Effective January 1, 2018, California employers will be subject to new requirements related to leave, background checks, anti-retaliation, and more. Click each of the updates below to learn more.
California Governor Jerry Brown has signed legislation (Senate Bill 63) that requires covered employers with 20 or more employees to provide up to 12 weeks of job-protected parental leave to eligible employees. Senate Bill 63 is effective January 1, 2018.
To be eligible for parental leave under Senate Bill 63, employees must:
Eligible employees are entitled to take up to 12 weeks of parental leave to bond with a new child within one year of the child's birth, adoption, or foster care placement. In cases in which both eligible parents are employed by the same employer, the parents are entitled to a combined total of 12 weeks of leave.
Parental leave is unpaid; however, the employee can use accrued vacation pay, paid sick time, or other accrued paid time off during the period of parental leave.
Note: California has a Paid Family Leave program that is funded through payroll deductions and offers partial wage-replacement benefits. One of the qualifying reasons for such benefits is bonding with a new child. The state determines whether employees are eligible for the benefits, including the amount of benefits they may receive.
Employers must maintain and pay for coverage for an eligible employee who takes parental leave under a group health plan at the level and under the conditions that coverage would have been provided if the employee had continued to work.
An employer may recover the premium it paid for maintaining coverage for the employee under the group health plan if the employee fails to return from leave, as long as the reason he or she failed to return to work is not due to the continuation, recurrence, or onset of a serious health condition or other circumstances beyond the employee's control.
At the end of parental leave, the employee must be reinstated to the same or a comparable position.
In addition to the leave provided under Senate Bill 63, an employee is entitled to take leave provided by the California Pregnancy Disability Leave Law (Government Code Section 12945) if the employee is otherwise qualified for that leave.
However, Senate Bill 63 does not apply to an employee who is subject to both the California Family Rights Act (Government Code Section 12945.2) and the federal Family and Medical Leave Act of 1993, both of which include a leave entitlement for new parents.
Senate Bill 63 prohibits employers from taking adverse action against individuals for exercising their rights under the law.
Covered employers should review policies and procedures to ensure compliance with Senate Bill 63. In addition, supervisors should be trained on the law, including how to handle requests for such leave.
Note: The HR411® Employee Handbook Wizard now includes a Parental Leave policy for California employees. See the Alerts section, found on the Employee Handbook Wizard home page, for more information and to add this policy in your handbook.
California Governor Jerry Brown has signed legislation (Assembly Bill 168) that prohibits employers from seeking salary history information from applicants. Assembly Bill 168 is effective January 1, 2018.
Assembly Bill 168 prohibits employers from:
Assembly Bill 168 also requires that employers provide the pay scale for a position to an applicant upon reasonable request.
The law doesn't apply to salary history information disclosable to the public pursuant to federal or state law. Additionally, if an applicant voluntarily (and without prompting) discloses salary history information to a prospective employer, the prospective employer isn't prohibited from considering or relying on that information in determining the salary for that applicant.
California employers should review their hiring procedures and remove salary history questions from their application forms by January 1, 2018. Anyone involved with screening or interviewing applicants should also be trained on the law. Note: HR411®'s sample employment application form no longer includes questions about pay history.
California Governor Jerry Brown has signed legislation (Assembly Bill 1008) that will restrict employers from asking applicants about their criminal history and require employers to take certain steps before taking adverse action based on criminal history information. Assembly Bill 1008 takes effect on January 1, 2018.
The law applies to employers with five or more employees.
Covered employers are prohibited from:
Once employers extend a conditional job offer, they may seek permitted conviction history information. Before taking adverse action based on an applicant's conviction history, employers must consider whether the information has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. In making the assessment, the employer must consider all of the following:
Notification:
If the employer makes a preliminary decision to disqualify the applicant based on their criminal history, the employer must notify the applicant in writing. The notification must contain all of the following:
Before making a final decision, employers must give applicants at least five business days to respond to the preliminary-decision notice. If, within the five business days, the applicant notifies the employer in writing that he or she disputes the conviction history report and is taking specific steps to obtain evidence supporting that assertion, the employer must give the applicant five additional business days to respond to the notice. If the applicant submits the information within the deadline, the employer must consider the information before making a final decision.
If an employer makes a final decision to deny an applicant employment because of his or her conviction history, the employer must notify the individual in writing of all the following:
Assembly Bill 1008 doesn't apply to positions:
Covered employers should remove criminal history questions from application forms and review hiring procedures to ensure compliance with Assembly Bill 1008 by January 1, 2018.
The California Department of Industrial Relations has announced an increase to the pay rates computer software employees and physicians must receive in order to be exempt from overtime. The new rates are effective January 1, 2018. Additionally, the minimum salary required for the administrative, professional, and executive exemptions will increase at the start of the year.
Under California Labor Code Sections 515.5 and 515.6, computer software employees and physicians are exempt from the state's overtime requirements if they meet specific duties requirements and earn at least a certain rate of pay. These pay thresholds are adjusted annually for inflation.
California also has exemptions for bona fide administrative, professional, and executive employees. To be exempt from overtime, these employees must meet certain state salary and duties tests. In California, these exempt employees must be paid a salary of at least twice the state minimum hourly wage based on full-time employment of 40 hours per workweek. The state's minimum wage will increase on January 1, 2018.
Computer software employees may be paid on an hourly or a salary basis to qualify for exemption from California's overtime requirements. Beginning January 1, 2018, these employees must earn at least:
To qualify for exemption from the state's overtime requirements in 2018, licensed physicians and surgeons are required to earn an hourly wage of at least $79.39.
For the administrative, professional, and executive exemptions, employers with 26 or more employees must pay a salary of at least $880 per week beginning January 1, 2018. Employers with fewer than 26 employees must pay a minimum salary of at least $840 for these exemptions.
