Coming Soon: new employment laws


The 2017 legislative year has come to a conclusion, and Governor Jerry Brown has now signed into law a large number of bills that pertain to labor and employment issues, ranging from teacher retirement funding to hazardous materials notification.

Each of the new laws briefly summarized below will take effect on Jan. 1, 2018, leaving employers precious little time to prepare. As always, this article does not substitute for the advice of legal counsel.

Antidiscrimination Protections – Veterans.
Assembly Bill 1710 expands protections for military personnel by prohibiting discrimination in all “terms, conditions or privileges” of employment.
Antiharassment Training.

Under Senate Bill 396, employers with five or more employees must prominently post a workplace notice, to be developed by the California Department of Fair Employment and Housing, regarding transgender rights.

In addition, employers with 50 or more employees — employers who are already required to provide sexual harassment training — must include training addressing harassment based on gender identity, gender expression and sexual orientation.

Such training must be conducted by educators with knowledge and expertise in these topics and must include practical examples. In addition, AB 295 requires farm labor contractors to provide sexual harassment training to all personnel, including supervisory and agricultural employees.

Construction Contractor Liability.
For certain construction contracts entered into on or after Jan. 1, 2018, AB 1701 provides that direct contractors must assume and are liable for unpaid wages, benefits or contributions that a subcontractor owes for labor connected to the contract.

Criminal History.
As expected, Gov. Brown approved a broadened, statewide “ban-the-box” provision, in AB 1008. Pursuant to AB 1008, all employers in California with five or more employees are forbidden from asking an applicant to disclose conviction information until the applicant is determined qualified for the position.

Consideration of an applicant’s criminal history will be permissible only after the employer has made a conditional offer of employment. Once that offer has been made, and the criminal history obtained, AB 1008 further provides that the employer cannot deny an applicant a position solely or in part because of conviction history until the employer performs an individualized assessment of the nature of the conviction and its possible relation to the job applied for.

Enforcement Actions.
Under SB 306, the state Division of Labor Standards Enforcement can initiate an investigation of employers it suspects discharged or otherwise discriminated against an individual in violation of any law under the department’s jurisdiction — with or without receiving any complaint from an allegedly aggrieved employee.

The department can proceed without a complaint when suspected retaliation occurred during the course of adjudicating a wage claim, during a field inspection or in instances of suspected unlawful immigration-related threats.

Human Trafficking Posting Requirements.
California law currently requires certain types of employers (i.e., alcohol retailers, airports, emergency rooms and adult- or sexually-oriented businesses) to post notice concerning human trafficking and the hotlines available for assistance. AB 260 extends this requirement to hotels, motels and bed and breakfast inns.

Immigration Enforcement.
AB 450 generally restricts public and private employers from voluntarily permitting federal immigration officials to enter nonpublic areas of a workplace. Access is nonetheless required if otherwise required by federal law or if the immigration agent has a judicial warrant.

Parental Leave.
Under SB 63, the New Parent Leave Act, California employers of between 20 to 49 employees must provide employees with 12 weeks of unpaid, job-protected, parental bonding leave.
Salary History and Equal Pay.

AB 168 bans employer inquiries into an applicant’s prior salary history. No employer may rely on an applicant’s prior salary history “as a factor in determining whether to offer employment … or what salary to offer an applicant.”

Accordingly, employers and their agents can no longer ask candidates, or their current or former employers, what candidates have earned in the past. An employer must, upon reasonable request, provide an applicant with the pay scale assigned to the position sought. Salary history may be discussed if an applicant “voluntarily and without prompting” discloses his or her history to a potential employer.

All in all, employers in the Golden State have numerous compliance challenges to tackle before they ring in the new year.

– Bruce Sarchet is an attorney with the firm of Littler Mendelson and represents employers in labor and employment law matters. You can contact him at [email protected]


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