Top 5 New Employment Laws Coming Soon to California

Laws affect policies on staffing, immigration, leaves of absence and harassment training

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California Governor Jerry Brown signed several significant employment bills that will take effect on Jan. 1, 2018, and many businesses in the state will need to update their policies and practices accordingly. Here are the top five new state laws that HR professionals should start preparing for now.

  1. A.B. 168: Salary history inquiries. Employers will no longer be able to ask job applicants about their current or prior earnings. Employers will also have to provide the pay scale for a position upon an applicant's request. 
  2. A.B. 450: Immigration enforcement. Employers will have to demand warrants and subpoenas from Immigration and Customs Enforcement (ICE) agents before any enforcement activities and will have to provide certain notices to employees and their union representatives.
  3. A.B. 1008: Ban the box. Employers with at least five employees won't be allowed to consider a job applicant's criminal history until a conditional employment offer is made. If the employer decides to deny employment based on an applicant's criminal history, the employer must follow certain steps before making a final decision.
  4. S.B. 63: New parent leave. Small businesses with 20-49 employees will have to provide 12 weeks of job-protected baby bonding leave within the first year following a child's birth, adoption or foster care placement.
  5. S.B. 396: Gender identity and sexual orientation harassment training. Sexual harassment training is already required for employers with 50 or more employees. That will soon need to include training on gender identity, gender expression and sexual orientation harassment. Employers will also need to post a transgender rights notice in the workplace.

Overall, this year's legislative session seemed to continue recent California employment law trends focusing on California Equal Pay Act-related issues and immigration—as there have been new laws passed in each of these areas in the last few years, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego.

"These bills signal further expansion of the role of government in restricting the day-to-day operations of employers, particularly around issues of hiring, firing and leave," said Benjamin Ebbink, an attorney with Fisher Phillips in Sacramento.

Some of these new laws will likely lead to increased litigation against employers, he added. "Most employers simply want clear rules so they can comply with the law and not get sued."

Several of the bills deal specifically with the job application and hiring process and restrict what information employers can consider and what questions they can ask during that process. These will force employers to revise their hiring documents and processes and to train any staff members that are involved in these processes, Ebbink said.

Kalt noted that California is doing a little catch-up in these areas because many states and cities—including several cities in California—have already enacted their own laws limiting inquiries about salary and criminal conviction history.

"Since California seemingly always needs to put its spin on things, national employers may find themselves dealing with multiple versions of these laws nationwide and multiple versions within California," he said.

Additionally, small businesses with 20-49 employees that aren't covered by the federal Family and Medical Leave Act or the California Family Rights Act will now have to provide job-protected, unpaid baby bonding leave.

"As an employment lawyer, I can tell you that leave issues are the most complex and generate the most questions from clients," Ebbink said. "Smaller employers who have not dealt with these issues in the past may have a steep learning curve when it comes to learning the ropes" under the new leave law.

Pay Transparency Bill Vetoed

Although Brown approved many of the key employment bills this session, he did veto one that would have required large employers to publicly post gender pay data.

A.B. 1209 would have required employers with 500 or more California employees to gather data on the differences in pay between male and female exempt employees and between male and female board members. Employers would have been required to submit the data to the state, and the information would have been made available on a public website.

"I have strongly supported policies that ensure women are compensated equitably and will continue to do so," Brown said in a letter to the state Assembly. However, Brown said he feared that the ambiguous wording of A.B. 1209 may not lead to data collection that will meaningfully contribute to closing the gender pay gap. "Indeed, I am worried that this ambiguity could be exploited to encourage more litigation than pay equity," he said.

Pay equity will likely continue to be an issue that lawmakers will address in future sessions, Kalt noted. In 2015, Brown signed the Fair Pay Act, which strengthened the Equal Pay Act's gender-based pay equity protections. The state fair pay law was amended the next year to include pay protections based on race and ethnicity.

Pay equity is a hot topic that probably won't fade anytime soon. "A.B. 1209 is all but certain to return next year," Kalt said.

On the Horizon

Looking ahead to 2018, California lawmakers may continue to play catch-up in terms of pursuing so-called predictive scheduling and opportunity-to-work laws, Kalt said.

San Francisco, Seattle and Oregon have passed scheduling laws that require businesses to provide workers with advance notice of their schedules or face penalties.

San Jose has an "opportunity-to-work" ordinance that requires employers to offer additional hours to part-time employees before looking for outside help. Although a similar statewide bill was introduced this year, it was put on hold so lawmakers could first see how such requirements play out in San Jose.

 

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