California Employment Law Update: What’s New for 2018

by Davis Wright Tremaine LLP

Davis Wright Tremaine LLP

2017 has been a busy year for the California legislature, with the result that a number of new and significant employment laws have been added to the books and will take effect on January 1, 2018. Employers should take note of the following key developments and adjust their policies and practices accordingly:

Ban on Seeking Job Applicant’s Compensation History (AB 168)

AB 168 created Labor Code Section 432.3, which applies to all employers, including all public employers, regardless of size. Under Section 432.3, employers will be prohibited from relying on an applicant’s compensation history as a factor in determining whether to make a job offer or what compensation to offer an applicant. For purposes of the statute, “compensation” includes not only salary, but benefits as well. Employers may not ask applicants about their compensation history, nor otherwise seek it from a third party, such as a recruiter. However, if an applicant voluntarily and without prompting discloses his or her compensation history, the employer may consider that information in determining its compensation offer, subject to Section 432.3(i), which explicitly states that prior compensation alone cannot be used to justify a disparity in compensation. The new law also requires employers to provide the “pay scale” for a position upon an applicant’s reasonable request. While the term “pay scale” is not defined by the statute, the provision of a “salary range” for the position would appear to satisfy the new law’s requirement. The new statute can be found here.

In light of this new restriction, employers should remove questions about prior compensation from their applications and any applicant interview guidelines, advise Human Resources staff, hiring managers, and recruiters that they are not to seek compensation history information, and prepare to provide a pay scale for each open position. While the law does not require that a pay scale be provided to an applicant in writing, doing so may be the better practice as documentation will avoid any possible confusion or ambiguity in terms of what information was provided and when.

Please see our earlier Advisories on this significant new statute, which can be found here and here.

Ban the Box – Job Applicants’ Conviction History (AB 1008)

Labor Code Section 432.7 has long prohibited an employer, whether a private individual, corporation or public agency, from asking a job applicant to disclose, or from utilizing as a factor in determining any condition of employment, information concerning an arrest or detention that did not result in a conviction, or information concerning a referral or participation in any pre-trial or post-trial diversion program.

AB 1008, which adds new Government Code Section 12952 to the Fair Employment and Housing Act (“FEHA”), expands existing protections by prohibiting covered employers with five or more employees from (1) including on an employment application any question seeking disclosure of an applicant’s conviction history, (2) inquiring into or considering an applicant’s conviction history until after a conditional employment offer has been made, and (3) considering, distributing, or disseminating information developed as a result of a background check that is related to (a) certain arrests not followed by a conviction, (b) referral to or participation in a pre-trial or post-trial diversion program, and (c) convictions that have been sealed, dismissed, expunged, or statutorily eradicated. The new statute can be found here.

When an employer intends to deny an applicant a job offer either solely or in part because of the applicant’s conviction history, AB 1008 requires the employer to make an individualized assessment and comply with certain notice procedures before employment may be denied.

Please see our earlier Advisories on this new statute and related regulations promulgated by the Fair Employment and Housing Council here and here

Requirement to Cover Gender Identity as Part of Supervisor Trainings on Prevention of Sexual Harassment (SB 295)

Employers with 50 or more employees must incorporate information on harassment based upon gender identity, gender expression, and sexual orientation into the two-hour sexual harassment prevention training already required for all supervisory employees. In addition, employers with five or more employees must prominently post a new poster issued by the DFEH (available here) that incorporates information from the FEHC regulations on gender identity and expression that were adopted in July 2017. (These regulations were covered in a previous Advisory).

Expansion of 12-Week Parental Leave to Employers with 20 or More Employees (SB 63)

Under the existing California Family Rights Act (“CFRA”), eligible employees who work for employers with 50 or more employees may take up to 12 weeks of leave in any 12-month period for the birth, adoption, or foster care placement of a child. The New Parent Leave Act extends these parental-leave provisions of CFRA to employees working for employers with 20 or more employees. The new law can be found here.

Employers should note that this change in the law applies only to leave taken for the birth, adoption, or foster care placement of a child; the New Parent Leave Act does not extend to employees of smaller employers the right to leave under CFRA for an employee’s or a family member’s serious health condition. Also, all other threshold requirements of CFRA still must be met to qualify for the leave. As with “baby bonding” leave under CFRA, leave under the New Parent Leave Act is in addition to the up to four months Pregnancy Disability Leave (“PDL”) available to employees who are disabled by pregnancy, childbirth, or related medical conditions.

Immigrant Worker Protection Act (AB 450)

AB 450, known as the Immigrant Worker Protection Act, prohibits employers from allowing immigration enforcement agents to (1) access non-public areas of a workplace without a warrant and/or (2) access, review, or obtain employee records without a subpoena or court order, subject to the exception regarding I-9 forms discussed below. AB 450 adds Sections 7285.1, 7285.2, and 7285.3 to the Government Code and Sections 90.2 and 1019.2 to the Labor Code, and can be found here.

