Last month we explained that the Governor had before him a whole litany of employee protections and all he need do is sign them into law. The signing deadline was October 15. 2017. Predictably, many were signed, but not all. Here are thumbnails of the some of the ones that made the cut:
Salary Inquiry Prohibited: It is now unlawful in California for employers, including state and local governments, to ask applicants about their prior salary, compensation, and benefits, although an employee may voluntarily disclose such information and the employer may consider the information. Employers must also provide, upon a job applicant’s reasonable request, the position’s pay scale. This law will have a significant impact on employee hiring practices. We recommend a legal review of those practices to assure compliance with this new prohibition.
Prior Conviction History: Employers with five or more employees are now prohibited from (1) including on any employment application a question seeking disclosure of a job applicant’s conviction history, (2) inquiring into or considering an applicant’s conviction history until after extending a conditional offer of employment, and (3) while conducting a conviction history background check in connection with an employment application, considering, distributing, or disseminating information related to (a) certain arrests not followed by a conviction, (b) referral to or participation in a pretrial or post trial diversion program, and (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated.
There is an extensive analytical and procedural process required by this law. Undertake a legal review of your hiring practices and decide if you need to ask the question. If you do, seek qualified legal counsel on how to comply with this new law.
Expanded Parental Leave: The protections of the California Family Rights Act have been extended to employees of small employers, those with at least 20 employees within 75 miles. These employers are now prohibited from refusing to allow employees — with more than 12 months and at least 1,250 hours of service — 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. An employer employing both parents who both are entitled to leave for the same child does need not give more than 12 weeks of leave total to the employees (which may be granted simultaneously if the employer chooses). An employer may now recover the costs of maintaining the health plan for employees that do not to return to work after their leave exhausts because of a reason other than a serious health condition or other circumstances beyond the employee’s control.
Commencing on January 1, 2018 and ending January 1, 2020, the Department of Fair Employment and Housing will create a parental leave mediation pilot program. An employer may request all parties to participate in mediation within 60 days of receiving a right-to-sue notice. The employee cannot sue and the statute of limitations is tolled until the mediation is complete.
The landscape for parental leave has changed and so must the way employers approach such leave. Consult with qualified legal counsel to assure your business does it properly.
Immigrant Worker Protection Act: California employers are now prohibited from providing immigration enforcement agents with access to non-public areas of a workplace, absent a judicial warrant, and access to, or review or receipt of, employee records without a subpoena or court order. Employers must provide current employees with notices of an immigration agency’s inspection of I-9 Employment Eligibility Verification forms or other employment records within 72 hours of receiving the federal notice of inspection and provide affected
employees a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms, upon reasonable request. The law imposes substantial penalties to be paid to the State for violation of its provisions.
Whether this law will withstand a Federal Constitutional challenge is uncertain. However, the penalties and liabilities created for noncompliance do not permit employers to ignore it.
Gender Harassment Training: Employers with 50 or more employees must add items to their biennial supervisory training to prevent sexual harassment. The additional content includes practical examples to address harassment based on gender identity, gender expression, and sexual orientation. Employers are now required to post a DFEH-developed poster regarding transgender rights.
The information presented is not intended to be, and does not constitute, “legal advice.” Because each situation varies, and only brief summary information is provided here, you should not use this information as a basis for action unless you have independently verified with your own counsel that it applies to your particular situation.
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