United States: 5 New Laws: California Governor Approves Employee-Friendly Laws

The 2017 California Legislature adjourned on September 15, 2017, and resulted in more than 700 bills being sent to Governor Jerry Brown's desk for approval. Although the deadline for the Governor to sign new bills into law does not officially expire until October 15, the Governor has already given his stamp of approval to a handful of new employment laws that will take effect on January 1, 2018, including one from the California Chamber of Commerce's annual list of "Job Killers." Below is a summary of the major bills recently signed into law.

  1. Prohibition on Salary History Inquiries and a New Duty to Disclose "Pay Scales" (AB 168)

Effective January 1, 2018, employers are barred from seeking or inquiring into a job applicant's salary history, compensation and benefits. Further, employers must now disclose pay scales for a position upon request from an applicant.

As we noted in August while reporting on San Francisco's recently-enacted Parity in Pay Ordinance, a growing number of state and municipal governments have attempted to combat race and gender pay disparities by prohibiting inquiries into job applicants' prior salary or limiting the circumstances under which employers may use salary history information. Furthering this trend, AB 168 will add section 432.3 to the California Labor Code and bar employers from directly or indirectly seeking, or inquiring into, a job applicant's salary history information (including compensation and benefits). It will also make it unlawful for employers to use an applicant's salary history information to determine whether to extend a job offer or to decide what salary to offer an applicant. Supporters of the law believe that the measure will help erode the gender wage gap impacting several industries, including the tech industry.

AB 168 does not encompass obtaining or using salary history information disclosable to the public under federal or state law. Additionally, the law does not prohibit applicants from disclosing their salary history information "voluntarily and without prompting." In such circumstances, AB 168 permits a prospective employer to consider or rely upon the voluntarily-disclosed information when determining an applicant's compensation, subject to the Equal Pay Act's caveat that prior salary cannot, by itself, be used as a justification for any disparity in compensation between employees of difference races, sexes, or ethnicities.

Significantly, while AB 168 deals primarily with prohibitions against seeking out or using salary history information, it also requires companies to disclose the "pay scale" for a position to any applicant for employment, "upon reasonable request."

  1. New Parental Leave Mandates for Small Employers (SB 63)

On January 1, 2018, employers with 20+ employees must provide child bonding leave under the New Parent Leave Act.

Under the California Family Rights Act (the "CFRA"), companies with 50 or more employees must provide eligible employees with up to 12 weeks of unpaid, job protected leave during a 12-month period:

  • To care for a parent, a spouse, or a child with a serious health condition;
  • Because an employee's own serious health condition prevents the employee from performing the functions of his or her job; and/or
  • For the purpose of bonding with their child within one year of the child's birth or placement of the child with the employee through adoption or foster care, i.e., "child bonding leave."

To be eligible for leave under CFRA, an employee must have 12 months of service with a covered employer, at least 1,250 hours of service with the employer during the 12-month period preceding their leave, and be employed at a location where the employer has at least 50 employees within a 75 mile radius.

SB 63, otherwise known as the New Parent Leave Act, extends the obligation to provide child bonding leave to employers with 20 or more employees by adding Section 12945.6 to the California Government Code. Beginning on January 1, 2018, employers with 20 to 49 employees must provide child bonding leave to employees working at locations with at least 20 employees within a 75 mile radius. As with "child bonding" provided under the CFRA, an employee must have 12 months of service with a covered employer and at least 1,250 hours of service during the 12-month period prior to his/her leave in order to be eligible for leave. The law explicitly prohibits employers from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any right provided under the law.

Last year, Governor Brown vetoed a largely identical bill introduced as SB 654. In his veto message, the Governor encouraged the Legislature to explore options that encouraged employees to mediate before bringing a lawsuit. Responding to that suggestion, SB 63 requires the Department of Fair Employment and Housing to create a parental leave mediation program allowing an employer to demand mediation within 60 days of receiving a right-to-sue notice. Until January 1, 2020, an employer's demand for mediation under this program will prevent an employee from pursuing a civil action until the mediation is "complete" or until the employee affirmatively elects not to participate in a mediation. On January 1, 2020, SB 63's mediation provisions will expire.

SB 63 was one of several bills identified as a "Job Killer" by the California Chamber of Commerce this year.

