United States: 2018: California Employment Laws On The Horizon

Are you finally caught up on all of the new California laws taking effect in 2017?  Then begin preparing for 2018 because the California legislature has been busy drafting another set of employment related laws.  Here is a sneak peak of some of the more notable proposals that may be coming down the pike.  For now, these are only proposed laws that have neither passed the legislature nor been signed into law.  If they do become laws, their substance may ultimately change substantially.

Opportunity to Work Act (AB 5)—Mandates Offering Additional Hours to Existing Employees Before Hiring New Employees

AB 5, the "Opportunity to Work Act," would require employers with more than 10 employees in California to offer additional hours of work to existing non-exempt employees before hiring additional employees or subcontractors.  Employees would be allowed to either file a complaint with the Labor Commissioner or file their own civil action for which they would be entitled to attorneys' fees.  The bill also imposes notice posting and document retention requirements on employers.

The proposed law is similar to San Jose's recent Opportunity to Work Ordinance, which we previously blogged about here.  However, AB 5 would apply to many more employers and is more burdensome.  For example, the San Jose Ordinance only applies to employers with 35 or more employees, but AB 5 would apply to employers with as few as 11 employees.  Similarly, while the San Jose Ordinance allows for a hardship exemption due to impracticability, impossibility, or futility, there is no such exemption currently contemplated in AB 5.

Ban the Box (AB 1008)—Prohibits Asking Applicants About Criminal History

Similar to Los Angeles' recent "Fair Chance" Ordinance, AB 1008 would ban employers from asking a job applicant about his or her criminal history.  Employers would also be prohibited from considering, distributing or disseminating a background check with certain information, including an arrest without a conviction, an infraction, or a misdemeanor older than three years or felony older than seven years.  An employer may inquire about or consider conviction history, but only after the applicant has received a conditional offer of employment.  Similar to current EEOC guidance, if an employer intends to take adverse employment action due to a prior conviction, the employer must make an "individualized assessment" to determine if the criminal history has a "direct and adverse relationship with the specific duties of the job."  Applicants who are denied employment must be given the reason(s) in writing and the applicant must be provided an opportunity to challenge that decision.  If the decision is challenged, the employer must consider the information submitted with the challenge and, only then, provide written notice of a "final decision" on the applicant's employment.

Expansion of CFRA Eligibility and Rights (SB 62)

SB 62 seeks to expand employee leave rights under the California Family Rights Act (CFRA).  The bill would change the definition of "child" to include independent, adult children, as well as children of a domestic partner.  The bill would also expand the categories of people for whom leave can be taken, including grandparents, grandchildren, siblings, domestic partners, or parents in-law.  Notably, the bill creates leave rights that are distinct from those available under the federal Family and Medical Leave Act (FMLA).  This means CFRA and FMLA leaves may not run concurrently, and employees could be entitled to a total of 24 weeks of leave instead of only 12 weeks.

Parental Leave Expansion (SB 63)—Parental Leave for Employers with 20-49 Employees

Currently, under both CFRA and FMLA, employers with 50 or more employees in a 75-mile radius are obligated to offer up to 12 weeks of parental leave for qualified employees to bond with a new child's birth, adoption or foster care placement.  SB 63, the "New Parental Leave Act," seeks to extend such parental bonding rights to employees of small companies and will apply to employers with only 20 to 49 employees in a 75-mile radius.

Voluntary Veterans' Preference Employment Policy Act (AB 353 and AB 1477)

The Voluntary Veterans' Preference Employment Policy Act, AB 353 and AB 1477, would allow employers to give preference for hiring or retaining veterans over other qualified applicants or employees.  Any such employment decisions would be deemed to not violate local or state equal opportunity laws or regulations, including the anti-discrimination provisions of the California Fair Employment and Housing Act (FEHA).  While FEHA currently allows employers to give preference to veterans, the preference is only allowed for Vietnam War-era veterans and with respect to decisions regarding the sex of an employee or applicant.  This bill would expand an employer's voluntary preference to all veterans and all categories of applicants and employees.

PAGA Reformation Attempts (AB 281, AB 1429, and AB 1430)

Since its inception, California's Private Attorneys General Act (Labor Code §§ 2699, et seq.) (PAGA) has been the bane of many California employers who have been sued by an employee for Labor Code violations.  PAGA allows aggrieved employees to seek civil penalties for certain Labor Code violations as a representative of the California Labor & Workforce Development Agency and other aggrieved employees.  PAGA has been met with disfavor by both employers and legislators alike and, in response, three bills have been proposed in an effort to reform PAGA: AB 281, AB 1429, and AB 1430.

