These California Workplace Bills Are on the Governor’s Desk

Lisa Nagele-Piazza, J.D., SHRM-SCP By Lisa Nagele-Piazza, J.D., SHRM-SCP September 10, 2018
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California's 2018 legislative session came to a close in August, and Gov. Jerry Brown must sign or veto bills by Sept. 30. Here are a few workplace policies that employers will need to review—and potentially update—if pending legislation is enacted.

Sexual-Harassment Prevention

The #MeToo movement dominated the 2018 legislative session, and over a dozen sexual-harassment-related bills made it to the governor's desk. In light of the current political and social environment, it is safe to say that many of these bills will be enacted, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and the governmental affairs director for the California State Council for the Society for Human Resource Management.

"One of the interesting things about these various #MeToo bills is how, collectively, they address so many different issues," he added.

Expanded training is a central focus of the anti-harassment bills. Some proposals would require businesses with five or more employees to provide sexual-harassment-prevention training to all workers. Currently, only businesses with 50 or more employees must provide such training to supervisory employees.

[SHRM members-only toolkit: Complying with California Sexual Harassment Training Requirements]

Among other things, proposed legislation would:

  • Prohibit confidentiality and nondisclosure agreements related to workplace sexual harassment and other claims.
  • Extend how long employers are required to retain records on sexual-harassment complaints.
  • Extend the statute of limitations for many claims under the California Fair Employment and Housing Act.

"If employers haven't already responded to the #MeToo movement, they should make sure that their policies and procedures are up-to-date and compliant to best prevent sexual harassment," said Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento. "The stakes will get higher after these bills go into effect, so the time to act is now."

Pay Equity

Legislative efforts to close the gender pay gap and address pay disparities based on gender, race and ethnicity continued in 2018. For example, SB 826, which is awaiting the governor's approval, would require publicly traded California companies to appoint a certain number of women to their boards of directors.

Under SB 1284, which failed to pass, many California employers with at least 100 employees would have been required to submit annual pay-data reports to the state for certain job categories. The pay data would have been further categorized by gender, race and ethnicity.

Employers should continue to evaluate pay-equity issues, said Christopher Olmsted, an attorney with Ogletree Deakins in San Diego. "Conducting periodic reviews of employee compensation and pay practices will help ensure that employers are complying with the growing number of pay-equity laws," he added.

Brown already signed AB 2282 to amend the state's law banning salary-history inquiries. The amendments clarify certain aspects of the law regarding proper interview questions, pay-scale disclosure and how the law applies to existing staff, Olmsted explained.

Lactation Accommodations

There are two lactation-accommodation bills pending, and at least one will likely be enacted, Kalt said. One of the bills would make California's lactation-accommodation law consistent with federal law on the requirement that a lactation space can't be a bathroom. The other bill is much more detailed, he noted. Employers would need to comply with a number of very specific requirements beyond simply providing time off and a location to express milk.

San Francisco employers should note that the city has a detailed lactation-accommodation ordinance, which took effect in January.

Second-Chance Hiring

Many California employers can't ask job applicants about their criminal histories until a conditional offer is made. However, employers can ask job applicants about criminal convictions, including expunged records, for certain roles, particularly if such inquiries are mandated by federal or other state laws. SB 1412 would require employers to ensure that they are not receiving or considering information about convictions beyond the particular conviction that would disqualify the applicant for the role.

"An employer should not have the option of eliminating job applicants from gainful employment based solely upon an irrelevant crime," said the bill's sponsor, state Sen. Steven Bradford, D-Gardena.

However, since many background checks do not operate by simply seeking a particular conviction, this bill is very heavily opposed, Kalt noted.

Immigration-Related Notifications

AB 2732 would prohibit employers from intentionally destroying or confiscating a worker's immigration documents, such as a passport. This bill, which deals with "document servitude," is perhaps a "sleeper bill of sorts" in that most HR practitioners know that they are not allowed to destroy an employee's immigration or citizenship documents to force them into bondage, Kalt said. "However, this bill goes beyond that situation and would require all employers to post and hand out new notices and forms and to retain signed copies of these documents confirming receipt."

If the bill is enacted, employers will need to be mindful of its notice requirements, even if they are not destroying immigration paperwork, he said.

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