check;
- To a position with a criminal justice agency, as defined in Section 13101 of the Penal Code;
- To a position as a Farm Labor Contractor, as described in Section 1685 of the Labor Code.;
- To a position where an employer or agent thereof is required by any state, federal, or local law to conduct criminal background checks for employment purposes or to restrict employment based on criminal history. For purposes of this paragraph, federal law shall include rules or regulations promulgated by a self-regulatory organization as defined in Section 3(a)(26) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203), pursuant to the authority in Section 19(b) of the Securities Exchange Act of 1934, as amended by 124 Stat. 1652 (Public Law 111-203).
California AB 168 – Salary History Ban – Labor § 423.3
This new law applies to ALL employers within the state of California, regardless of size:
An employer shall not, orally or in writing, personally or through an agent, seek salary history information, including compensation and benefits, about an applicant for employment. Additionally, the employer, upon request shall provide the established pay scale for a position for which the applicant is applying.
The employer is not permitted to use prior pay history from past jobs as a basis for the rate of pay offered to an employee.
This law pertains to all employers regardless of size.
Employers should review their Application for Employment as well as their interviewing processes and procedures to ensure that all questions regarding criminal background and salary history are removed from forms and processed involved in the hiring procedures.
California AB 46 – Extension of Equal Pay Law
This new law extends the existing requirements of labor § 1197.5, the equal pay statute to both public and private employers.
California SB 63 Parental Leave Act § 12945.6:
Existing law requires employers with 50 or more employees within a 75-mile radius to provide up to 12 weeks of protected but unpaid time off work for qualified employees who have been employed 12 or more months, and who have worked 1250 hours within the prior 12 months. This leave time may be used for a variety of qualifying situation, including birth, adoption, and foster care placement to bond with the new child within the first 12 months of the qualifying situation. This also requires the employer to continue payment for group health insurance which is in place at the beginning of the leave, in the same manner as prior to the leave.
The Parental Leave Act extends this leave requirement for unpaid time off to employers of at least 20 employees, up to 49 employees within a 75-mile radius of the person requesting the leave. The same 12 months of employment and 1250 hours worked in the prior 12 months will apply to this leave as well.
In an instance where both parents of a new child are employed with the same employer, the time off may be capped at the total amount of a combined 12 weeks, which the employer may approve to run simultaneously.
This new law prohibits any employer from interfering with, restraining, or denying an employee time off for which they are legally entitled under the law. This includes refusing to hire or for denying the exercise of the rights to time off, or terminating an employee for use of the time off.
Click here for the new 2018 Paid Family Leave pamphlet
California SB 396 § 12950 and 12950.1
Regulated by the California Fair Employment and Housing (DFEH), this bill requires employers with employees within California who employ 50 or more employees (in any location) to conduct Sexual Harassment Prevention Training of at least 2 hours every other year. With this new law, this training must specifically include training in the areas of harassment based on:
- Gender identity;
- Gender expression;
- Sexual orientation.
This law also requires the employer to place a poster in a location frequented by all employees that contains material about the illegality of sexual harassment of these areas as well as including language about the rights of transgender employees.
Each employer must also distribute the informational pamphlet available through the DFEH that outlines the following areas: Click here for a copy of the new pamphlet.
- Illegality of sexual harassment;
- Definition of sexual harassment under state and federal law;
- Description of sexual harassment to include examples;
- The internal complaint process available to all employees;
- The legal remedies and complaint process available through the DFEH;
- Directions on how an employee may contact the DFEH; and
- A description of the protections against retaliation for an employee making a complaint.
California AB 450 Immigrant Worker Protection Act Labor § 7285.2
Except as otherwise required by federal law, the bill would prohibit an employer or other person acting on the employer’s behalf from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent provides a judicial warrant, except as specified. This bill also implements rules as regulation that prohibit an employer or other person acting on the employer’s behalf 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, subject to a specified exception.
