United States: A New Wave Of California Employment Legislation For 2018

Businesses with employees in California, get ready. In addition to the salary history ban recently signed into law in California, several other new employment laws will be taking effect in the Golden State on January 1, 2018. The new obligations concern criminal background inquiries, employee leaves of absence, immigration compliance, sexual harassment training, general contractor liability, and administrative complaints and investigations.

Governor Brown Officially Bans the Box

On October 14, 2017, Governor Jerry Brown signed Assembly Bill No. 1008 to officially "ban the box" in California, becoming the latest state to restrict criminal history inquiries by private employers during the hiring process. California joins Connecticut, Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, New York City, Oregon, Philadelphia, Rhode Island, Vermont and San Francisco in restricting discussions about an applicant's criminal past.

The new law takes effect on January 1, 2018, and will restrict the ability of employers to ask about an applicant's conviction history until the applicant has received a conditional offer of employment. Employers are also restricted in how they may make hiring decisions if an applicant's conviction history is lawfully disclosed.

Hiring Restrictions

The new law applies throughout California to all employers, public or private, with five or more employees, with only limited exceptions. Because roughly 7 million Californians (nearly one in three adults) have an arrest or conviction record, the legislation applies to a significant segment of the workforce. Employment applications, hiring decisions and background checks are all impacted:

  • Employment Applications. Employers may not include on any application for employment any question that seeks the disclosure of an applicant's conviction history.
  • Hiring Decisions. Employers may not inquire or consider the conviction history of an applicant unless and until that applicant has received a conditional offer of employment.
  • Background Check and Arrest Limitations. While conducting a lawful conviction history background check, employers may not consider or distribute information about (1) an arrest not followed by a conviction (with limited exceptions for certain positions), (2) referral to or participation in a pre- or post-trial diversion program, or (3) convictions that have been sealed, dismissed, expunged or eradicated under the law.

Individualized Assessment and Notice Requirements

The new law requires that employers conduct an individualized assessment of each candidate before denying employment solely or in part because of the applicant's conviction history. The assessment must include whether the applicant's conviction history has a direct and adverse relationship with the job requirements. If an employer makes a preliminary decision to deny employment based on the assessment, it must then provide the applicant written notification of the decision and allow the applicant to respond before the employer may make a final decision. If an employer preliminarily decides not to hire the candidate because of a conviction, the employee must be provided specific notices, addressing potential challenges and the right to file an administrative complaint with the California Department of Fair Employment and Housing.

The new law does not supersede other state and local laws relating to background checks and criminal history inquiries and employers should be mindful of their duty to separately comply with each applicable rule and regulation.

Job-Protected Parental Leave Expanded for Small Businesses

Governor Brown also signed Senate Bill No. 63, which imposes new employee leave requirements on small businesses, significantly expanding portions of the California Family Rights Act. Beginning January 1, 2018, employers with as few as 20 employees within a 75-mile radius must provide 12 weeks of job-protected unpaid parental leave to eligible employees to bond with a new child. To be eligible for this leave, employees must have worked for the employer at least 1,250 hours during the last 12 months, and leave must be taken within one year of the child's birth, adoption or foster care placement. If both parents work for a single employer and are equally eligible for leave, the employer may limit the amount of leave taken to 12 weeks between both employees.

Adverse actions immediately before, during or after job-protected leaves must be carefully considered due the liability risk such actions create. The new law requires employers continue to pay health insurance premiums during leave and prohibits firing, suspension or discrimination for taking such leave, and addresses reinstatement upon return from leave.

Joint Liability for Wages for General Contractors

Under Assembly Bill No. 1701, contracts entered into, on or after January 1, 2018, will require direct contractors to assume and be liable for a subcontractor's wage obligations to its workers for the labor provided on construction projects. Only the labor commissioner may enforce this law, with limited exceptions. To provide assurances to direct contractors, the new law allows direct contractors to request and obtain the payroll information for employees of subcontractors so that they can audit the subcontractor's payroll records as necessary.

Expanded Sexual Harassment Training Requirements in California

California employers with 50 or more employees are familiar with their mandatory biennial sexual harassment training requirements for their supervisory employees. Effective January 1, 2018, Senate Bill No. 396 requires that the training program now include topics of gender identity, gender expression and sexual orientation. The law requires that classroom or other effective interactive training be conducted by qualified trainers with expertise in these areas and that the program includes practical examples aimed at preventing harassment, discrimination and retaliation on any of these grounds. Covered employers must also post required notices of transgender rights.

