Laws Employers Must Know
Employers gain a competitive edge by keeping informed of 2018 California employment laws and implementing recommended actions of experienced legal counsel. With the rise of social media and instant reporting, professional and company reputations can be lost in a flash. Failure to understand and follow the laws can cost time, money and reputation. Transparency requires leadership, knowledge and action.
You’ll find below brief summaries of 2018 California employment laws. Please note that this is not a comprehensive list of all new laws, but the ones that will apply to most private employers in California. Full copies of the laws can be viewed by clicking on the links provided. These laws are listed in numerical order with Assembly bills first, followed by Senate bills.
We recommend you read the full text of these bills and consider implementing our recommendations. Please contact us if you would like further explanation on how a particular bill may apply to your company or organization.
This bill prohibits all employers from seeking out the salary history information of an applicant for employment. It further prohibits employers from relying upon an applicant’s salary history as a factor in determining whether to offer employment or what salary to offer.
This bill also requires employers to provide the pay scale for a position to a requesting applicant.
Recommended Actions for AB 168:
- Eliminate requests for salary history on your Employment Application form.
- Do not ask applicants any questions about salary history- this includes any questions about wages, compensation and benefits (on the record or off the record). If an applicant tells you their salary history or makes a salary demand based on past wages, simply tell the applicant that salary history is not a factor in determining whether to offer employment or what salary to offer. Make a written note in your interview notes that the applicant made an unprompted disclosure of the applicant’s salary history and was advised that salary is not a factor in the hiring decision or salary amount offered. Do not list what was disclosed.
- Do not conduct internet or other searches of public records in an effort to determine the applicant’s salary history.
- Instruct HR to provide notice, in writing, to recruiting agencies and background check companies, to exclude salary history inquiries as part of their process, and direct them not to provide salary history information to your company as the potential employer.
- It is OK to discuss an applicant’s compensation expectations and to ask questions to probe the applicant’s level of relevant experience and proficiency such as performance results, management experience, etc.
This bill seeks to ensure that all California workers, regardless of immigration status, enjoy the protections afforded to them under state law “without fear of harassment, detention, or deportation.”
According to the author, this bill will help achieve this by insisting that federal immigration enforcement agents meet the full procedural requirements of federal law and by making affected workers aware of federal enforcement actions and cognizant of their rights during such actions. This bill prohibits an employer from providing voluntary consent to a federal government immigration enforcement agent to access any non-public areas of a place of labor if the agent does not have a warrant, nor to review or obtain the employer’s employee records without a subpoena or judicial warrant.
This bill also requires an employer, upon reasonable request, to provide an affected employee a copy of the notice of inspection of I-9 Employment Eligibility Verification forms. Employers generally receive a written Notice of Inspection at least 3 days before the inspection. These immigration officials can inform the owner, designee, senior management official or registered agent of the business entity of an inspection in person or by certified U.S. mail, return receipt requested. Officials may also use subpoenas and warrants to obtain the forms without providing 3 days’ notice.
An employer who violates the voluntary consent provisions 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 access, review, or obtain the employer’s employee records without the consent of the employer or other person in control of the place of labor, the civil penalty shall not apply.
The exclusive authority to enforce this section is granted to the Labor Commissioner or the Attorney General and enforcement shall be through civil action. Any penalty recovered shall be deposited in the Labor Enforcement and Compliance Fund.
This bill also prohibits an employer from re-verifying the employment eligibility of a current employee (I-9), at a time or in a manner not required by specified federal law.
Recommended Actions for AB 450:
- Remind managers/supervisors and employees that California is a “Sanctuary State” and that you intend to follow these laws.
- All receptionists, front-office employees, managers/supervisors should be advised to immediately inform Senior Management or senior person in charge if a federal immigration officer or any government official appears and asks to look around the facility or view documents.
- Managers/supervisors must not give voluntary consent for an immigration officer (or any federal agent) to enter any non-public areas of employer or review any employee records.
- The most senior person onsite shall be instructed to take the enforcement officer to a non-public area, where employees are not present, for the purpose of verifying whether the immigration enforcement agent has a judicial warrant, provided no consent to search non-public areas is given in the process. If no warrant or subpoena, advise that the company will comply with their request once it receives a judicial warrant. If the agent only wants to review the I-9s, request a written Notice of Workplace Inspection (NOI) and advise that once the notice is received the records will be available as required by law.
- Once a Notice of Inspection (NOI) is received, post on employee bulletin board a notice in the language the employer normally uses to communicate employment-related information to employees, within 72 hours of receiving the NOI, which shall include 1) the name of the immigration agency issuing the notice, the date the employer received the NOI and the nature of the inspection. Plus, post the NOI. The law also outlines what to do if there is an inspection and there are I-9 deficiencies. Assign responsibility to HR or Senior Manager for posting this notice to affected employees.
