2018 Employment Law Updates

by Wendel, Rosen, Black & Dean LLP

Wendel, Rosen, Black & Dean LLP

California employers will face a barrage of new restrictions and requirements in 2018. Moreover, the administrative agencies that are responsible for investigating violations of the employment laws and enforcing those laws have added new staff. Employers who are not compliant are more likely than ever to be caught in an investigation or enforcement action.

Compensation Issues During Interview

California employers have routinely asked job applicants to state their current salary. The legislature believed that relying on salary history may perpetuate historic pay disparities. In order to avoid this result, employers may no longer ask job applicants to provide salary history. In addition, the employer may not rely on the applicant’s salary history information in determining whether to extend a job offer or what salary to offer. If an applicant volunteers her or his salary history, without prompting, the employer may consider any voluntarily disclosed information in determining salary. The employer may not, however, use salary history as a justification for pay disparities.

Employers should ideally determine the pay scale before posting a position. The employer is now obligated to provide the pay scale for a position to an applicant, if the applicant makes a reasonable request. The statute does not discuss when a request is reasonable. It seems logical to require the applicant to have the minimum qualifications for the position, or to pass the first level of screening before a request is reasonable. However, announcing the pay range as part of the job posting, or early in the interview process, may result in candidates taking themselves out of consideration if their pay expectations are in excess of the established range.

What to Do: Employers should review their job application forms and any prepared interview outlines to assure that they are not asking applicants to provide information about salary. Employers should be prepared to reveal the compensation range to job applicants.

Conviction Issues During Interview

Employers with 5 or more employees may not ask job applicants to disclose criminal convictions until the employer extends a conditional offer of employment. If the employer does obtain information regarding an applicant’s past convictions, the employer must make an individualized assessment of whether the applicant’s conviction history has a direct and adverse relationship with the specific duties of the job. In conducting this assessment, the employer is required to consider (i) the nature and gravity of the offense or conduct, (ii) the time that has passed since the offense or conduct and completion of the sentence, and (iii) The nature of the job held or sought.

An employer who intends to deny employment because of the applicant’s criminal history must provide the applicant written notification of the decision and grant the applicant 5 business days to respond to that notification before the employer makes a final decision. If the applicant provides written notice that he or she disputes the accuracy of the conviction history and is obtaining evidence to support that assertion, the applicant is given an additional 5 business days to respond to the notice. The employer must consider any information provided 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. The bill would exempt specified positions of employment from the provisions of the bill.

What to Do: Employers should review their job application forms and any prepared interview outlines to assure that they are not asking applicants to provide information about prior convictions. Employers should delay background checks that seek information about criminal convictions until after they have extended a conditional offer of employment. It would also be a good practice to develop model letters communicating hiring decisions that are based, in any part, on the applicant’s criminal history.

Small Business Parental Leave Requirement

Employers who have more than 20 employees are now required to provide unpaid parental leave that is similar to that available under the California Family Rights Act and the federal Family and Medical Leave Act. Employees are eligible for this leave if they (1) have more than 12 months of service with the employer, (2) have worked at least 1,250 hours during the 12-month period before they begin the leave, and (3) works at a worksite in which the employer employs at least 20 employees within 75 miles. This third requirement will expand parental leave for some larger employers, who were previously required to provide leave only to employees who worked at a location where there were 50 employees within 75 miles.

The employee is entitled to take up to 12 weeks of parental leave to bond with a new child. The leave must be taken within one year of the child’s birth, adoption, or foster care placement and may be taken intermittently.

The leave is not paid, but the employee may elect to use vacation pay, paid sick time, or other accrued paid time off. In addition, the employer must maintain the employee’s group health insurance, on the same terms as the insurance would be provided if the employee was working. If an employee contributes to the insurance premium, it is a good idea to make arrangements for that contribution before the employee begins his or her leave.

If both parents work for the same employer, either or both can take new parent leave. The employer may cap the total time off for the family at 12 weeks. The employer may grant simultaneous leave to the parents, but is not required to do so.

