California: New Employment Laws in 2018

Beginning on January 1, 2018 there are a number of new employment laws going into effect in California that employers should be aware of.  Read below for details regarding five of these new laws. 

Ban The Boxemploymentlawupdate

California now joins many other states in enacting a “ban the box” requirement. California employers with five or more employees will be prohibited from asking an applicant, prior to making a conditional employment offer, about their criminal and/or conviction history. This includes both verbally asking and asking on any form such as an employment application. This also means background checks cannot be performed until after an applicant has been offered an employment opportunity with the company.

If an employer decides to deny employment based on conviction history of the applicant, there’s a specific process that must be followed. First, an individual assessment should be made on a case by case basis to determine whether a relationship exists between the nature and type of conviction and the duties of the position (such as a conviction for embezzlement for a position that deals with the company’s finances). An employer cannot have a “blanket” policy that prohibits any previous convictions. An employer must also take into consideration the severity of the conviction as well as the amount of time that has passed since the conviction when making a determination.

The applicant must be notified in writing when they have been determined to be disqualified from hire. This notification should provide the applicant with the conviction that has disqualified them from hire, a copy of the conviction history, and an explanation of the applicant’s rights to respond to the employer before a final decision has been made. The applicant must be given at least five business days to respond to the employer before a final decision is made.

If after a response from the applicant the employer still decides to disqualify the applicant from employment, a notice must be provided to the applicant in writing informing them of the final decision as well as their right to file a complaint with the Department of Fair Employment and Housing (DFEH).

Employers should review their current pre-employment forms and applications to remove any questions regarding criminal and/or conviction history.  You should also be sure that all staff involved in the hiring process are aware of the new requirements so that no questions are asked about criminal and/or conviction history during the interviewing and hiring process.

To read the full text of this new law (A.B. 1008), click here.

New Transgender Rights Poster Requirement and Gender Identity and Sexual Orientation Harassment Training

California employers with five or more employees will be required to post a new notice regarding transgender rights. This posting should be in a place where employees can easily access it.  A copy of the poster is available by clicking here.

Employers with 50 or more employees in California are already required to provide at least 2 hours of sexual harassment training every 2 years. The new law requires employers to include training on gender identity, gender expression and sexual orientation harassment during the required training. The training must be provided by an individual with knowledge and expertise in these topics and must include practical examples.

To read the full text of this new law (S.B. 396), click here.

New Parental Leave Requirement for Small Businesses

Employers with 20-49 employees will be required to provide at least 12 weeks of unpaid time off to eligible employees for “baby bonding” within the first year following birth, adoption, or foster care placement of a child. Employees are eligible for this leave after working for the company for at least 12 months and working at least 1,250 hours in the previous 12 months.

This leave can be unpaid, however employees must be permitted to use any accrued vacation pay, paid sick time, or any other paid time off earned while they are on their leave of absence.

Prior to the beginning of the leave of absence, employers must provide a guarantee of employment in the same or a comparable position at the end of the employee’s leave of absence. Failure to do so will deem the employer to have refused to allow the leave.

Employers must maintain and pay for group health insurance during the leave of absence under the same conditions that would have been provided if the employee continued to work.

To read the full text of this law (S.B. 63), click here.

Inquiries Regarding Salary and Benefit History Prohibited

Applicants cannot be asked, directly or indirectly, about their current compensation or compensation in previous positions. This includes both wage and benefit information.  Employers are also prohibited from asking an applicant’s current or former employer about salary or benefit history.

In addition, employers will now be required to provide applicants with a salary range for a position when requested by the applicant.

Applicants are not prohibited from “voluntarily and without prompting” discussing their previous pay and benefit information. In the event that they do share this information, an employer can use that information to determine the salary offered to that applicant. However, it is unlawful in California to use only salary history when determining an employee’s salary when doing so causes a gap in pay from others in the same position.

Employers may ask applicants about what their salary expectations are to find out what they are hoping to make.

Employers should review any pre-employment applicants that are completed by applicants to remove any questions regarding compensation history. Also, make sure all hiring staff members are aware of the new law to prevent them from asking unlawful questions during the interviewing and hiring process.

To read the full text of the law (A.B. 168), click here.

Immigration Enforcement

Employers will be prohibited from providing “voluntary” access to their non-public work areas to Immigration and Customs Enforcement (ICE) without a warrant or subpoena. This also includes access to employee records without a warrant or subpoena. Employers who violate either requirement could be assessed a civil penalty of between $2,000 – $5,000 for a first violation and between $5,000 – $10,000 for any subsequent violation(s).

There are also new notification requirements for employers. In the event of an I-9 inspection or inspection of other employment records, employers must provide employees notice within 72 hours of receiving notice that the inspection will be taking place. The Labor Commission will be providing a template notice for this purpose by no later than July 1, 2018.

If an employee requests a copy of the Notice of Inspection of I-9 forms the employer must provide a copy.

After an inspection, employers are required to provide a notice to any affected employees (and their representatives, if applicable) within 72 hours of receiving the inspection results. This notice must include details of the obligations of the employer and the affected employee as a result of the inspection. This notice must be provided in writing and in person, when possible. If an employer is not able to provide the notice in person it can be provided via mail or e-mail.

Under the new law, employers are also prohibited from re-verifying employment eligibility of existing employees unless required to do so under federal law. Employers who violate this will be subject to a civil penalty of up to $10,000 per violation.

To read the full text of this new law (A.B. 450), click here.