More Employee-Friendly Employment Laws Enacted in California
Topics: New Laws & Legislation
This weekend, Governor Brown signed into law several more employee-friendly bills. Unfortunately, none of the bills are helpful for California employers. Here is the last round of bills to be signed into law (in addition to those we reported on last week) this legislative session:
AB 1008 (Ban the Box): Effective January 1, 2018, this new law amends the California Fair Employment and Housing Act to prohibit employers with 5 or more employees from inquiring about criminal history on an employment application and/or at any time (including the interview process) prior to making a conditional offer of employment. This law also requires 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 sought, considering the nature and gravity of the offense, the amount of time that has passed, and the nature and duties of the job sought by the applicant. An employer who makes a preliminary decision to deny employment based on that individualized assessment must provide the applicant a written notification of the preliminary decision that identifies the disqualifying conviction(s) and informs the applicant that he or she may provide a response that includes evidence challenging the accuracy of the conviction information and/or demonstrating rehabilitation or other mitigating circumstances. The employer also must provide a copy of the conviction history report, if any. (The employer may, but is not required to, explain or justify the reasoning for its preliminary decision.) The applicant must be provided with at least 5 business days to respond (before the employer can make a final decision on employment). 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 applicant must be given an additional 5 business days to respond to the notice. The employer is required to consider any information submitted by the applicant before making a final decision. If a final decision is made to deny employment, the employer again must provide written notification to the applicant and inform the applicant of his or her right to file a complaint with the Department of Fair Employment and Housing and/or of any internal appeal rights the applicant may have to challenge the decision. (Again, the employer may, but is not required to, explain its justification/reasoning for its final decision.) This new law does not apply in those limited circumstances where a public or private employer is required by law to conduct a criminal background check or to restrict employment based on criminal history. Covered California employers should familiarize themselves with the requirements of this new law and modify their employment applications and hiring processes accordingly. The full text of the bill is available here.
AB 1701 (Contractor Liability/Wages): This new law provides 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 extends only to any unpaid wage, fringe or other benefit payment or contribution, including interest owed, but does not extend to penalties or liquidated damages. The Labor Commissioner or a wage claimant may bring a civil action against a direct contractor to collect wages owed. The full text of this bill is available here.
AB 46 (Gender Pay Equality): This new law simply provides that California’s Equal Pay Act applies to public employers just as it applies to private employers. The text of the bill is available here.
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. Effective January 1, 2018, this new law requires covered employers to include information on harassment based on gender identity, gender expression, and sexual orientation as a component of that prescribed training. Employers also have to publish new/amended posters (to be developed by the Department of Fair Employment and Housing) on the subjects of harassment and transgender rights. The text of the bill is available here.
On the positive side, the Governor did veto the following bills that would have imposed new burdens on California employers:
AB 978 (OSHA IIPPs): This bill would have required 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, and to provide the copy of the written injury prevention program free of charge.
AB 1209 (Gender Pay Data Reporting): This bill would have required 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).
The bill would have further required 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 568 (School Districts/Community Colleges Paid Maternity Leave): This bill would have required 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 have added a new provision to the Labor Code prohibiting 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, and would have exposed employers to new litigation risk. 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.