United States: California Legislative And Agency Update

Local Minimum Wage Hikes



The below California cities increased their hourly minimum wage to the following rates (which exceed the state minimums) as of July 1, 2017:

  • Emeryville: $14.00 per hour for employers with 55 or fewer employees, $15.20 per hour for businesses with more employees.
  • Los Angeles (city and county): $10.50 per hour for employers with 25 or fewer employees, $12.00 per hour for businesses with more employees.
  • Milpitas: $11.00 per hour.
  • Sacramento: $10.50 per hour for employers with 100 or fewer employees (larger employees faced this rate hike in January).
  • San Francisco: $14.00 per hour.
  • San Jose: $12.00 per hour.
  • San Leandro: $12.00 per hour.

Transgender Protections of FEHA Expanded

Although transgender employees are already protected by the Fair Employment and Housing Act, new regulations effective July 1 clarify the scope of the protection, including working conditions and recording of employee gender and name. The regulations recognize protection for employees in the process of transitioning between genders and the need for "safe and adequate" locker rooms and dressing rooms (in addition to restrooms), and they require "gender neutral" signage on single-occupancy restrooms. Further, employers may be liable for violating FEHA if they fail to use an employee's preferred gender, name and/or pronoun. Employers should ensure that managers and supervisors are aware of these requirements to avoid inadvertent violations.

New Prohibitions on Use of Criminal Background Information

Also as of July 1, new state regulations took effect that further limit how employers can consider criminal history when making employment decisions and imposing certain notice requirements related to such decisions. Notably, employers may no longer ask about any non-felony convictions for possession of marijuana that are more than two years old, representing an expansion upon prior limitations. The regulations also prohibit considering criminal history if it will result in an adverse impact on protected individuals; the individual will bear the burden of proving that the employer's policy had an adverse impact, and an employer, as a defense, may show the practice is job-related and consistent with business necessity. When relying on criminal history information obtained by anyone other than the candidate or employee, employers taking adverse action must provide pre-action notice to the individual to allow the individual to show the information is inaccurate. As state and federal limitations on the use of criminal background information tighten, employers should re-visit their candidate vetting processes and determine how much criminal information they really need.

New Notice Requirement for Right to Domestic Violence Leave

As addressed in our Winter 2017 Update, effective July 1, Labor Code Section 230.1, which addresses time off for employees who are victims of domestic violence, sexual assault or stalking, now includes a requirement that employers inform employees of their rights under that law—upon hire and request. Employers who provide employee handbooks upon hire containing provisions about the right to take such time off are already complying with this new requirement. Employers who are not providing such written notification may use the California Division of Labor Standards Enforcement's form or should add such a policy to their existing handbook or workplace postings as soon as possible.

DFEH Publishes "Workplace Harassment Guide for California Employers"

In May, the California Department of Fair Employment and Housing published a nine-page guide for employers to help clarify employer obligations around preventing and correcting wrongful behavior. The guide contains detailed advice on training, responding to employee reports and conducting investigations, among other helpful information. The DFEH also provided a new poster and employee brochure on sexual harassment, so employers should be sure to update these items if used as part of their workplace postings.

San Francisco Expands Protections for Nursing Mothers and Female Job Applicants

Last month, San Francisco Mayor Ed Lee signed into law the Lactation in the Workplace Ordinance, which will apply to all employees within the city of San Francisco as of January 1, 2018. The ordinance goes beyond the lactation accommodation requirements of existing federal and California law by defining more precisely what a lactation room must contain, mandating that employers have a written lactation accommodation policy and request process, and imposing new recordkeeping obligations.

On July 20, 2017, Mayor Lee also signed the Parity in Pay Ordinance, which will prohibit employers from considering or inquiring about the current or past salary of job applicants, beginning July 1, 2018. The ordinance aims to close the current pay gap between women and men. Applicants and employers will still be free to discuss salary expectations, and an applicant may voluntarily disclose a prior salary for negotiation purposes. Penalties for violating the ordinance will run from $100-$500 per person per violation.

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