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December 2017

NEW Legislation for Employers – 2018 Legal Updates

As the 2017 year comes to an end, we provide a review of recent laws set to go into effect in California beginning in January 2018.  Employers, please be sure to take note of the following when reviewing your current policies:

Minimum Wage Increase

Effective January 1, 2018, California’s minimum wage will increase from $10.00/hour to $10.50/hour for businesses with 25 employees or less, and from $10.50/hour to $11.00/hour for employers with 26 or more employees. This escalation is part of California’s legislation directed towards increasing the state minimum wage to $15.00/hour by 2023. Employers should also be aware of local minimum wage ordinances which generally provide for a higher minimum wage than the state.

Immigration Enforcement

Set to go into effect on January 1, 2018, Assembly Bill 450 will require, among other things, that employers deny access to non-public work spaces by Immigration and Customs Enforcement (ICE) agents, unless presented with a judicial warrant. This legislation also mandates that employers deny ICE agents any access to, or retrieval of, employee records without a subpoena or warrant signed by a judge, subject to narrow exceptions. Additionally, in advance of any inspections of I-9 Employment Eligibility Verification forms or other employment records by an immigration agency, the law will require employers to provide at least 72 hours written posted notice to its employees in the language the employer normally uses to communicate with employees.  

Ban the Box Protections

This new legislation expands the protections afforded to job applicants with a criminal history. While current law prohibits state or local agencies from asking a job applicant to disclose information regarding a criminal conviction until the agency has determined the applicant meets the minimum qualifications for that position, this new bill now extends protections to all employers with five (5) or more employees.

As a result of this legislation, covered employers are now prohibited from including in any job application any question that requires disclosure of an applicant’s conviction history, and inquiring or considering the applicant’s conviction history until after the employer has made a conditional offer of employment. 

Should any employer intend to deny an applicant a position of employment based in part on his or her conviction history, the employer must consider the nature and gravity of the offense, the time that has passed since the conviction, and the nature of the job held or sought. Employers must then afford an applicant a reasonable time (5 business days) to respond to the employer’s decision before it becomes final.  This legislation is set to take effect on January 1, 2018.

Extended Leave for New Parents

The California Family Rights Act (CFRA) has, until recently, applied to those employers with 50 or more employees, and enabled those qualified to take protected leave for reasons of their own serious health condition, the serious health condition of an immediate family member, and the recent birth, adoption, or foster placement of a child – commonly referred to as “baby bonding” leave. Effective January 1, 2018, CFRA’s “baby bonding” leave will now apply to employers with at least 20 employees, and will allow for affected personnel to take up to 12 weeks of job protected leave within one year of the child’s birth, adoption, or foster care placement.

Just as with current law under the CFRA, in order to be eligible for baby bonding leave under this expansion of the CFRA’s coverage to smaller employers, an employee must have 12 months of service with the employer, have at least 1,250 hours of service with the employer during the previous 12-month period, and work at a worksite in which the employer employs at least 20 employees within 75 miles.

Salary Pay Inquiry Ban

Effective January 1, 2018, all California employers are now prohibited from seeking past salary information about an applicant for employment either through an agent, verbally, or in writing. However, an applicant may voluntarily disclose this information during an interview so long as he or she is not prompted.  Additionally, this law creates further obligations for employers who must provide the pay scale for the position being applied for to a job applicant upon reasonable request.  For more information on this ban, please see our article here.

Additional Harassment Training: Gender Identity, Gender Expression, and Sexual Orientation

California law already requires employers with 50 or more employees to provide a two hour long, interactive sexual harassment training to its managers and supervisors within six (6) months of hire, and every two (2) years thereafter.  Following the passage of this statute, this two hour training must now encompass topics related to gender identity, gender expression, and sexual orientation, and best practices for avoiding harassment in the workplace based on these protected characteristics. Employers will also be required to post a notice of transgender rights in the workplace, which is currently available on the Department of Fair Employment and Housing website.

Retaliation Protections

Current California law prohibits employers from terminating or taking otherwise adverse action against any employee or applicant because the employee has engaged in protected activity (i.e. reporting a violation, making a complaint, participating in an investigation, etc.)  Currently, once a complaint of retaliation is filed with the Labor Commissioner, the agency investigates, provides a report, and determines if a hearing is necessary. 

Beginning in 2018, California’s new statute authorizes the Labor Commissioner to bring a claim and commence an investigation of an employer if the agency even suspects that retaliation or discrimination is taking place during the course of a claim or inquiry – regardless of whether it has been reported by an employee.  Moreover, if the Commissioner has reasonable cause to believe that an individual is engaging in a violation, it may petition the court for injunctive relief, so long as that relief does not restrain an employer from administering discipline or terminating an employee for conduct unrelated to the claim of retaliation.

Notice of Human Trafficking

State law currently requires certain businesses to post a notice with information regarding slavery and human trafficking, including the names of nonprofit organizations and hotline numbers that provide support services which aid in the elimination of slavery and human trafficking. Pursuant to Senate Bill Nos. 225 and 260, these notices must now be posted in hotels, motels, and bed and breakfast inns, and be printed in English, Spanish, and any other language widely spoken in the county. 

Newly included employers are expected to comply with this notice requirement by January 1, 2018.  The Department of Justice will be updating the model notice by January 1, 2019, at which time all covered businesses will be expected to post this revised notice.

Liability for General Contractors

Effective January 1, 2018, general contractors can now be held liable for subcontractors who fail to pay their employees’ unpaid wages. Specifically, for all contracts entered into on or after January 1, 2018, a contractor who is forming a contract for the “erection, construction, alteration, or repair of a building, structure, or other private work” will be liable for any specified debt owed to a wage claimant incurred by a subcontractor. (Labor Code §218.7(a)(1).) The contractor’s liability is limited only to “any unpaid wage, fringe or other benefit payment or contribution” but does not include penalties or liquidated damages.  (Labor Code §218.7(a)(2).) Additionally, the Labor Commissioner may bring an action to enforce this liability against the general contractor. (Labor Code §218.7(b)(1).)

For questions regarding any of the new or updated laws and changes, please contact the Employment Law practice group at Gordon Rees Scully Mansukhani.

Employment Law

Employment Law