Working in HR can sometimes be dizzying, especially when dealing with compliance issues. 2018 is sure to be no exception if you are an employer in California. At VertiSource HR®, we try to educate our client partners on everything HR-related to foster compliance. With hands-on service and a robust HRIS system, VertiSource HR® has helped many companies grow with confidence.
Below we have listed all the new bills that were signed into law by Governor Jerry Brown.
Unless
otherwise noted, each bill was effective on January 1, 2018.
(Source: Holland & Knight LLP)
WAGE AND HOUR
SB 3 –
California's Minimum Wage Increase in 2018
Beginning Jan.
1, 2018, the minimum wage will increase from $10.50 per hour to $11 per hour
for California employees of employers with 26 employees or more. Thus, for
employers with 26 employees or more, the minimum annual salary for exempt
employees under California law will increase from $43,680 to $45,760.
For California
employees of employers with 25 employees or less, the minimum wage will
increase from $10 per hour to $10.50 per hour. Thus, for employers with 25
employees or less, the minimum annual salary for exempt employees under
California law will increase from $41,600 to $43,680.
SB 3 sets forth
a schedule for minimum wage increases through 2023, which are subject to
temporary suspension by the governor, based on certain determinations.
AB 1701 –
Direct Contractors Are Liable for Subcontractors' Debt Owed to Wage Claimants
Under Labor
Code Section 218.7, direct contractors are liable for the debts of
subcontractors at any tier owed to wage claimants. Liability extends to
"any unpaid wage, fringe or other benefit payment or contribution,
including interest owed but shall not extend to penalties or liquidated
damages." The Labor Commissioner may enforce liability for unpaid wages
and interest on those wages. Third parties owed fringe benefits or other
benefits on the claimant's behalf may bring a private action to enforce this
liability and the court shall award a prevailing plaintiff in such actions
reasonable attorney's fees and costs, including expert witness fees. Joint
labor-management cooperation committees established pursuant to relevant
federal law may also file suit against the direct contractor. No other parties
may maintain actions under this section.
AB 1701 is not
retroactive and applies only to contracts entered into after Jan. 1, 2018.
Furthermore, there is a one-year statute of limitations to bring an action
under this new section, for which the statute of limitations begins running
upon the earliest of the 1) recording of the notice of completion of the
direct contract; 2) recording of a notice of cessation of the work specified in
the direct contract; or 3) actual completion of the work specified in the
direct contract. The statute does not apply to work performed by employees of
the state, a special district, a city, a county, a city and county, or any
political subdivision of the state.
LEAVE AND
BENEFITS
SB 63 – The New
Parent Leave Act for Small Employers
The California
Family Rights Act (CFRA) currently makes it an unlawful employment practice for
employers of 50 or more employees to deny an eligible employee up to 12 work
weeks of protected bonding leave for a child born to, adopted by or placed for
foster care with the employee. California employees are eligible for CFRA leave
if they 1) have completed at least 12 months of employment with the company; 2)
have worked for the company for at least 1,250 hours in the past 12 months; and
3) are employed at a worksite that has 50 or more employees within 75 miles of
that worksite.
SB 63 extends
protected bonding leave (12 work weeks) to eligible employees of smaller
California employers with 20 to 49 employees. Employees are eligible for
bonding leave under SB 63 if they 1) have completed at least 12 months of
employment with the company; 2) have worked for the company for at least 1,250
hours in the past 12 months; and 3) are employed at a worksite that has 20 or
more employees within 75 miles of that worksite.
Employees may
request parental leave to bond with a new child within one year of the child's
birth, adoption or foster care placement.
Additionally,
SB 63 prohibits employers from refusing to maintain and pay for group health
plan coverage for an employee on parental leave. The bill also includes a
strong anti-retaliation provision, which makes it illegal for an employer to
refuse to hire, discharge, fine, suspend, expel or discriminate against an
employee for taking parental leave.
HIRING
PRACTICES
AB 1008 –
"Ban the Box" – Restrictions on Requesting and Considering Criminal
History When Making Employment Decisions
Current
California law bans employers from making a decision regarding the conditions
of employment based on arrests or detentions that did not result in a
conviction and participation in or referral to a pre- or post-trial
diversionary program. AB 1008 repeals these provisions in favor of stronger
anti-discrimination measures. Upon taking effect, it is an unlawful employment
practice for employers with five or more employees to: 1) include on an
employment application any question seeking the disclosure of an applicant's
conviction history; 2) inquire or consider conviction history until a
conditional offer has been made to the applicant; and 3) "consider,
distribute, or disseminate information related to specified prior arrests,
diversions, and convictions."
