2018 CALIFORNIA LEGAL UPDATE February 8, 2018 Tag 868 Legal Update Courtesy of WorkWise Law This legal update will provide you with a brief summary of the significant changes that have taken effect January 1, 2018. Employers should review their policies with a trusted legal advisor to ensure compliance. SALARY QUESTIONS ARE BANNED (AB 168) AB 168 created a new Labor Code Section 432.3, which applies to employers of every size, including public employees. Under Labor Code Section 432.3, employers may not rely on an applicant's compensation history as a factor in determining whether to make a job offer or what compensation to offer an applicant. "Compensation" under this section includes salary and benefits. Employers are prohibited from asking applicants about their compensation history, nor can they seek out that information from a third party, such as a hiring entity or recruiter. If an applicant discloses their salary history voluntarily and without prompting, the employer may consider that information in formulating the compensation offer, but cannot use that information as the sole factor. The new law also requires employers to provide the "pay scale" (akin to a salary range) for a position upon an applicant's reasonable request. What Should Employers Do? Employers should train their personnel who are responsible for interviewing applicants that they cannot seek compensation history. Further, employers should remove questions about salary history on applications. IMMIGRATION WORKFORCE PROTECTION ACTIONS (AB 450) The Immigrant Worker Protection Act protects workers from immigration enforcement while on the job. An employer is prohibited from voluntarily providing a federal immigration enforcement agent access to a business without a properly executed warrant. The employer is further restricted from turning over the employee's records without a subpoena. If a subpoena to review 1-9 forms or other records is received from an immigration agency, the employer must give the employee, and their authorized representatives notice within 72 hours and provide a copy of the inspection notice and any results. What Should Employers Do? Penalties for violating this law can range from $2,000-$5,000 for a first offense and $5,000-$10,000 for each subsequent violation. Employers should train management (human resources, supervisors, personnel with access to the facility or records) how to handle the law's new regulation with regard to identifying immigrant workers to the inspecting agency and how to properly notify the affected employees. BAN THE BOX (AB 1008) This law, was enacted to give certain applicants a chance to withhold information about their previous criminal convictions until further along in the interview process. The new law prohibits all employers with five or more employees from asking an applicant to disclose their criminal conviction information until after a conditional offer of employment is extended. Covered employers may not include questions (which were often on applications in the form of a box, I.e. check "Yes" or "No" to whether you have been convicted of a crime), on their applications, or ask for this information in interviews. Once a conditional offer has been made, employers may lawfully obtain criminal history information in a background check. However, the employer may not consider, distribute or disseminate certain information received in a background check that relates to (a) certain arrests not followed by a conviction, (b) referral to or participation in a pre-trial or post-trial diversion program, and (c) convictions that have been sealed, dismissed, expunged or statutorily eradicated. But wait, there's more! When an employer intends to deny an applicant a job based solely, or in part, because of their conviction history, AB 1008 requires employers to make an individualized assessment by looking at the specific job duties of the position and the nature of the conviction. For example, an employer could lawfully deny a therapist with access to children a job if they had a conviction history of abuse to minors. An employer may not have a right to deny a warehouse worker, who had an arrest for abuse of a minor 15 years ago, and job duties that would not place them near minors, the job. When employers go through the assessment of the job's duties as related to the conviction history, they must provide the applicant an opportunity to respond to the employer's notice not to offer the position. If the employer, having received the response, intends to stick with their initial decision to deny the offer, the applicant must be given a second notice of the decision. What Should Employers Do? Employers should review their hiring materials and procedures to ensure compliance with this law. Applications and background check procedures should be revised, so as not to impermissibly ask for or obtain conviction history prior to a conditional job offer. Those employees involved in interviewing should be trained on what questions are unlawful to ask during the hiring process. MINIMUM WAGE INCREASES AND MINIMUM SALARY BASIS FOR EXEMPT STATUS REQUIREMENTS California's minimum wage increased, as of January 1, 2018. CA requires employers with 25 or fewer employees to pay $10.50 per hour and $11.00 per hour for employers with 26 or more employees. In certain cities, the minimum wage has been raised higher than the state's requirements. Employers should check the local ordinances that affect the places where employees conduct business on their behalf. To meet the salary basis for exempt status, employees must earn at least $43,680/yr. for employers with 25 or fewer employees and $45,760/yr. for employers with 26 or more. Licensed physician and surgeon exemption have been raised to $79.39/hour. What Should Employers Do? Review all salary rates to ensure compliance, and determine if the local ordinances apply to your employees. GENDER NEUTRAL TERMS FOR LEAVES (AB 1556) Current laws prohibit employers from preventing employees from taking a leave for pregnancy, childbirth, or a related medical condition. Many employer policies have used gender-specific terms to reflect the statutory protections. AB 1556 requires employers to revise these provisions to delete gender-specific references and replace them with gender-neutral terms, such as "person" or "employee." What Should Employers Do? Review all employment policies and leave forms/ documents to reflect gender-neutral terms related to leaves under the California Family Rights Act, and Pregnancy Disability Leave Act. PARENTAL LEAVE ACT (SB 63) The new parental leave act guarantees 12 weeks of job protection for parental leave to bond with a new child within one year of the child's birth, adoption, or foster care placement. This act expands the leave protection to employers with 20 to 49 employers, whereas previously, the California Family Rights Act only guaranteed 12 weeks of job-protected leave to employers with 50 or more employees. The New Parent Leave Act requires employers to continue the employee's health insurance benefits while on leave. Employees who qualify for this leave must be reinstated to their same position, or a comparable position in terms of wages, benefits, job duties. This law applies to private, state and municipal employers. There is a cap of 12 weeks if both parents work for the same employer. What Should Employers Do? Employers with 20-49 employees need to update their employment handbooks/leave policies to reflect these new rights. Personnel who handle leave requests and management should be trained to recognize when employees are eligible to take this leave, and the employers' legal responsibilities. HARASSMENT TRAINING AMENDMENTS (SB 396) Existing law, AB 1825, requires employers with 50 or more employees to provide two hours of sexual harassment training to all supervisors every other year, and to new managers within 6 months of their hire/becoming supervisors. This new law expands the topics that must be covered during this training to include: practical examples to address harassment based on gender identity, gender expression, and sexual orientation. What Should Employers Do? Provide the required training to management, at least every other year and ensure that the additional topics required are part of the training. Further, employers must post an updated poster regarding sexual harassment once updated by the Department of Fair Employment and Housing. LABOR COMMISSIONER WORKPLACE RETALIATION INVESTIGATIONS (SB 306) SB 306 provides that an employee or the Labor Commissioner can obtain a temporary restraining order to prohibit employers from terminating employees who allege retaliation before the Labor Commissioner completes their investigation. They may also take action without a complaint made by an employee if suspicions of retaliation arise in the course of the investigation of wage claims or other matters. NOTE REGARDING THE ABOVE SUMMARIES: These short summaries are meant to give a broad overview of significant new laws that affect employers in California, and does not provide all specifics, nor do they take into account particular factual considerations. For more information about any of the new state laws and regulations and how to comply with them, please contact the attorneys at WorkWise Law, PC. This summary is not intended, nor should it be used, as a substitute for specific legal advice, and the general information provided herein does not create an attorney-client relationship.