- HR, Managers or supervisors must not ask employees to reverify a current employee at a time or in a manner not required by the employment eligibility verification provisions of IRCA.
- We recommend employers read this in-depth discussion of this law that pits California law against federal law and foreseeable challenges: https://www.calpeculiarities.com/tag/ab-450/
This bill prohibits employers with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history, to inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer, and, when conducting a conviction history background check, to consider, distribute, of disseminate information related to specified prior arrests, diversions and convictions.
Consideration of an applicant’s criminal history is permissible only after the employer has made a conditional offer of employment. At that point, employers may not rescind the employment offer based on the criminal history until they have performed an individualized assessment.
If an employer intends to deny an applicant a position based solely or in part because of the applicant’s conviction history, the employer is required to make an individualized evaluation of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job, and to consider certain factors, including the nature and gravity of the offense or conduct, how long ago the conviction occurred, the completion of a sentence, and the nature of the job held or applied for.
If the employer determines that denial of employment is appropriate based upon the required evaluation, the employer must then provide the applicant written notification of the decision. This written notification must include, among other things, identification of the disqualifying conviction and a copy of the conviction report, if any, as well as an explanation of an applicant’s right to dispute the accuracy of the conviction report and/or provide supporting documentation to validate their dispute. The bill provides for specific time frames in which a candidate is allowed to respond to a preliminary denial of employment.
If an employer then makes a final decision to deny employment based solely or in part on conviction history, a second written notification must be provided to the applicant, which must include:
- the final denial or disqualification,
- any existing procedure the employer has to challenge the decision or request reconsideration, and
- the right to file a complaint with the Department of Fair Employment and Housing.
Recommended Actions for AB 1008:
- Ban the box-eliminate inquiries on criminal history on Employment Application Form.
- Do not ask applicants about criminal history, including prior arrests, convictions or diversions during the recruiting process.
- If applicant volunteers criminal history information during the recruiting process, inform the applicant that the company does not consider conviction history until after a conditional employment offer has been made and that it intends to comply with all laws that regulate conviction history.
- Keep all information about applicants’ and employees’ criminal records confidential and use only for the purpose for which it is intended. Seek legal assistance when in doubt about criminal history.
This bill conforms state law to the federal Uniformed Services Employment and Reemployment Rights Act (USERRA) by protecting service members from hostile work environments in their civilian jobs. California Military Veterans Code (MVC) Section 394 has been updated to reflect instances where Service members experience blatant hostilities in regard to their military commitment/service at their place of employment.
Recommended Actions for AB 1710:
- Prohibit discrimination based on military or veteran status in its EEO and harassment policies. Update your employee handbook to reflect this.
- Train managers and supervisors and other hiring staff. Remind them that the current law prohibits:
- 1) An employer from discharging any person from employment, or from retaliating against that person because of the performance of any ordered military duty or training or by reason of being a service member. Further prohibits an employer from hindering or preventing that service member from performing any military service or from attending any military encampment or place of drill or instruction he or she may be called upon to perform or attend by proper authority.
- 2) It is an unlawful employment practice for an employer, because of a person’s military or veterans’ status, a) to refuse to hire or employ the person; b) to refuse to select the person for a training program leading to employment; c) to bar or to discharge the person from employment or from a training program leading to employment; or d) to discriminate against the person in compensation or in terms, conditions, or privileges of employment.
- 3) It is an unlawful employment practice for an employer to make any non-job related inquiry of an employee or applicant that expresses, directly or indirectly, any limitation, specification, or discrimination as to military and veteran status.
- Train managers/supervisors and hiring staff to refrain from making any inquiries or comments that might create the impression that the employer is hostile to military and veteran members.
- Know the law when employees ask for time off for military duty or training. If unclear on what to do, seek legal assistance.
This bill expands the number of employers required to provide employees with parental leave to bond with a new child (called parental leave). Previously only employers with 50 or more employees were required to provide “baby bonding” leave to eligible employees. Now employers with 20 or more employees will be required to provide up to 12- weeks of unpaid leave to eligible employees.
This new law will have the greatest impact on employers with 20 to 49 employees who are not currently required to provide baby bonding leave under the federal Family and Medical Leave Act (FMLA) or the state California Family Rights Act (CFRA). This bill has no impact on employers ready covered by FMLA and CFRA. The devil is in the details- thus read this bill in its entirety.
Recommended Actions for SB 63:
- Remind managers/supervisors that Parental Leave is a protected right and employees shall not be retaliated against for exercising these rights.
- Educate managers/supervisors:
- To be eligible for the new parent leave, an employee must: a) Have worked for the employer more than 12 months; b) Have worked at least 1,250 hours during the prior 12-month period; and c) Work at a worksite where there are at least 20 employees within a 75-mile radius.
- If an employee takes this leave, an employer must maintain and pay for coverage under a group health plan at the same level and conditions that coverage would have been provided if the employee had continued working.
- Before the leave starts, an employer must provide the employee with a guarantee of reinstatement to the same or comparable position.
- Update your Leave of Absence policy and forms to incorporate this new parental leave legal requirement. Distribute policy to all employees.
This extensive bill, which became effective on June 27, 2017, updates penalties and processes for certain Labor and Government Code Sections, and expands the rights of the Labor Commissioner.
Sec. 8: Division of Labor Standards Enforcement (DLSE) Procedure Changes
- This section of the bill updates Labor Code Section 90.6 to increase the amount a time the Division of Labor Standards Enforcement (DLSE) can investigate a violation without affecting the statute of limitations for the claim and adds a tolling period of 12 months after an investigation by the field enforcement unit is opened.
- After expiration of the 12- month period, the time under the applicable statute-of -limitations will resume running.
- The section of the bill updates Labor Code Section 98.7 to extend the period of time an employer has to comply with remedies required by the DLSE for violations from 10 days up to 30 days. If after 30 days the employer does not comply and the DLSE is the prevailing party in an action to enforce the remedy, the employer shall be responsible for attorney’s fees incurred by the Labor Commissioner. If an employer still refuses to comply after an order of the court, in addition to other penalties, employer shall be assessed a fine of $100 per day up to a maximum of $20,000 for non-compliance which shall be paid to the affected employee.
Sec. 11: Employer Defense Evidence Exclusion
- This section of the bill adds Labor Code Section 1174.1 specifying that employers, or any person who may be individually liable for wage and hour violations, will be precluded from introducing into evidence any books, documents or records when such books, documents and records (these include payroll, time, employment records that are required to be maintained at the worksite by employers) are not provided to the Labor Commissioner upon a request with at least 15 days’ notice.The evidence cannot be used in defending administrative claims or in seeking a writ from a court. The bill contains an exception for inadvertent errors, and also permits the Labor Commissioner to grant extensions of time to comply with its requests for documents.
Secs. 29 and 30: Workplace Safety.
- The sections of this bill amend Labor Code Sections 6310 and 6427 by expanding the protections against discrimination for employees related to safety. It prohibits a person from discharging or in any manner discriminating against an employee because the employee reports a work-related fatality, injury, or illness. It also prohibits discrimination based upon an employee’s request to have access to the employer’s safety records or based upon any rights the employee exercises under federal health and safety law.
- The bill also increases the penalty for a violation of an occupational safety or health standard, order, or prohibition when the violation is specifically determined to be non-serious. The penalty can now run up to $12,471 per violation (previously $7,000). The same increase applies to violations of posting or record-keeping requirements. The penalty is increased up to $124,709, but not less than $8,908, for each willful or repeated violation of any of the occupational safety or health standards or orders.
Recommended Actions for SB 96:
- Know, follow and enforce all wage and hour laws and employer policies and practices for wage and hour issues.
- Ensure your employees keep accurate records of time worked.
- During a wage and hour investigation provide HR with all records on the claim.
- Encourage employees to report workplace accidents.
- Inspect your work area often and report and correct workplace hazards and unsafe work practices.
- Do not make negative comments to others about an employee who reports a work-related injury or illness. Do not retaliate against any employees for reporting workplace safety issues, filing a workers’ comp claim and participating in an investigation.
This bill declares it is the policy of the State of California that every person deserves full legal recognition and equal treatment under the law and to ensure that intersex, transgender, and nonbinary people have state-issued identification documents that provide full legal recognition of their accurate gender identity. Gender identification is fundamentally personal, and the state should endeavor to provide options on state-issued identification documents that recognize a person’s accurate gender identification. This bill provides three equally recognized gender options on state-issued identification documents—female, male, and nonbinary—and an efficient and fair process for people to amend their gender designation on state-issued identification documents so that state-issued identification documents legally recognize a person’s accurate gender identification. This bill defines transgender, non-binary and intersex terms. This bill does not become effective until September 1, 2018.
Recommended Actions for SB 179:
- Although this bill does not contain any employment provisions, it does define terms that managers and supervisors should be aware of.
- Most likely these terms will be included in the mandatory sexual harassment training (see SB 396 below) required for employers with 50 or more employees. We recommend managers/supervisors become familiar with these terms prior to the scheduled training.
This bill, effective July 1, 2018, clarifies when an officer or member of the board of directors of a quasi-public or private corporation, members of boards of directors, general partners in a partnership and managing members of LLCs may be excluded from workers’ compensation laws and addresses waiver procedures.
This bill expands the authority of the Labor Commissioner. The DLSE will be authorized to investigate an employer—with or without a complaint being filed—when, during a wage claim or other investigation, the Labor Commissioner suspects retaliation or discrimination. The bill will also allow the Labor Commissioner or an employee to seek injunctive relief (that the employee be reinstated pending resolution of the claim) upon a mere finding of “reasonable cause” that a violation of the law has occurred. That injunctive relief, however, would not prohibit an employer from disciplining or firing an employee for conduct that is unrelated to the retaliation claim.
The bill also authorizes the Labor Commissioner to issue citations directing specific relief to persons determined to be responsible for violations and to create certain procedural requirements.
Recommended Actions for SB 306:
- Instruct managers and supervisors to immediately report any claims of retaliation or discrimination to HR or designated Senior Management.
- Maintain confidentiality of the names of any employees who files a retaliation or discrimination complaint, except on a need-to-know as determined by HR or designated Senior Management.
- Refrain from making any negative statements or taking any adverse action against anyone who has filed a complaint of discrimination, harassment or retaliation. If manager or supervisor accused of retaliation, discrimination or harassment, do not tell your side of the story to your staff or others in the workplace, other than to HR or designated Senior Management or during the investigation process.
- Monitor the treatment of employees who file a workplace complaint or who provide information related to a complaint. Employers should carefully scrutinize any proposed adverse action against a complainant or witness to ensure that it is based on a legitimate and not retaliatory reason.
- Know and follow are company policies on harassment, discrimination, and retaliation. Follow all policies consistently, including wage and hour policies.
New Poster to be Posted on January 1, 2018: Post This.
This bill requires that employers with 50 more employees include, as a part of the existing sexual harassment training, provide training on harassment based on gender identity and adds transgender and gender nonconforming to the list of individuals facing employment barriers for the purposes of workforce investment training.
These regulations address key topics such as the rights of employees to use restrooms, locker rooms, and other similar facilities corresponding to their gender identity; to dress in accord with their gender identity and expression; and to be addressed by their preferred name and gender pronoun. They also provide additional clarity regarding the circumstances under which employers are permitted to collect information about employees’ genders, and/or use such information.
Recommended Actions for SB 396:
- Train managers/supervisors re this new law on Gender Identity, Gender Expression, and Sexual Orientation
- Post Transgender Poster.
- Instruct interviewers must refrain from asking any questions designed to detect a person’s gender identity, including asking about their marital status, spouse’s name, or relation of household members to one another, or asking questions about a person’s body or whether they plan to have surgery.
- Enforce dress code in a non-discriminatory manner, which means that, unless an employer can demonstrate business necessity, each employee must be allowed to dress in accordance with their gender identity and gender expression. Transgender or gender non-conforming employees may not be held to any different standard of dress or grooming than any other employee.
- Make it a goal to become better-versed and more comfortable with gender identity terms to communicate with employees in a professional and respectful way.
- All employees should be addressed by the pronoun that corresponds to their gender identity, upon request. While pronouns can be confusing, intentional refusal to respect an employee’s gender identity (for example, intentionally referring to the employee by a pronoun that does not correspond to the employee’s gender identity) violate company policies and may violate the law. If you are unsure what pronoun a transitioning co-worker might prefer, you can politely ask your co-worker how they would like to be addressed. While some transgender people would like to be referred to using conventional pronouns “he/him/his” and “she/her/hers”, keep in mind that some transgender and gender nonconforming people will ask for gender neutral pronouns (e.g., “they/them/theirs”).
- If a manager or supervisor receives a request regarding any of these topics (preferred name or gender, or the use of a different facility), HR or Senior Management should respond to this inquiry quickly, confidentially, respectfully, and consistently.
- All managers/supervisors must comply with FEHA’s Regulations regarding transgender identity and expression. You may find full text here: https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2017/06/FinalTextRegTransgenderIdExpression.pdf.
- Update employers Harassment, Discrimination & Retaliation Prevention Policy to comply with this new law. Distribute all revised policies to employees and have them sign acknowledgment of receipt of policies.
Laws Re Specific Industries
Reminders of Existing Laws
Minimum Wage Increases: On 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. Remember, that local minimum wage ordinances and living wage ordinances may also apply to your business.
Happy digesting and implementing. Wishing you all a Happy New Year.
The Frog Knows, aka Chuck Farrar. Contact Chuck with questions.
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