AB 1008 also
lengthens the process for denial of employment based "solely or in
part" on the applicant's conviction history. Employers who intend to deny
an applicant on these grounds must first make an "individualized
assessment" of whether the applicant's conviction history has a
"direct and adverse" relationship to the duties of the job. If the
employer determines that there is a direct and adverse relationship to the
duties of the job, the employer must notify the applicant in writing of that
decision. The applicant then has five business days to respond to the notice
before the employer makes a final decision, and if the applicant disputes the
accuracy of the conviction history, he or she has an additional five business
days to obtain supporting evidence and respond to the notice of individualized
assessment.
Various job
positions are exempted from the new "ban the box" requirements. These
include: 1) positions with a state or local agency where the agency is required
to perform a conviction history background check; 2) positions with criminal
justice agencies; 3) positions as a farm laborer contractor; and 4) positions
where the employer is required by local, state or federal law to conduct
criminal background checks or restrict employment based on criminal history.
AB 168 –
Prospective Employers Cannot Rely on or Seek an Applicant's Salary History in
Determining Whether to Offer Employment
AB 168 creates
a new section of the Labor Code — Section 432.3 — that prevents prospective
employers from seeking, either personally or through an agent, an applicant for
employment's salary history information. Employers additionally cannot rely on
salary history information to determine whether to offer employment or to
determine what salary to offer.
Should an
applicant voluntarily "and without prompting" reveal salary history
to a prospective employer, the employer may consider salary history in
determining what salary to offer the applicant. The prospective employer still
may not use salary history in deciding whether to offer employment. Salary
history "disclosable to the public pursuant to federal or state law"
— by way, for example, of a California Public Records Act request or a federal
Freedom of Information Act request — can be used by an employer to determine
whether to offer employment and to determine what salary to offer. Using such
means to obtain salary information, however, is a cumbersome process and not
likely to be helpful in an immediate hiring situation.
Finally,
potential employers must provide an applicant with the pay scale for the
position sought upon reasonable request. Section 432.3 applies to all
employers, including state and local governments.
DISCRIMINATION
AND RETALIATION
SB 306 – The
Labor Commissioner May Investigate an Employer Suspected of Retaliation or
Discrimination Without a Complaint
Under current
California law, the Labor Commissioner is empowered to investigate and report
complaints of retaliation or discrimination that arise from the Commissioner's
other investigations into a specific employer. The former law, which is revised
by SB 306, granted the Labor Commissioner this power to investigate retaliation
or discrimination only if an employee or other person made a complaint. Going
forward, the Labor Commissioner will not need a complaint to investigate
retaliation or discrimination relating to an existing investigation.
Should the
Labor Commissioner or the Division of Labor Standards Enforcement (DLSE)
suspect that an employer has retaliated or discriminated against employees
because of an ongoing DLSE investigation into the employer, the Commissioner
may initiate an investigation without a complaint. Upon finding
"reasonable cause" to believe that a violation has occurred, the
Commissioner may petition the respective superior court for injunctive relief.
SB 306 also
authorizes the Commissioner to issue citations to individuals determined to be
responsible for violations and establishes processes for hearings and writs of
mandate. Finally, the bill grants employees the ability to seek injunctive
relief in a private action. Any injunctive relief granted in a private action
is not stayed pending appeal.
Given its track
record of initiating vigorous enforcement actions across a wide variety of
industry sectors, the Labor Commissioner's office is expected to use this new
law to expand its oversight of the California workplace.
AB 46 –
Clarification That Public Entities Are Included as "Employers" Under
California's Equal Pay Law
Current Labor
Code Section 1197.5 prohibits employers from paying any of its employees a
different wage than the wage paid to members of the opposite sex for
substantially similar work, subject to certain exceptions. The current law did
not specify whether "employer" included both private and public
employers. As amended by AB 46, both entities are considered
"employers" for purposes of Section 1197.5. Under AB 46, public
employers are not subject to the "misdemeanor violation provision" of
Labor Code Section 1199.5. AB 46 took effect on Oct. 14, 2017.
AB 1710 –
Expanding Discrimination Protection for Service Members
Current
California law prohibits discrimination against service members because of
their membership or service with respect to employment, position or status. AB
1710 expands this protection, making it illegal to discriminate against service
members with respect to the terms, conditions or privileges of employment in
addition to current protections.
IMMIGRATION
AB 450 –
Restrictions on Employer Cooperation with Federal Immigration Enforcement
Authorities and I-9 Eligibility Checks
AB 450 creates
four new provisions, two in the Government Code and two in the Labor Code. The
new law bars employers from giving consent to immigration enforcement officers
without a warrant to enter any non-public areas of the workplace, except as
required by federal law. Only the Labor Commissioner or the California Attorney
General may enforce this provision.
