California Update: 5 Workplace Bills Moving Through the Legislature

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Sacramento is not only the capital of California, but it's also the capital of the employment world: Whatever starts in Sacramento works its way around the country, said Michael Kalt, an attorney with Wilson Turner Kosmo in San Diego and the director of government affairs for the California State Council of SHRM (CalSHRM).

That's why it's critical for HR professionals to pay attention to what's happening in the California Legislature. Speaking at CalSHRM's 2017 California State Legislative and HR Conference on April 20, Kalt said it's important to understand the political dynamic in the state right now:

  • Democrats control all levels of the California government with an overwhelming majority in both legislative chambers. This means Democrats can pass measures without Republican support.
  • Gov. Jerry Brown is also a Democrat. Kalt said Brown is somewhat pragmatic and not guaranteed to sign all the bills passed by his party, but his political affiliation is relevant to how he may respond to proposed legislation.
  • If Brown does veto a bill, Democrats have a strong enough majority in each chamber to potentially override it.
  • This is the first year since 2003 that Democrats control the California Governor's Mansion and Republicans control the White House. Escalated tension levels can be expected, and laws may be proposed in California in reaction to what President Donald Trump's administration has done or is likely to do, particularly with regard to health care and immigration measures.

Considering the political posture in Sacramento, here are some workplace-related bills that Kalt says are likely to make their way to the governor's desk.

1. Expanded Parental Leave

Currently, employers with 50 or more employees in a 75-mile radius must provide eligible workers up to 12 weeks of parental leave in the first year after the birth or adoption of a child.

S.B. 63 proposes the New Parent Leave Act, which would require employers with 20-49 employees to also offer unpaid, job-protected baby-bonding leave to new parents.

Kalt said the goal of the bill is to afford more workers who pay into the state's paid-family-leave program the opportunity to take job-protected leave.

This will probably be the first test case of a potentially veto-proof bill, he noted. Brown has previously vetoed similar legislation, so it will be interesting to see if he vetoes this bill and if the Democrats override the veto.

2. Opportunity to Work

A.B. 5 is based on San Jose's Opportunity to Work Act, which took effect in March and gives current part-time employees the right to work more hours in certain situations before an employer can hire additional workers.

The statewide proposal, if enacted, would be the first of its kind anywhere in the nation, Kalt said. CalSHRM opposes the bill, in part because it would burden HR professionals with additional record-keeping requirements. Moreover, the San Jose ordinance is still in its infancy. "Let's see how that plays out before we rush to implement a new law," he said.

This bill passed the state Assembly's Labor and Employment Committee on April 19.

3. Salary History

A.B. 168 would prevent employers from asking about a job candidate's salary history until after a conditional employment offer is made.

The bill's supporters say that asking job candidates for their salary history isn't relevant to a job opening and that such questions institutionalize prior pay discrimination.

Under A.B. 168, employers would also have to tell candidates the salary range for the position upon request.

[SHRM members-only toolkit: Managing the Hiring Process in California]

Kalt said Brown vetoed similar legislation in the past, but bans on salary-history inquiries are gaining momentum. Massachusetts has already approved such a ban.

Kalt said he is fairly confident this bill will pass the legislature but he isn't sure if Brown will veto it again. California doesn't like to fall behind other states when it comes to passing new laws, he said.

The Labor and Employment Committee also voted in favor of A.B. 168 on April 19. Kalt noted that there was some opposition to the bill but less than in prior years.

4. 'Ban the Box'

"Ban-the-box" laws have been popping up in many states and localities. These laws prevent employers from asking job applicants criminal background questions until a certain point in the selection process.  

California already prevents state government agencies and cities from inquiring about or using criminal conviction information during the hiring process except in specified instances.

A.B. 1008 would expand such limitations by preventing private employers from inquiring about a job applicant's criminal record until after a conditional employment offer is made. The bill would also impose new notice and disclosure requirements if this information is sought.

Kalt thinks some version of this bill will pass the Legislature and make it to the governor's desk, but he said it's likely to first be revised.

5. Immigration Enforcement

In the past, California immigration bills were generally meant to supplement federal laws. A.B. 450, however, is in direct response to the Trump administration's immigration enforcement activities and puts HR on the front line to deal with the tension between potentially conflicting state and federal laws.

Except where federal law requires, and unless the federal government has a valid warrant or subpoena, A.B. 450 would prohibit employers from providing federal agents access to the worksite or to employment records—such as I-9 forms.

If enacted, employers that don't comply with the state law would face penalties of between $10,000 and $25,000 per violation.

The bill also has a host of new notice requirements that would fall on HR departments to communicate, Kalt said.

A.B. 450 would force HR professionals to be experts on a very complicated area of law and to make snap decisions. For example, federal immigration agents typically issue a "notice of inspection" instead of a subpoena, so HR professionals might have to choose whether to deny the agents' access to the worksite or permit access and face steep fines under state law.

A.B. 450 also passed the Labor and Employment Committee on April 19. Kalt gives it a 50/50 chance of being enacted with some revisions.

If it does become law, he said, HR professionals will need to familiarize themselves with federal immigration law—at least as it relates to workplace inspections. Among other things, they will also have to understand A.B. 450's various provisions and make sure the appropriate staff know how to check for a proper warrant or subpoena and how to execute the applicable notice requirements.

What Can HR Do?

Kalt said HR professionals should stay involved in the legislative process. They should track the bills that impact their industry and maintain their HR voice.

They should also look to the legislative calendar (state Senate and state Assembly), because critical decisions are made around key deadlines.

 

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