A Flurry of New California Laws Going Into Effect January 1, 2018

Monday was California Governor Jerry Brown’s final day to sign new legislation.  This included a flurry of new laws impacting California employers.  All new legislation goes into effect on January 1, 2018.  Highlights below.

New Parent Leave Act for Small Employers (SB 63) 

• This New Parent Leave Act or Baby Bonding Act extends the obligation to provide child bonding leave to employers with 20 or more employees. Beginning January 1, 2018, employers with 20 to 49 employees must provide child bonding leave to employees working at locations with at least 20 employeeswithin a 75-mile radius.
• SB 63 also requires the Department of Fair Employment and Housing to create a parental leave mediation program which would allow an employer to require a charging party to go to mediation within 60 days of receiving a right-to-sue notice. An employer’s demand for mediation under this program prevents an employee from filing a civil action until the mediation is “complete” or the employee elects not to participate.

Ban-The-Box Expanded to Small Employers (AB 1008)

• Ban-the-box legislation now applies to all employers with 5 or more employees. Employers cannot ask criminal history information on job applications and are prohibited from inquiring about, or considering, conviction history information at any time before a conditional offer of employment.
• If an employer decides to revoke an offer based on the results of a criminal background check, employers are required to go through a “fair chance” process outlined in the new legislation.

Questions on Salary History Banned (AB 168)

• As part of an Equal Pay effort, this law bans employers from asking questions about or considering an applicant’s prior salary history.
• This law also requires employers to provide applicants with pay scale information if requested.

New Sexual Harassment Prevention Training (SB 396)

• Beginning January 1, 2008, mandatory sexual harassment prevention training must include information on gender identity, gender expression, and sexual orientation. *Note: this required training applies only to employers of 50 or more employees.
• The legislation also requires employers to post a new DFEH poster on transgender rights (SB 396). The poster is attached.

Immigrant Worker Protection Act (AB 450)

• Also known as “sanctuary state” legislation, this bill prohibits employers from providing federal immigration enforcement agents access to non-public areas of a workplace without a warrant. It also requires employers to notify employees of Form I-9 inspections performed by federal immigration enforcement officials.

Domestic Violence Leave Law (AB 2337)

• This bill adds a notice requirement to the California Domestic Violence Law. The new notice is attached. It must be provided to new employees and other employees upon request.

Expanded Labor Commissioner Powers (SB 306)

• SB 306 enhances the Division of Labor Standards Enforcement (“DLSE”) ability to investigate complaints of retaliation. The new law permits the DLSE to investigate employers withoutreceiving a complaint of retaliation under certain conditions.  This includes if DLSE “suspects” that retaliation has occurred during the course of an employee’s wage claim, inspection, or certain immigration-related claims.

Action Items:

1. Remove all questions about salary history, criminal background information, and gender identifying information from applications, new employee paperwork, and any other Human Resource documents.
2. Evaluate your EEO policy to ensure it includes protections for transgender and “transitioning” employees. This is a reminder that FEHA also expanded transgender protections on July 1, 2017.  The July regulations explicitly prohibit an employer from making inquiries that, directly or indirectly, identify an individual on the basis of sex, gender, gender identity or gender expression.  The regulations also require employers to expressly prohibit discrimination against an individual who is transitioning, has transitioned or is perceived to be transitioning. California employers need to make sure that policies against harassment and discrimination specifically protect these employees.
3. Establish pay scales for new job listings in California. The new legislation does not outline what information must be included on the pay scale or require that it be provided in writing. Employers, however, should consider providing the pay scale information in writing in case of a dispute.
4. All hiring personnel should be trained on the new laws to ensure that they do not seek information from applications regarding salary history, criminal background information, and gender identifying information.
5. Update training materials for annual sexual harassment prevent training to include gender identity, gender expression, and sexual orientation. Consistent with the July 2017 regulations, employers should also include information on transitioning employees.
6. Evaluate the process for approving requests from the federal government for workplace searches.
7. Post DFEH poster on transgender employees.
8. Ensure new employees receive the Domestic Violence Leave Law Notice.