Several California labor and employment law bills passed in both the state assembly and senate on or before the September 15, 2017, legislative deadline. Governor Brown will have until October 15, 2017, to sign or veto these bills.
Ban the Box
AB-1008 proposes to ban questions about job applicants’ criminal histories. If enacted, job applicants could not be asked about their criminal records, and similar questions on job applications would also be prohibited. Only after a conditional job offer was made could an employer consider such information.
The final version of the bill eliminated restrictions that would have limited background checks to disclosing misdemeanors within three years of conviction, and felonies within the past seven years.
If an employer intended to deny an applicant due to his or her conviction history, it would be required to conduct an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job that justifies denying the applicant the position. Employers would be required to consider all of the following: (i) the nature and gravity of the offense or conduct; (ii) the time that has passed since the offense or conduct and completion of the sentence; and (iii) the nature of the job held or sought.
In the event that an employer were to decline to hire an applicant with a criminal history, the employer would be required to provide written notice to the employee identifying the disqualifying conviction. A copy of the conviction history report would need to be provided to the applicant. The employer would also be obligated to explain that the applicant has five business days to provide a response. The applicant’s response could include, among other information, evidence challenging the accuracy of the conviction history report that is the basis for rescinding the offer, or evidence of rehabilitation or mitigating circumstances. The applicant could initially respond within five days to state that the information is disputed, in which case the applicant would have an additional five days to submit supporting evidence. The employer would be required to consider the applicant’s submitted information.
If an employer made a final decision to deny an application solely or in part because of the applicant’s conviction history, the employer would be required to notify the applicant in writing of the final denial or disqualification. The employer could, but would not be required to, justify or explain its reasoning for making the final denial or disqualification. It would also need to notify the applicant of any existing procedure the employer has for the applicant to challenge the decision or request reconsideration and the applicant’s right to file a complaint with the California Department of Fair Employment and Housing.
The bill is part of a larger national trend. In California, the cities of Los Angeles and San Francisco have passed “ban the box” ordinances. A dozen other cities and several states have also adopted some variation of “ban the box” law.
Prohibition on Salary History Inquiries
AB-168 proposes to prohibit an employer from asking for a job applicant’s salary history information. However, an applicant would still be able to voluntarily disclose his or her salary history. The bill would also prohibit consideration of salary history as a factor in making a hiring decision (even if volunteered by the applicant). If an applicant voluntarily disclosed his or her prior salary, the employer would be allowed to consider that information in determining salary for that applicant.
The bill would also require an employer, upon reasonable request, to provide a pay scale for a position to an applicant.
This bill is not specifically tied to the California Fair Pay Act, but it is ideologically related. It follows on the heels of AB-1676, passed in 2016, which amended the California Fair Pay Act to provide that prior salary cannot, by itself, be a “bona fide factor other than sex” justifying a pay disparity between employees of opposite genders. It also follows a trend established by other jurisdictions, such as Massachusetts, that have banned salary history inquiries.
Publication of Gender Pay Differentials
AB-1209 proposes to require employers with 500 or more employees in California to collect data regarding gender pay differentials for exempt employees and board of director members by July 1, 2019, and every two years thereafter. The information would be submitted to the California Secretary of State beginning on July 1, 2020.
Specifically, the law would require employers to collect data showing the difference between the mean and median salary of male exempt employees and female exempt employees, by each job classification or title. Covered companies would also be required to collect the same information regarding male and female members of the board of directors.
The proposed law states that the California Secretary of State shall publish the information on a website if and when the California legislature provides adequate funding for such an endeavor.
Small Business Parental Leave
SB-63 proposes to require small employers to provide unpaid parental leave. The purpose of the leave would be to bond with a new child within one year of the child’s birth, adoption, or foster care placement. The law would apply to employers with 20–49 employees in a 75-mile radius. Employees would be eligible to take the leave provided that they have worked for the employer for at least 12 months and have worked at least 1,250 hours in the past 12 months for the employer.
During the leave, the company would be required to continue to pay its regular share of healthcare premiums. Recovery of the premiums would be permitted in certain circumstances when the parent does not return to work following the leave.
Where both parents work for the same company, the employer would be able to require the parents to take no more than a combined 12-week leave.