Further,
employers may not voluntarily consent to immigration enforcement officials'
warrantless or non-subpoenaed requests to access, view or obtain the employer's
employee records, except as authorized by federal law. This prohibition does
not apply to I-9 Employment Eligibility Verification forms or other forms for
which a Notice of Inspection has been provided. Within 72 hours of receiving a
Notice of Inspection, an employer must provide each current employee notice of
the inspection.
Employers must
also provide notices to each "current affected employee" — defined as
those who are "identified by the immigration agency inspection results to
be an employee who may lack work authorization, or an employee whose work
authorization documents have been identified by the immigration agency
inspection to have deficiencies." This notice must be provided to the
affected employee by hand within 72 hours of the employer's receipt of a
written immigration agency notice containing the results of any I-9 or
employment record inspection. Additionally, employers may not re-verify the
employment eligibility of a current employee at a time or in a manner not
required by federal law.
These new
provisions carry with them fines and civil penalties ranging from $2,000 to
$5,000 for the first violation and $5,000 to $10,000 for subsequent violations.
HARASSMENT
PREVENTION TRAINING
SB 396 –
Additional Supervisor Training for Gender-Based Harassment
California law
currently requires employers with 50 or more employees to provide at least two
hours of training regarding sexual harassment to supervisory employees once
every two years, and the training must also be provided within six months of an
employee taking a supervisory position.
Under SB 396,
employers with 50 or more employees must, as part of the required training and
education for supervisors, also include training for harassment based on gender
identity, gender expression and sexual orientation. Additionally, each employer
must place a poster developed by the Department of Fair Employment and Housing
(DFEH) on transgender rights in the workplace. Finally, SB 396 expands the
definition of "individuals with employment barriers" to include
transgendered and gender nonconforming individuals.
SB 295 – New
Sexual Harassment Training Requirements for Farm Labor Contractors
California law
currently provides that farm labor contractors must attest that employees have
received sexual harassment prevention and reporting training. SB 295 adds to
this requirement, mandating that the training for each agricultural employee be
in the language understood by that employee. Farm labor contractors must also,
as part of their application for a license renewal, provide the Labor
Commissioner with 1) a complete list of materials and resources utilized to
provide the training, and 2) the total number of agricultural employees
trained. These materials must be provided at least one month prior to
submitting the application for renewal. SB 925 also authorizes the Commissioner
to issue citations and assess civil penalties of $100 for each violation.
OTHER
PROTECTIONS
SB 179 – The
Gender Recognition Act
California law
presently allows for persons who have undergone clinically appropriate
treatment for gender transition to obtain a new birth certificate from the
State Registrar and to petition a court for a judgment recognizing the change
of gender. Starting on Sept. 1, 2018, persons seeking a court judgment to
recognize a change of gender or persons seeking a new birth certificate do not
need to have undergone any treatment. The bill authorizes a court to change a
person's gender upon petition to either female, male or nonbinary. On Jan. 1,
2019, applicants for either a new or renewed driver's license may choose from
the gender categories of female, male and nonbinary.
AB 260 –
Additional Businesses Must Comply with Human Trafficking Notice Requirements
Under existing
California law, certain businesses and other establishments must post specified
notices containing information regarding slavery and human trafficking. AB 260
expands the covered businesses that must post slavery and human trafficking
notices to "[h]otels, motels, and bed and breakfast inns, as defined in
subdivision (b) of Section 24045.12 of the Business and Professions Code, not
including personal residences."
SB 225 – New
Human Trafficking Notice Requirements
SB 225 is a
companion bill to AB 260, discussed above. This bill requires that human
trafficking notices posted in the workplace must specify a number that
employees can text for services and support. Further, the California Department
of Justice is tasked with creating a revised and updated model human
trafficking notice by Jan. 1, 2019. Covered businesses and establishments will
not be required to post the Department of Justice's model posting until on and
after Jan. 1, 2019.
AB 1687 –
Online Entertainment Employment Services Are Restricted from Posting
Subscribers' Ages
AB 1687 targets
a specific industry with the aim of curbing "employment or age
discrimination." Under the bill, which creates the new Civil Code Section 1798.83.5,
an online entertainment employment service that individuals pay to subscribe to
shall not publish or make public a subscriber's date of birth or age in an
online profile. Simply, the bill bans online entertainment job posting or
recruiting websites from circulating its paying members' age information.
Covered websites must also remove such information within five days of a
subscriber's request.