An employer who violates the provisions of this law shall be subject to a civil penalty of two thousand dollars ($2,000) up to five thousand dollars ($5,000) for a first violation and five thousand dollars ($5,000) up to ten thousand dollars ($10,000) for each subsequent violation. If a court finds that an immigration enforcement agent was permitted to enter a nonpublic area of a place of labor without the consent of the employer or other person in control of the place of labor, the civil penalty shall not apply. “Violation” means each incident when it is found that law was violated without reference to the number of employees, the number of immigration enforcement agents involved in the incident, or the number of locations affected in a day.
The law also requires employers to provide notice to affected employees (and/or their agents) within 72 hours of inspection results within 72 hours of the inspection. The notice must include the following:
- The name of the immigration agency conducting the inspection of I-9 employment eligibility forms or other employment records;
- The date that the employer received notice of the inspection;
- The nature of the inspection to the extent known;
- A copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
This law is to be enforced by the California Labor Commissioner or the Attorney General.
California SB 306
This law expands the employment protection rights for employees who have raised a complaint or a whistle blower concern which resulted in retaliation, and/or adverse employment action toward the employee. The law permits both the employee AND the Labor Commissioner to seek an injunction in court of law against the adverse employment action, pending an investigation and or hearing to determine the facts of the issue. As such, with this law, an employer can be forced to reinstate the aggrieved employee pending litigation on the matter.
The law authorizes the Labor Commissioner to commence an investigation, with or without the employee filing an actual complaint, when specified retaliation or discrimination is suspected during a wage claim or other specified investigation being conducted by the Labor Commissioner.
The bill also authorizes the 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 prescribed injunctive relief. The bill requires a court, if an employee has been discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that cause exists to believe a violation has occurred.
The bill provides that the temporary injunctive relief would not prohibit the employer from disciplining or terminating an employee for conduct that is unrelated to the claim of retaliation.
The bill also authorizes the commissioner to issue citations directing specific relief to persons determined to be responsible for violations. The bill establishes review procedures, including procedures for requesting a hearing before a hearing officer for the commissioner and for a petition for a writ of mandate.
The bill outlines that an employer who willfully refuses to comply with a final order pursuant to the bill to pay prescribed civil penalties directly to the affected employee.
California AB 1701 Joint Liability for General Contractors
This bill makes a general contractor on a private construction project liable to wages and fringe benefits. As such the general contractor can be held liable for unpaid wages and fringe benefits for employees working on the job site under the general contractor. The bill authorizes the Labor Commission to bring action against the general contractor as if they had directly hired the worker and failed to pay wages and fringe benefits. This includes liability for interest, but not penalties and liquidated damages.
California AB 260 and SB 225
AB 260 extends existing requirements for certain employers to post notices regarding human trafficking as well as the hotline for assistance. This law extends that requirement to hotels, motels and bed and breakfast establishments.
SB 225 requires that the notice contains information that he victim or witness to human trafficking may send a text message to a specified number to obtain assistance, support and services.
California SB 258 – Cleaning Product Right to Know Act of 2017
This new law affects manufacturer of certain products in the air care, automotive, cleaning or polish, and floor maintenance products. The law also applies to businesses that have such products in their workplace.
Employers who have such products in the work place must maintain a product Safety Data Sheet in a location accessible to the employees.
California SB 490 – Barbering and Cosmetology Act
This law requires payment of wages in the form of commission for employees who are licensed under the Barbering and Cosmetology Act to due and payable at least twice per month on a designated pay day. This also authorizes the employee and employer to a commission in addition to an hourly pay rate.
This law requires wages that are paid to an employee for providing services for which a Barbering and Cosmetology license is required, and when paid as a percentage or a flat sum portion of the sums paid to the Company by the client (recipient of such service), and for selling goods, constitute commissions, provided that the employee is paid, in every pay period in which hours are worked, a regular base hourly rate of at least two times the state minimum wage rate for all hours worked in addition to commissions paid.