With the new year comes a fresh set of laws impacting employers conducting business in California. Effective January 1, 2018, California has enacted laws limiting employers’ ability to inquire into or consider an applicant’s salary and criminal history, expanding immigrant worker protections and parental leave entitlements, implementing new notice requirements regarding transgender rights and broadening the authority of the California Division of Labor Standards Enforcement. Specifically, employers should be aware of the following:
Ban on Inquiries Regarding Salary History
Employers engaged in recruiting efforts in California or who are seeking to fill a California-based position are now generally prohibited from seeking or relying on the salary history information of an applicant as a factor in determining whether to make him/her an offer of employment or what salary to offer him/her. Employers may now only rely on such information if it is voluntarily, without prompting, disclosed by the applicant. Additionally, upon reasonable request, employers must provide the pay scale for a position to an applicant.
Banning the Box and Limiting the Use of Criminal History
Employers with 5 or more total employees and who are engaged in recruiting efforts in California or are seeking to fill a California-based position are now prohibited from:
including on any application for employment, before making a conditional offer of employment, any question that seeks the disclosure of an applicant’s conviction history;
inquiring into or considering the conviction history of an applicant until after a conditional offer of employment has been made; and
considering, distributing, or disseminating information about any of the following while conducting a conviction history background check in connection with any application for employment:
arrests not followed by conviction;
referrals to or participation in a pre-trial or post-trial diversion program; and
convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law.
Additionally, employers intending to deny an applicant employment solely or in part because of the applicant’s conviction history are required to make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justify denying the applicant the position. If the employer makes a preliminary or final decision that the applicant’s conviction history disqualifies the applicant from employment, the employer must notify the applicant of this decision in a writing containing, among other things, specific information about the conviction relied upon as well as the applicant’s rights.
Extension of Parental Leave to Small Employers
The New Parent Leave Act applies to employers with California worksites employing at least 20 employees within a 75-mile radius. Employees at these worksites with more than 12 months of service and at least 1,250 hours of service during the 12-month period prior to the commencement of the leave are eligible for 12 weeks of unpaid, job-protected leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement. Employers must also maintain and pay for the employee’s continued coverage under a group health plan at the level and under the same conditions that coverage would have been provided had the employee continued to work. The New Parent Leave Act does not apply to employees who are covered by both the federal Family and Medical Leave Act and the California Family Rights Act, which already provide 12 weeks of unpaid, job-protected leave for bonding purposes to eligible employees of employers with at least 50 employees in a 75-mile radius.
Transgender Rights Poster and Training
Employers must now display a poster regarding transgender rights in a prominent and accessible location in their California workplace. Additionally, California law currently requires employers with 50 or more total employees to provide two hours of sexual harassment training for California supervisors every two years. That training must now cover harassment based on gender identity, gender expression and sexual orientation.
Expanded Immigrant Worker Protections
Subject to a few exceptions, employers are now prohibited from allowing immigration enforcement agents to enter any nonpublic areas of a California workplace without a judicial warrant or to access, review or obtain an employer’s employee records without a subpoena or judicial warrant. Employers are also prohibited from re-verifying employment eligibility of a current California employee at a time or manner not required by federal law (e.g. voluntary self-audits).
Additionally, employers are now required to provide California employees with notice of certain immigration enforcement actions. Specifically, within 72 hours of receiving a notice of inspection for I-9 Forms or other employment records by an immigration agency, an employer must provide notice to all current California employees. Employers are also required to provide affected California employees (i.e., those who may lack work authorization or whose authorization documents have been identified as deficient) (1) a copy of the inspection notice, upon reasonable request, (2) a copy of the immigration agency inspection results and (3) written notice of the obligations of the employer and the affected employee arising from the action.
Increased Division of Labor Standards Enforcement Authority
Finally, the authority of the California Division of Labor Standards Enforcement (DLSE) has been increased. The DLSE is now authorized to initiate an investigation when, during a wage claim or other investigation, it suspects retaliation or discrimination. This is true regardless of whether an employee has filed a discrimination or retaliation charge.
For additional information regarding these changes to California law and the impact they may have on your organization, please feel free to contact Amanda Smith or any other KWW attorney.