Immigrant Worker Protection Act

In a bill that pits state law against federal immigration objectives, Governor Brown signed Assembly Bill No. 450, entitled the Immigrant Worker Protection Act. Effective January 1, 2018, the new law applies to federal immigration inspections and information requests, as well as E-Verify compliance and will restrict the ability of employers to voluntarily comply with the federal government. The new law prohibits employers from voluntarily providing federal agents access to employee information or non-public areas without a subpoena, court order or judicial warrant.

Warrant and Subpoena Required

The new law prohibits employers from allowing federal immigration agents to access non-public areas of their worksites without a judicial warrant. It also prohibits employers from providing immigration agents access to employee records without a subpoena or court order, unless otherwise required to do so by applicable law.

The statute requires that employers notify current employees of a federal immigration agency's inspection of I-9 forms or other employment records within 72 hours of receiving notice of the inspection. The notice must include the name of the agency conducting the inspection, the date the employer received notice of the inspection, the nature of the inspection and a copy of the notice of inspection provided.

Employers are also restricted from reverifying the employment eligibility of current employees at a time or in a manner not allowed by law.

Penalties and Compliance

Failure to comply with the law will expose companies to penalties up to $10,000 per violation. Compliance may frustrate efforts of federal immigration agencies and therefore employers are advised to assess their current employment, staffing and hiring practices to avoid potential state and federal civil and criminal penalties.

Labor Commissioner's Authority Expanded for Retaliation Claims

California employment law prohibits employers from retaliating against employees for engaging in protected activities. Governor Brown's signing of Senate Bill No. 306 enhances the ability of the labor commissioner and Department of Labor Standards Enforcement (DLSE) to enforce compliance with anti-retaliation laws. Notably, the new laws expand the DLSE's authority to investigate and penalize employers for what it perceives to be violations of statutory anti-retaliation restrictions:

  • The DLSE may investigate an employer without any retaliation complaint if it "suspects" that retaliation is occurring in the course of its adjudication or inspection of a wage claim or related matter.
  • The DLSE may petition the California Superior Court for injunctive relief when it determines there is "reasonable cause" to believe that an employer has engaged or is engaging in unlawful retaliation.
  • The DLSE is relieved of the burden to affirmatively initiate civil actions against an employer and is now authorized to issue a citation for the employer to take corrective actions, which the employer may seek review through an administrative hearing before the labor commissioner within 30 days of the citation. The labor commissioner's decision is reviewable only through a writ of mandate to the Superior Court.
  • The DLSE can impose penalties up to $20,000 for "willful" failures to comply with a court order, take corrective action or post a required notice to employees.

The new law further provides that employees may now initiate a lawsuit for retaliation and seek injunctive relief in Superior Court.

What This Means for Employers

Because these new laws affect a wide range of employment policies and practices, employers are advised to develop compliance strategies before the end of the year.

Review Forms and Practices

Audit your hiring practices. Job applications, offer letters and rejection decisions take on increasing importance in light of the new criminal history prohibitions. Proceed cautiously in asking about criminal history and in taking action due to an applicant's criminal past. Make offers conditional. Provide necessary and timely notifications. Above all, start the process early.

Know your employee-leave obligations. Employers of all sizes should consider using standardized forms to address leaves of absence. Smaller employers, traditionally exempted from leave laws, should understand their new obligations. Anticipate how to respond to frequently asked questions and what to expect when an employee requests time off.

Update your policies and employee handbooks. Ensure that your organization's retaliation, discrimination and harassment policies and complaint procedures are up to date.

Evaluate key contracts. While all employers should regularly undertake a legal review of standardized agreements, construction contractors should consider a review of their agreements with general or subcontractors before year's end in light of the new joint liability laws taking effect soon. Execute agreements this year, if prudent. Consider defense, indemnity and other clauses for better potential protection.

Provide Appropriate Training and Update Postings

Knowledge should be shared. Decrease your legal risks by making sure those who should know these new laws learn about them. Train your hiring managers and those involved in the interview process as to what they can and cannot say to job applicants. Make sure your managers know how to respond to a request for a leave of absence and how their actions may be construed as retaliatory. Use certified trainers to conduct anti-harassment trainings and be sure the trainings are fully compliant with all rules and regulations. Make sure your postings are up-to-date and distributed appropriately.

For Further Information

If you have any questions about this Alert, please contact any of the attorneys in our Employment, Labor, Benefits and Immigration Practice Group or the attorney in the firm with whom you are regularly in contact.

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

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.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions