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  • Kevin Cleveland

California Employers Be Forewarned – New Law to Apply

In the last several weeks Governor Brown has signed into law and/or vetoed several pieces of legislation affecting employment in California.

AB 1008 (Ban the Box) – Effective January 1, 2018, California employers with five (5) or more employees will no longer be allowed to inquire about criminal history on employment applications or at any time throughout the application process (including interviews) prior to making a “conditional offer of employment”.  Once the conditional offer is made, the employer may do a criminal background check but then will be required to provide information to the applicant if employment is denied and enter into a lengthy process allowing the employee to dispute the matter and provide additional information.  Because of this delay, employers will be delayed in their ability to fill the position and may in fact place themselves in a position of being challenged in front of the Department of Fair Employment and Housing or even Civil Court.

AB 1701 (Contractor Liability for Wages) – This legislation also becomes effective January 1, 2018 and it requires that a direct contractor making or taking a contract in the State of California for the erection, construction, alteration, or repair of a building, structure or other private work, shall assume, and is liable for any debt owed to a wage claimant or third party on the wage claimant’s behalf, incurred by a subcontractor at any tier acting under, by, or for the direct contractor for the wage claimant’s performance of labor included in the subject of the contract between the director contractor and the owner.  In other words, the contractor is going to be the guarantor of wages of his subcontractors.

SB 396 (Expansion of Harassment Training) – California currently requires employers with fifty (50) or more employees to provide at least two (2) hours of sexual harassment and abusive conduct training every two (2) years to supervisors and managers and within six (6) months of an employee becoming a manager or supervisor.  Effective January 1, 2018, the new law will require employers to include their information in the training regarding gender identity, gender expression, and sexual orientation.  New posters will also be required once published by the Department of Fair Employment and Housing.

AB 168 (Prior Salary Prohibition) – This legislation effective January 1, 2018 prohibits employers from inquiring about or considering information concerning an applicants prior salary history in determining whether to offer employment to the applicant or the amount to pay the applicant.  The legislation also requires employers to provide a pay scale for any position upon request by the applicant and although the applicant may voluntarily (without prompting by the employer) disclose information regarding prior salary history, any such information should be noted by the employer without specific indications that it was not requested or prompted or face further legal problems.  The new law is intended to combat gender discrimination in wages but applies across the board to all applicants.

SB 63 – California has taken a major step away from the rest of the country by expanding parental leave rights under the California Family Rights Act to include employers with twenty (20) or more employees within seventy-five (75) miles.  Previously, the California Family Rights Act (CFRA) mirrored the Federal Family Medical Leave Act (FMLA) and both applied only to larger employers with fifty (50) or more employees within a seventy-five (75) miles radius.  California’s reduction of threshold will encompass hundreds if not thousands more employers who will need to be aware of the regulations and how they differ from the federal.  This expansion applies ONLY to the “baby bonding” provisions of the CFRA and not the rest of the Act.  The nuances of this law are extensive and should be covered with legal counsel in order to understand the potential issues.

Finally, Assembly Bill 450 signed into law by Governor Brown becomes effective January 1, 2018 and places restrictions on employers in their cooperation and compliance with Federal Immigration Compliance Enforcement officers (ICE).  The new California law prohibits employers from voluntarily allowing ICE agents to investigate non-public areas of California businesses and requires that they provide a warrant prior to any such search, even if the employer is inclined to cooperate.  This certainly sets up employers for a conflict with the feds and I also believe tramples on property owner’s rights as to whom they can allow to enter their premise.  I am sure litigation on this will follow and possibly even action by the feds.

On the other hand, Governor Brown did veto AB 1209, the gender pay data reporting bill that was pending and had been passed by the legislature.  This would have affected employers of five-hundred (500) or more employees and required them to maintain and submit data on gender pay issues.  Likewise, the Governor vetoed AB 568 which would have required school districts and community colleges to provide at least six (6) weeks of paid leave for pregnancy, childbirth and related conditions.

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