California Legislative Update: 2017–18 Session Sees Several Employment-Related Bills
Author: Christopher W. Olmsted (San Diego)
Published Date: February 27, 2017
The California legislature is off to a quick start with a large number of labor and employment law proposals. Currently, 71 bills propose to amend the California Labor Code, and several additional bills seek to modify antidiscrimination laws. Democrats not only control both the California State Senate and Assembly, but gained a supermajority with the power to override a gubernatorial veto in the last election. Party leaders have pledged to fight and counteract any changes in policy on the federal level. It seems that the time is ripe for a progressive labor agenda.
Below is a summary of significant pending labor and employment bills. None of these bills have been passed by the legislature or signed by the governor yet, and the text of these proposed laws could change significantly as they wind through the California State Senate and Assembly.
Restrictions on Hiring New Employees
AB-5, also known as the Opportunity to Work Act, proposes to require employers to offer additional hours of work to an existing nonexempt employee before hiring an additional employee, temporary employee, or subcontractor. Work would need be offered to an existing employee who, “in the employer’s reasonable judgment, has the skills and experience to perform the work.” The offer would not be required if it would cause the employee to work overtime hours. The employer would be required to maintain records demonstrating that the hours were offered to existing employees. The law would apply to employers with 10 or more employees.
The bill resembles a San Francisco city ordinance applicable to certain large retailers and the City of San Jose's Measure E—the "Opportunity to Work" ordinance. If enacted, the bill would impose a substantial administrative burden and recordkeeping obligation on most California employers.
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. Background checks for employment purposes would be limited to disclosing misdemeanors within three years of conviction and felonies within seven years of conviction. In the event that an employer were to decline to hire an applicant with a criminal history, the employer would be required to disclose the basis for its decision and follow a 10-day procedure allowing the applicant to respond and rebut the information.
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. The bill would also require an employer, upon reasonable request, to provide “pay scale” for a position to an applicant for employment.
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.
Expansion of Family Leave
SB-62 proposes to allow an employee to take leave to care for additional categories of family members under the California Family Rights Act (CFRA). The term "child" would be expanded to include adult children as well as a domestic partner's children. The bill would also allow employees to take leave to care for a grandparent, grandchild, sibling, or domestic partner with a serious health condition. The definition of "parent" would be expanded to include a parent-in-law.
If enacted, this bill will create new categories of leave time not recognized by the federal Family and Medical Leave Act of 1993. As a result, it could double the amount of leave time available to eligible employees—from 12 to 24 weeks.
Small Business Parental Leave
SB-63 proposes to require small employers to provide parental leave. Employers with 20–49 employees in a 75-mile radius would be required to allow employees 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.
If enacted, this bill will impose a new leave law on small employers that are presently exempt from CFRA, which presently applies to businesses with 50 or more workers.
Christopher Olmsted is a shareholder in the firm's San Diego office. Mr. Olmsted helps businesses avoid employment-related legal claims by providing California employment law compliance advice. He also defends employers in a variety of litigation matters. Mr. Olmsted's employment law compliance and litigation experience includes: California FEHA and Title VII discrimination, harassment and retaliation claims; wrongful termination claims; wage and hour compliance and defense of claims and labor...