California employers that intend to classify employees as exempt from overtime under one of these exemptions should ensure employees meet the applicable salary and duties tests. Otherwise, these employees must be classified as non-exempt and are entitled to overtime.
California Governor Jerry Brown has signed legislation (Senate Bill 396) that will require employers to include gender identity, gender expression, and sexual orientation harassment training in mandatory sexual harassment training. The law also requires all employers with five or more employees to post a notice on transgender rights. Senate Bill 396 is effective January 1, 2018.
The California Fair Employment and Housing Act (FEHA) requires employers with 50 or more employees to provide sexual harassment training to all supervisors within six months of assuming a supervisory role and once every two years. The law requires that the training include certain components. FEHA also requires all employers to post an anti-harassment notice in a prominent and accessible location in the workplace.
Effective January 1, 2018, required sexual harassment training must address the topics of harassment based on gender identity, gender expression, and sexual orientation. The training must include practical examples of harassment based on gender identity, gender expression, and sexual orientation and be presented by trainers with knowledge and expertise in those areas.
Additionally, Senate Bill 396 requires employers with 5 or more employees to post a notice on transgender rights in a prominent and accessible location in the workplace. The Department of Fair Employment and Housing (DFEH) is responsible for developing the required poster, which can be found in the State & Federal Resources section of HR411.
Note: It was originally thought that the poster applied to all employers, but the DFEH has since clarified that the poster applies only to those with five or more employees. This Compliance Update has been updated to reflect the change.
Employers subject to these requirements should ensure their sexual harassment training complies with Senate Bill 396. Additionally, employers with 5 or more employees must post the required notice on transgender rights.
California has enacted Senate Bill 306 expanding the state's anti-retaliation protections. Senate Bill 306 is effective January 1, 2018.
California prohibits employers from taking adverse action against applicants and employees because they engaged in protected activity, such as filing a claim for back wages owed. Individuals who allege their employers violated these protections may seek reinstatement or employment, reimbursement for lost wages and work benefits, and may file a complaint with the Division of Labor Standards Enforcement (DLSE).
Investigations:
Senate Bill 306 allows the DLSE, when deciding a wage claim, conducting a field inspection, or investigating immigration-related threats, to launch a retaliation investigation if it suspects a violation occurred under any of the laws under the Labor Commissioner's jurisdiction. Therefore, a retaliation investigation can be prompted with or without a worker complaint.
Injunctive Relief:
During the course of investigating a retaliation complaint, the Labor Commissioner may seek temporary injunctive relief from a court if it has reasonable cause to believe that the employer has engaged in unlawful retaliation. This means an employer could be required to reinstate the employee (or comply with other temporary injunctive relief) even though the investigation has yet to conclude. In addition to evaluating any harm resulting to an individual from the employer violating the law, the court will also consider the chilling effect of the alleged retaliation on other employees asserting their rights. Any temporary injunctive relief granted will remain in effect until the Labor Commissioner issues a final determination or citation in the case.
Employers that willfully refuse to comply with the court order are subject a fine of $100 for each day of noncompliance, up to a maximum of $20,000. The penalty is payable to the affected employee.
Citations:
If, at the end of the investigation, the Labor Commissioner concludes the employer engaged in unlawful retaliation, the Commissioner may issue a citation describing the violation, the amount of wages and penalties due, and any other appropriate relief. Remedies may include reinstating the employee, reimbursing lost wages and interest, and posting notices to employees. The law includes procedures for employers that wish to challenge the citation (first through the Labor Commissioner and then a court).
If the Labor Commission prevails in enforcing a retaliation case through the courts, the Commissioner may seek attorney's fees.
California employers should review their anti-retaliation policies and procedures to ensure compliance with state (and federal) law. Supervisors should also be trained on the retaliation protections for employees.
California Governor Jerry Brown has signed legislation (Assembly Bill 450) that establishes new immigration-enforcement-related requirements for employers in the state. Assembly Bill 450 is effective January 1, 2018.
Worksites:
Assembly Bill 450 generally prohibits employers from voluntarily allowing immigration-enforcement agents to enter nonpublic areas of the worksite, unless the agent has a judicial warrant. Employers aren't prohibited from taking the agent to a nonpublic area, where employees are not present, for the purpose of verifying whether the agent has a judicial warrant, provided no consent to search nonpublic areas is given in the process.
Records:
The law also prohibits employers from voluntarily allowing immigration enforcement agents to access, review, or obtain employee records without a subpoena or judicial warrant. This prohibition doesn't apply to I-9 Forms (Employment Eligibility Verification) and other documents for which a Notice of Inspection has been provided to the employer.
Within 72 hours of receiving a Notice of the Inspection of I-9 Forms and other documents from an immigration agency, employers must notify each current employee (and the employee's authorized representative, if applicable). The posted notice for employees must contain the following information:
The law directs the Labor Commissioner to develop (by July 1, 2018) a template poster for employers to use to comply with the notice requirement.
Within 72 hours of receipt, employers must also provide affected employees (and the employee's authorized representative, if applicable) with a copy of the written immigration agency notice that provides for the inspection results and written notice of the obligations of the employer and the affected employee arising from the inspection. The notice from the employer must relate to the affected employee only and must be delivered by hand at the workplace if possible and, if hand delivery is not possible, by mail and email, if the email address of the employee is known. The notice must contain the following information:
Penalties for violating the law range from $2,000 to $5,000 for a first violation and $5,000 to $10,000 for each subsequent violation.
California employers should review Assembly Bill 450 in full and coordinate compliance efforts accordingly. Supervisors should also be trained on how to respond should immigration enforcement agents seek access to the worksite or employee records.
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