At the end of the leave, the parent is entitled to return to her or his position, or a comparable position.

What to Do: Employers with more than 20 employees should review their employee handbook leave provisions to determine if they must provide new parent leave. Those employers should make employees aware that new parent leave is available, by assuring that workplace posters are up to date. Employers should prepare to adjust workflow to assure that they can cover the additional protected time off.

New Protections for Immigrants

Immigrant protections are strengthened each year. California recognizes that federal law requires completion of I-9 Employment Eligibility Verification Forms and gathering appropriate documentation. The form was recently updated, as was the list of appropriate documents. After January 1, 2018, California employers may not reverify the employment eligibility of a current employee unless reverification is required under federal law.

Employers may not voluntarily consent to an immigration enforcement agent entering nonpublic areas of the workplace without a warrant, unless otherwise required to do so under federal law. Similarly, employers may not voluntarily permit an immigration enforcement agent to access, review, or obtain employee records without a subpoena or court order, unless otherwise required to do so under federal law.

If an immigration agency inspects I-9 Employment Eligibility Verification forms or other employment records, the employer has 72 hours to provide current employees with notice of the inspection. The notice is to be posted in the language the employer normally uses to communicate employment information. The California Labor Commissioner is to provide a model notice no later than July 1, 2018.

The penalties for violation of this law range from $2,000 to $5,000 for a first violation and from $5,000 to $10,000 for each subsequent violation.

What to Do: Employers should review their federal I-9 Employment Eligibility Verification forms to assure that they are using the most current version. Employers should also assure that their verification and re-verification process does not exceed what is required under federal law. In addition, any employer who receives a request to inspect the workplace or employment records should verify that the requesting party has a warrant, subpoena, or court order. Any inspection should be limited to what is required under the warrant, subpoena, or court order.

Expanded Harassment Prevention Training

Harassment prevention training that employers with 50 or more employees must provide to supervisors must now include training on gender identity, gender expression, and sexual orientation.

What to Do: Verify that gender identity, gender expression, and sexual orientation are discussed in any harassment prevention training.

New Workplace Notices

Employers subject to the Fair Employment and Housing Act are required to post a poster developed by the Department of Fair Employment and Housing regarding transgender rights in a prominent and accessible location in the workplace.

Employers with 25 or more employees must provide each employee with written notice of their right to protected time off if they are a victim of domestic violence, sexual assault, or stalking. All other employees are entitled to receive a notice regarding this leave upon request. The Labor Commissioner has issued a sample notice that contains all required language, which can be easily included in a new hire package.

What to Do: Assure that all workplace posters are current.

Increased Minimum Wages

Starting January 1, 2018, state minimum wage increases to $11.00 per hour for employers with 26 or more employees, $10.50 for employers with 25 or fewer employees.

Many local minimum wages will also increase as of January 1, 2018. The following are Bay Area jurisdictions with minimum wage increases: El Cerrito, $13.60; San Jose, $13.50, Oakland, as yet unknown, but will be tied to the increase in the Consumer Price Index.

Other local minimum wages will increase throughout 2018, including: San Francisco, $15.00, starting July 1, 2018; Emeryville: $15.00 per hour for employers with 55 or fewer employees and $15.60 per hour for 56 or more employees, starting July 1, 2018; Berkeley: increase to $13.75 as of Oct. 1, 2017 and is projected to increase to $15.00 on Oct. 1, 2018.

What to Do: Assure that all employees are paid at least minimum wage.

Enforcement Activities Expanded

The Labor Commissioner’s powers to investigate retaliation complaints have been greatly expanded. The Labor Commissioner can now begin an investigation even if there is not a complaint, if retaliation or discrimination is suspected during the course of a wage claim or other investigation being conducted by the Labor Commissioner.

Moreover, the Labor Commissioner can seek injunctive relief, preventing an employer from firing or disciplining an employee, if the Labor Commissioner has reasonable cause to believe that any person has engaged in or is engaging in discrimination or retaliation.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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