  1. The Immigrant Worker Protection Act (AB 450)

On October 5, Governor Brown officially made California a so-called "sanctuary state" by signing legislation that limits coordination between local and state law enforcement and federal immigration officials. Echoing that move, AB 450—also known as the Immigrant Worker Protection Act—prohibits employers from allowing immigration enforcement agents to access non-public areas of a workplace without a judicial warrant. It also bars employers from voluntarily allowing an immigration enforcement agent to access, review, or obtain employee records without a subpoena or court order, except for:

  • I-9 Employment Eligibility Verification forms and other documents for which a Notice of Inspection has been provided to the employer; or
  • Instances where federal law requires employers to provide access to records.

Employers who violate those provisions will be subject to civil penalties in amounts between $2,000 and $5,000 for an initial violation and between $5,000 to $10,000 per violation for subsequent violations.

Except as otherwise required by federal law, AB 450 requires employers to provide current employees with notice of an immigration agency's records inspection by posting a notice of an inspection within 72 hours of the immigration agency providing the employer with written notice of its intent to conduct an inspection. The notice must contain the name of the agency conducting the inspection, the date the employer received notice of the inspection, the nature of the inspection (if known), and a copy of the official "Notice of Inspection" provided by the immigration agency.

Covered employers must also provide affected employees with a copy of an agency's notice of inspection of I-9 Employment Eligibility Verification forms "upon reasonable request." And unless otherwise required by federal law, AB 450 requires employers to provide affected employees and their collective bargaining representatives with a copy of any written notice from an immigration agency providing the results of an I-9 inspection and the obligations of the employer and the affected employee(s) arising from the agency's action within 72 hours of receiving notice from the agency.

Although AB 450 does not prohibit compliance with any federal E-Verify system or a memorandum of understanding governing the use of the federal E-Verify system, AB 450 explicitly forbids employers from reverifying the employment eligibility of a current employee at a time or in a manner not required by 8 U.S.C § 1324a(b). Doing so may result in a civil penalty of up to $10,000 per violation.

  1. New Sexual Harassment Training Rules for Farm Labor Contractors (SB 295)

Labor Code section 1684 currently imposes various conditions upon the issuance of a farm labor contractor license. One of those conditions is an applicant's written attestation that supervisorial and non-supervisorial employees have received required training about identifying, preventing, and reporting sexual harassment in the workplace.

SB 295 amends Section 1684 to require license applicants to provide sexual harassment training to each agricultural employee in "the language understood by that employee." SB 295 also requires license applicants to provide the Labor Commissioner with a complete list of all materials and resources used to provide sexual harassment prevention training to agricultural employees and the total number of agricultural employees trained in sexual harassment prevention during the calendar year preceding an application. The Labor Commissioner will aggregate the data provided by licensees and will publish information on its website about the total number of agricultural employees trained in the previous calendar year.

In furtherance of the sexual harassment training rules, SB 295 adds Section 1697.5 to the Labor Code to authorize the Labor Commissioner to levy civil penalties against any farm labor contractor licensee who fails to:

  • Provide sexual harassment training to an agricultural employee at the time of hire;
  • Provide sexual harassment training in a language understood by an agricultural employee;
  • Provide an agricultural employee with sexual harassment training satisfying Section 1684's minimum requirements;
  • Provide an agricultural employee with a record of his or her training or a copy of the Department of Fair Employment and Housing's "Sexual Harassment" pamphlet;
  • Keep a record of training for each agricultural employee who receives sexual harassment training.

Penalties may also be imposed for providing a false record of completion of sexual harassment training. The penalties may be assessed at a rate of $100 per violation.

  1. Expanded Labor Commissioner Powers to Enforce Anti-Retaliation Laws (SB 306)

The California Labor Code prohibits employers from discharging, or otherwise discriminating or retaliating against, employees or job applicants for engaging in various protected activities. Under existing law, an aggrieved applicant or employee may file a complaint with the Division of Labor Standard Enforcement (the "DLSE") to seek employment or reinstatement and/or the recovery wages and work benefits lost as a result of unlawful retaliation.

