California Legislative Wrap Up: Employment Bills Headed to the Governor
Yesterday was the last day for the California Legislature to pass bills and send them to the Governor for approval. Here is the list of key labor and employment bills that passed and will either be vetoed or signed into law by the Governor:
AB 168 (Salary Inquiries): This bill would prohibit employers from inquiring about, or considering, information concerning an applicant’s prior salary history in determining whether to offer employment to the applicant and/or the amount to pay the applicant. It also requires employers to provide the pay scale for a position upon request by an applicant. An applicant may, however, voluntarily (without prompting by the employer) disclose information concerning prior salary history, in which case the employer may consider it in determining the employee’s compensation.
AB 450 (Immigration Worksite Enforcement Actions): This bill would prohibit California employers from complying with requests of federal immigration enforcement officials to enter non-public areas of the employer’s premises or to inspect the employer’s records in the absence of a judicial warrant or subpoena. It would also require the employer to give written notice to employees of any official inspection of the employer’s I-9 records, along with the results of any such inspection. Finally, this bill would prohibit employers from reverifying the employment eligibility of a current employee in a manner not required by federal law. The bill would impose penalties of between $2,000 to $10,000 per violation.
AB 1008 (Ban the Box): This bill would prohibit employers from including criminal history questions on their employment applications and from inquiring into an applicant’s criminal history at any time prior to a conditional offer of employment being made. This bill would also require an employer who intends to deny an applicant a position of employment solely or in part because of the applicant’s conviction history 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, and to consider certain topics when making that assessment. The bill would require an employer who makes a preliminary decision to deny employment based on that individualized assessment to provide the applicant written notification of the decision. The bill would require the notification to contain specified information. The bill would grant an applicant 5 business days to respond to that notification before the employer may make a final decision. If the applicant notifies the employer in writing that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the bill would grant the applicant an additional 5 business days to respond to the notice. The bill would require an employer to consider information submitted by the applicant before making a final decision. The bill would require an employer who has made a final decision to deny employment to the applicant to notify the applicant in writing of specified topics.
AB 1209 (Gender Pay Data Reporting): This bill would require employers with 500 or more California employees to, beginning July 1, 2019, collect the following information concerning gender pay differentials:
(A) The difference between the mean wages of male exempt employees and female exempt employees located in California, by each job classification or title.
(B) The difference between the median wages of male exempt employees and female exempt employees located in California, by each job classification or title.
(C) The difference between the mean wages of male board members and female board members located in California.
(D) The difference between the median wages of male board members and female board members located in California.
(E) The number of employees used for the determination of subparagraphs (A) and (B).
For purposes of this paragraph, “exempt” means not subject to overtime requirements as an administrative, executive, or professional employee. The bill would further require covered employers, beginning July 1, 2020 and biennially thereafter, to provide the data collected to the Secretary of State, who would then publish it on an Internet site available to the public.
AB 46 (Gender Pay Equality): This bill would provide that California’s Equal Pay Act applies to public employers as well as private employers.
AB 568 (School Districts/Community Colleges Paid Maternity Leave): This bill would require school districts and community colleges to provide at least 6 weeks of paid leave for pregnancy, childbirth and related conditions.
AB 569 (Discrimination/Reproductive Health): This bill would prohibit employers from taking adverse action against an employee based on the employee’s (or employee’s family members’) reproductive health care decisions, including but not limited to the use of any device, drug, or medical service. An aggrieved employee would be entitled to recover a penalty pursuant to Labor Code section 98.6, as well as reinstatement, lost wages, interest, and other compensation or equitable relief appropriate to the circumstances. Employers with employee handbooks would be required to include notice of these rights and remedies in the handbook.
AB 978 (OSHA IIPPs): This bill would require an employer who receives a written request for a paper or electronic copy of its written injury prevention program from a current employee, or his or her authorized representative, to comply with the request as soon as practicable, but no later than 10 business days from the date the employer receives the request. The bill would require the employer to provide the copy of the written injury prevention program free of charge.
AB 1701 (Contractor Liability/Wages): This bill would provide that for contracts entered into on or after January 1, 2018, a direct contractor making or taking a contract in the state 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 direct contractor and the owner. The direct contractor’s liability would extend only to any unpaid wage, fringe or other benefit payment or contribution, including interest owed, but would not extend to penalties or liquidated damages. The bill would allow either the Labor Commissioner or a wage claimant to bring a civil action against a direct contractor to collect wages owed.
SB 63 (Expansion of Parental Leave Rights): This bill would provide that an employee who has at least 12 months of service and 1250 hours of service within the prior 12 months, and who works at a worksite in which the employer employs at least 20 employees within 75 miles, is entitled 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. The employer would also be required to maintain the employee’s group health coverage during such leave, on the same terms as if the employee was actively reporting to work.
SB 306 (Retaliation Claims; Labor Commissioner): This bill would expand the Labor Commissioner’s authority by allowing the Labor Commissioner’s office to investigate suspected instances of retaliation even where no employee complaint has been filed, where the Labor Commissioner’s suspicion arises during the course of a field inspection or wage adjudication. The bill would also authorize the Labor Commissioner’s office to petition a court (prior to any actual finding of retaliation) for temporary or preliminary injuctive relief to protect an employee who the Labor Commissioner reasonably believes is the victim of retaliation.
SB 396 (Expansion of Harassment Training): California’s Fair Employment and Housing Act already requires employers with 50 or more employees to provide at least 2 hours of prescribed training and education regarding sexual harassment to all supervisory employees within 6 months of their assumption of a supervisory position and once every 2 years thereafter. This bill would require covered employers to include information on harassment based on gender identity, gender expression, and sexual orientation as a component of that prescribed training.
The Governor has until October 15, 2017 to consider whether to sign these bills into law or to veto them. Bills that are signed into law generally take effect January 1 of the following year, unless otherwise specified in the text of the legislation. Of note, AB 1565, which would have increased the minimum salary to qualify for exempt status under California’s white collar exemptions to $3,956 per month ($47,472 per year), was placed on the Legislature's inactive file, which means it did not pass this session but could be taken up again next year.