It’s official. Governor Jerry Brown has signed all the legislative bills for the 2017 legislative year. There are several new laws that employers should be aware of and should be prepared to implement by January 1, 2018. We have previously reported on several of these bills, and we have compiled a list for ease of reference.
AB 450: “Immigration Worker Protection Act”
AB 450 will essentially take away an employer’s ability to voluntarily consent to ICE performing audits. The bill makes it clear that it does not override federal law and that employers must act in compliance with a subpoena or court order presented by ICE.
As of the effective date, January 1, 2018, employers will be prohibited from voluntarily consenting to immigration enforcement agents entering nonpublic areas of the workplace without a warrant. Additionally, employers will be prohibited from voluntarily consenting to immigration enforcement agents accessing, reviewing, or obtaining employment records without a subpoena or court order. Not only will employers be prohibited from providing voluntary consent, employers will be required to provide notice to current employees of an inspection of Form I-9 within 72 hours of receiving a federal Notice of Inspection. Penalties for non-compliance range from $2,000 to $5,000 for an initial violation and $5,000 to $10,000 for subsequent violations. For more information regarding this bill, see our previous post here.
AB 1008: “Ban the Box”
As we previously reported here and here, as of January 1, 2018, employers with five or more employees will be prohibited from asking about a job applicant’s criminal history until a conditional offer of employment has been made. Additionally, it will be unlawful to consider or provide information about arrests not resulting in a conviction, referral to or participation in a diversion program, or convictions that have been sealed, dismissed, expunged, or eradicated by statute when conducting a criminal background check in connection with an application for employment.
Employers should update applications to remove inquiries related to conviction history (i.e. “ban the box”). Additionally, employers should train hiring managers and third-party investigators on the types of information that may be obtained during a background search for conviction history information by the effective date of January 1, 2018.
AB 168: Prohibition on Salary Inquiries
As of January 1, 2018, employers will be prohibited from asking job applicants to disclose their salary history. An employer will be prohibited from asking a prospective candidate their salary history at any point during the application and/or interview process. If an employer’s current application contains a section asking for salary history, the employer should immediately revise the application to exclude any salary history questions. Although the employer will be prohibited from asking job applicants to disclose their salary history, an employee may voluntarily disclose that information. However, if an employee does voluntarily disclose their salary information, the employer will be prohibited from relying on the salary information in determining whether to offer the job or what salary to offer an applicant.
Additionally, employers will be required to provide job applicants with a pay scale for the position the applicant is applying for upon reasonable request. If an employer does not have a set pay scale for their positions, it would be best to prepare a pay scale now. Employers will still be able to ask applicants their salary demand so long as the employer avoids asking about the applicant’s salary history.
SB 63: “The New Parent Leave Act”
The New Parent Leave Act has expanded the current California Family Rights Act (“CFRA”) parental leave benefits to smaller employers. Effective January 1, 2018, Employers with 20-49 employees within a 75 mile radius will be required to provide up to 12 weeks of unpaid parental leave to bond with a new child for eligible employees. Employers with 20-49 employees should update their employee handbooks to include the parental leave policy. Employers will be required to maintain employee medical benefits during the leave period and should be prepared to determine how to cover job duties while employees are on leave. For more information regarding this bill, see our previous post here.
SB 396: Sexual Harassment Training Expanded
Employers with 50 or more employees will be required to modify mandatory sexual harassment training to include discussion of gender identity, gender expression, and sexual orientation. Additionally, employers will be required to post an amended poster on discrimination developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace. Multiple copies of the amended poster will be made available online by the Department of Fair Employment and Housing. The expansion of the training will be mandatory starting January 1, 2018.
SB 295: Duties of Farm Labor Contractors Expands Regarding Sexual Harassment Training
As of January 1, 2018, Farm Labor Contractors (“FLC”) will be required to follow additional compliance requirements in sexual harassment prevention and reporting training as a part of the California FLC licensing process. FLCs will be required by law to provide sexual harassment training for agricultural employees in the language understood by those agricultural employees. Additionally, FLCs will have to provide the Labor Commissioner with the number of agricultural employees trained and a complete list of materials used to provide the sexual harassment training. All FLCs must begin to expand their sexual harassment training no later than January 1, 2018. For more information regarding this bill, see our previous post here.
SB 306: Injunctive Relief for Retaliation
Under this new law, the Department of Labor Standards Enforcement (“DLSE”) will be authorized to investigate an employer, with or without a complaint being filed, when retaliation or discrimination is suspected during a wage claim or other investigation being conducted by the Labor Commissioner. If the Labor Commissioner finds reasonable cause to believe a violation has occurred, then the Labor Commissioner may seek injunctive relief. Additionally, employees will be permitted to seek an immediate and temporary injunction, such as a temporary restraining order, that would prohibit an employer from terminating an employee if the allegation of retaliation is made, before completing an investigation. However, if an employer disciplines or terminates an employee for conduct unrelated to the retaliation claim then injunctive relief would not apply. This new law goes into effect January 1, 2018.
SB 225: Revised Human Trafficking Notice Required by Farm Labor Contractors
Existing law already requires Farm Labor Contractors (“FLC”) to post a notice containing information relating to slavery and human trafficking. This bill will require a revised notice to additionally state that a person can also text a specified number for services and support. The Department of Justice is responsible for developing a model notice with this change by January 1, 2019. FLCs would not be required to post the updated model notice until on and after January 1, 2019. (No, the date is not a typo. FLCs have slightly over one year to post the updated notice).
COUNSEL TO MANAGEMENT:
There are a lot of new laws this year; please make sure to take the time to understand the implications of these laws and how they may affect your company. If you have any questions or concerns regarding the new bills or how to comply with their requirements, please do not hesitate to contact the experts at the Saqui Law Group.