If enacted, this bill will impose a new leave law on small employers that are presently exempt from the California Family Rights Act, which applies to businesses with 50 or more workers.
Immigration Enforcement
AB-450 would prohibit employers from providing voluntary consent to an immigration enforcement agent to enter nonpublic areas of a place of labor unless the agent were to provide a judicial warrant. The law would not prohibit inviting immigration officers into nonpublic areas, where no employees are present, in order to verify the existence of a warrant.
Except as required by federal law, the bill would also prohibit an employer from providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records without a subpoena or court order. This prohibition would not apply to I-9 Employment Eligibility Verification forms and other documents for which a notice of inspection has been provided to the employer.
If enacted, the law would also require employers provide a notice to each current employee of any inspections of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration agency within 72 hours of receiving notice of the inspection. The posted notice would have to contain the following information: (A) the name of the immigration agency conducting the inspections of I-9 Employment Eligibility Verification forms or other employment records; (B) the date that the employer received notice of the inspection; (C) the nature of the inspection to the extent known; and (D) a copy of the notice of inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted. Furthermore, the posting would need to be in the language the employer normally uses to communicate employment-related information to the employee.
The law would also prohibit an employer from reverifying an employee’s eligibility to work unless specifically required by federal statutory law.
The bill would grant the state labor commissioner or the attorney general the exclusive authority to enforce these provisions. The bill would prescribe penalties for failure to satisfy the prohibitions described above of $2,000–5,000 for a first violation and $5,000–10,000 for each subsequent violation.
Sexual Harassment Prevention Training
SB-396 would expand the requirement that employers provide sexual harassment training to supervisors. Current law requires employers with 50 or more employees to provide sexual harassment and abusive conduct prevention training every two years, or within six months of an individual’s assumption of supervisory duties. This bill would require covered employers to include training on harassment based on gender identity, gender expression, and sexual orientation.
Reproductive Health Discrimination
If enacted, AB-569 will prohibit employers from discriminating against an employee based on his or her reproductive health decisions. The bill appears to be aimed at religious organizations, although not expressly so.
Reproductive health decisions could include the timing or use of any drug, device, or medical service, such as birth control or the decision to have an abortion.
The bill would also require an employer to amend employee handbooks to include notice of employee rights and remedies under the provisions of this bill.
Copies of Injury and Illness Prevention Programs
AB-978, if signed by the governor, will require an employer to provide a copy of its Injury and Illness Prevention Program to a current employee or his or her authorized representative. Upon request, employers would be required to provide the document at no charge as soon as practicable, but no later than 10 business days from the date the employer receives the request.
Construction Contractor Wage Liability for Subcontractors
AB-1701 would hold construction contractors liable for the wage and hour violations of their subcontractors. This bill provides that for contracts entered into on or after January 1, 2018, a direct contractor making or taking a contract in California for the erection, construction, alteration, or repair of a building, structure, or other private work is liable for any debt owed to a wage claimant incurred by a subcontractor at any tier acting under the contractor.
The contractor’s liability would extend only to any unpaid wage and fringe or other benefit payments or contributions, including interest owed, but would not extend to penalties or liquidated damages.
The law would give the contractor the right to demand inspection of the subcontractor’s payroll data in order to ensure compliance with wage and hour obligations.
It would allow either the labor commissioner or a wage claimant to bring a civil action against a direct contractor to collect wages owed.
Labor Commissioner Retaliation Investigations
SB-306 would authorize the state labor department to commence an investigation of an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during the course of a wage claim or other specified investigation being conducted by the labor commissioner. Current law allows the agency to take action only upon receipt of an employee complaint.
The bill would also authorize the labor commissioner, upon finding reasonable cause to believe that any person has engaged in or is engaging in a violation, to petition a superior court for injunctive relief. The bill would require a court, if an employee were discharged or faced adverse action for raising a claim of retaliation for asserting rights under any law under the jurisdiction of the commissioner, to order appropriate injunctive relief on a showing that reasonable cause exists to believe a violation has occurred. The injunctive relief would remain in force until the agency completed its review or issued a citation. The injunctive relief would not prohibit the employer from disciplining or discharging the employee for conduct that is unrelated to the claim for retaliation.
The labor commissioner would be vested with the authority to issue monetary and other relief, including an order to reinstate the employee and pay back wages.