One such bill, AB 281, seeks to extend an employer's 33-day cure to 65-days, as well as expand the scope of violations that are curable to all violations except health and safety violations.  The bill would also limit recovery of civil penalties based only upon violations actually suffered by that employee, a reiteration of a standing requirement many California courts are imposing.

Currently under PAGA, a civil suit may be filed for violation of any Labor Code provision which does not specifically provide for a penalty.  AB 1429 would limit civil actions under PAGA only to violations of Labor Code §§ 226 (wage statements), 226.7 (meal/rest periods), 510 (overtime) and 512 (meal periods).

Finally, before filing a civil suit, an aggrieved employee must provide notice to the LWDA of the alleged violations.  Under AB 1430, the LWDA would have an affirmative duty to investigate the allegations and then issue a citation or determine if there is a reasonable basis for the civil action within 120 days.  Aggrieved employees can file a civil action only if they receive a determination from the LWDA that there is a reasonable basis for a civil action or the agency fails to provide timely notification of its determination.

Partial Defense For Reliance On DLSE Guidance (SB 524)

SB 524 attempts to provide peace of mind to employers who seek and rely upon enforcement guidance from the Division of Labor Standards Enforcement (DLSE), at least partially.  The bill would provide a partial affirmative defense to employers who rely in good faith upon the DLSE's opinion letters or enforcement policies.  An employer would have to show that, at the time of the violation, it was acting in good faith and: (1) sought an opinion letter or enforcement policy from the DLSE; (2) relied upon a published DLSE opinion letter or enforcement policy; and (3) provided true and correct information to the DLSE in seeking the opinion letter or enforcement policy.  If the affirmative defense is successfully established, the employer will not be liable for costs or "subject to punishment," except for restitution of unpaid wages.  Any employer asserting the defense would be required to post a bond in the amount of the reasonable estimate of alleged unpaid wages resulting from the reliance on the DLSE's guidance.

Applicant Salary Information (AB 168)

AB 168 would affect the application process in two major ways.  First, it would prohibit employers from inquiring about an applicant's salary history, including compensation and benefits.  As currently drafted the law would prevent employers from contacting past employers as well as asking applicants about this information directly.  Second, AB 168 would require employers to provide the pay scale for the position upon reasonable request by the applicant.

Holiday Season Alternative Workweeks for Individual Retail Workers (AB 1173)

California permits non-exempt employees to work "alternative workweek" schedules which means they can work up to four 10-hour shifts in a workweek without being entitled to overtime pay.  However, implementing an alternative workweek schedule can often be difficult as it requires, inter alia, approval of 2/3 of the employees in the affected work unit.  AB 1173 would establish an overtime exemption for an individual retail employee's flexible work schedule during the holiday season.  Under the bill, an individual non-exempt employee in the retail industry may request, and the employer may approve, a work schedule providing for workdays up to 10 hours a day within a 40 hour workweek, with overtime only being required after working 10 hours in a day or 40 hours in a week.  The bill defines "holiday season" as the months of November to January.  Furthermore, while the bill allows employers to inform employees that they are willing to consider requests for such flexible schedules, it prohibits inducing a request through any benefit or threat.


As evidenced by these proposed laws, California employers are required to constantly navigate the ever-changing legal landscape in this state.  Accordingly, employers are encouraged to stay abreast of legislative updates and to consult experienced legal counsel with questions and concerns regarding the effect of and compliance with any new or existing laws.  Sheppard Mullin will closely track proposed employment laws as they work their way through the legislative process, and will further report any developments.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Events from this Firm
24 Oct 2017, Seminar, Los Angeles, United States

Presented by The American Bar Association White Collar Crime Committee.

24 Oct 2017, Conference, Los Angeles, United States

Corporate transactions are not just in the domain of M&A corporate attorneys. This program will cover the important role of employment and benefits counsel in shaping mergers and acquisitions. The presenters will provide practical guidance on conducting due diligence of labor, employment, employee benefits and executive compensation arrangements of target companies.

25 Oct 2017, Business Breakfast, New York, United States

Please join us for a complimentary breakfast program and networking with private equity investment banking professionals to discuss private equity activity and prospective deal flow opportunities in the technology industry.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.