SB 306 enhances the DLSE's authority to investigate and enforce compliance with the Labor Code's various anti-retaliation laws in several ways. Most notably, SB 306 authorizes the DLSE to investigate an employer without receiving a complaint of retaliation, if the DLSE "suspects" that retaliation has occurred during the course of adjudicating a wage claim, a field inspection, or in instances of suspected immigration-related threats in violation of the Labor Code. Additionally, SB 306 authorizes the DLSE to petition a Superior Court for temporary or preliminary injunctive relief when the DLSE finds "reasonable cause" to believe that an employer has engaged, or is engaging in, unlawful retaliation.

SB 306 also provides an accelerated method for the DLSE to enforce violations. If the DLSE determines that an employer violated, or is violating, an anti-retaliation law within its jurisdiction, the law currently requires the DLSE to issue a "determination" directing the violating party to take remedial action, and the DLSE must bring a civil action to enforce the determination if the employer refuses to comply with it. SB 306 streamlines this process and relieves the DLSE of the burden to affirmatively initiate civil actions. As a result of SB 306's amendments, if the Labor Commissioner determines that an employer engaged (or is engaging) in unlawful retaliation, the Labor Commissioner will be authorized to issue a citation directing an employer to take various remedial actions. If the employer disagrees with the citation or the relief ordered, the employer will have the burden to seek review of the citation through an administrative hearing before the Labor Commissioner within 30 days of the citation. Any decision by the Labor Commissioner will be subject to review by a Superior Court through an administrative writ of mandate. This procedure parallels the process used for unpaid wage claims handled by the Labor Commissioner, and it is designed to relieve the DLSE of the obligation to pursue "lengthy" lawsuits.

Adding to the DLSE's enforcement arsenal, SB 306 subjects employers to penalties of $100 per day (up to a maximum of $20,000) for any "willful" refusal to comply with a court order to cease and desist a retaliation violation, to post a notice to employees, or to hire, promote, or otherwise restore a current or former employee to a position.

Finally, SB 306 authorizes any employee bringing a civil action for retaliation in violation of Labor Code section 1102.5 to petition a Superior Court for temporary or preliminary injunctive relief, which the Superior Court must issue when "reasonable cause exists to believe a violation has occurred."

More Employment Laws on the Horizon

While each of the above laws is significant, several other bills are still awaiting a decision by the Governor, including:

  • SB 396, which proposes to expand the sexual harassment posting and training requirements under the Fair Employment and Housing Act to encompass issues relating to gender identity, gender expression, and sexual orientation;
  • AB 569, which would add a new provision to the Labor Code to prohibit discrimination against employees (and their dependents or family members) for "reproductive health decisions."
  • AB 1008, which proposes a Statewide "Ban the Box" law to restrict employers' use of, and inquiry into, applicants' conviction histories;
  • AB 1209, which would require large California companies biennially collect and report data on gender wage differentials amongst their workforce and board members; and
  • AB 1701, which would make building contractors jointly and severally liable with their subcontractors for any failure to pay wages, fringe benefits, or other benefit payments or contributions on any building contract entered into on or after January 1, 2018.

Governor Brown has until this Sunday, October 15, to sign these bills into law. Stay tuned.

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.

Authors
Events from this Firm
29 Nov 2017, Webinar, Los Angeles, United States

This webinar will cover issues that California employers must face when managing a remote workforce of employees who “telecommute” for work. Due to the growing number of employees that work from home, California employers must know how to manage this new remote workforce in order to offer competitive career opportunities for a new generation of employees, while also being careful not to violate the complex California employment laws that govern these work arrangements.

30 Nov 2017, Conference, Brussels, Belgium

The European Competition and Regulatory Law Review (CoRe), the Computer and Communications Industry Association (CCIA) and the Vrije Universiteit Brussel (VUB) are delighted to invite you to our joint conference discussing some of today’s most frequently asked questions: Does competition law enforcement require an update for online markets?

4 Dec 2017, Conference, Virginia, United States

The Government Contract Management Symposium (GCMS) is held annually by the National Contract Management Association (NCMA) in the Washington, DC metro area. Formerly intended for those in federal sector, it has grown to provide training for professionals in both government and industry contracting.

 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
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.

Disclaimer

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.

Registration

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.

Cookies

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.

Links

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.

Mail-A-Friend

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.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

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.