AB 450 requires employers to post, at the workplace, any notice of a federal immigration agency’s intent to inspect I-9 forms or other employment records within 72 hours of the employer’s receipt of such notice. The Labor Commissioner is required to provide a template for such notice by July 1, 2018, although the posting requirement is in effect as of January 1, 2018. In addition to posting a notice, employers must, upon reasonable request, provide any affected employees with a copy of the actual inspection notice. Employers must also provide to affected employees (and any authorized representative, such as a union) a copy of the immigration agency’s inspection results, as well as any obligations of the employer and any affected employees that result from the inspection.

Employers who provide access to immigration enforcement agents in violation of AB 450 and/or who fail to provide the required notices are subject to penalties of between $2,000 and $5,000 for a first violation, and between $5,000 and $10,000 for each subsequent violation. These penalties are recoverable by the Labor Commissioner.

AB 450 also prohibits employers from re-verifying an employee’s employment eligibility at a time or in a manner not required by federal law. Violations of this requirement subject employers to a penalty of up to $10,000, also recoverable by the
Labor Commissioner.

Other Noteworthy Developments

Reminder of Increase in Minimum Wage and Minimum Salary Basis

California’s minimum wage will increase on January 1, 2018 to $10.50 per hour for employers with 25 or fewer employees, and to $11.00 per hour for employers with 26 or more employees (additional information on how employees are counted for purposes of this rule is available here). As a result in this increase, the minimum salary an employee must earn to qualify for exempt status under California law will increase to $43,680 per year ($840 per week) for employers with 25 or fewer employees, and to $45,760 per year ($880 per week) for employers with 26 or more employees. These rates are scheduled to increase again on January 1, 2019.

Employers should also be aware of any local minimum wage ordinances that require a higher minimum wage than state law (although such local requirements will not affect the minimum salary required to qualify for exempt status). Note that the federal minimum salary requirement for determining exempt status announced by the U.S. Department of Labor last year is tied up in the courts and its ultimate outcome remains uncertain. 

Wage Claim Liability for Construction Contractors (AB 1701)

AB 1701 adds Section 218.7 to the Labor Code, and applies to contracts entered into on or after January 1, 2018. Under this new law, construction contractors will be jointly and severally liable with their subcontractors for any failure by a subcontractor to pay wages, benefits, or health and welfare pension fund contributions to its workers. Section 218.7 will also require subcontractors to provide payroll records upon request by a direct contractor.

Requirement to Provide Nurse Case Manager to Assist Employees Injured by Domestic Terrorism (AB 44)

AB 44 requires employers to provide employees who sustain industrial injuries as a result of domestic terrorism with the immediate support of a nurse case manager to assist with coordination of medical treatment.

Responsible Beverage Service Training Program Required by 2021 (AB 1221)

AB 1221 requires the Department of Alcoholic Beverage Control to develop and administer a training course on Responsible Beverage Service, which will be required for alcohol servers starting in 2021.

Expansion of DLSE Investigation Powers (SB 306)

SB 306 enables the California Labor Commissioner to investigate suspicions of retaliation that arise in the course of investigation of wage claims or other matters within the Labor Commissioner’s jurisdiction, even in the absence of a complaint by the affected employee. In addition, this new law expands the remedies that the DLSE may impose if retaliation is found. Our Advisory on these amendments can be found here.

Recognition of Nonbinary Gender on State Identification Documents (SB 179) 

SB 179 permits Californians to specify “nonbinary” as a third gender option (in addition to male and female) on birth certificates and drivers’ licenses. In addition, this law streamlines the procedures for changing gender on state identification documents, and eliminates the requirement that a person provide evidence of clinical treatment before applying for a change of gender. Although this law does not explicitly concern employment, employers in California should nevertheless be aware of this change, and be prepared, in those instances where employee identification is required, to accept identification that includes the nonbinary designation. See also the recent Gender Identity and Gender Expression Regulations (here) and our related advisory (here).

Expansion of Slavery and Human Trafficking Notice Requirements (AB 260 and SB 225)

Under existing law, certain business establishments are required to post a notice containing instructions for reporting forced labor and other human trafficking activity. AB 260 expands the types of business establishments subject to the posting requirement to include hotels, motels, and bed and breakfast inns.

SB 225 provides that, starting on January 1, 2019, the notice must include a phone number to which a person can send a text message to receive services and support relating to slavery and human trafficking. Employers should check the website of the California Attorney General for a new sample notice as that date approaches. 


  • AB 569, which would have added a new provision to the Labor Code prohibiting discrimination against employees (and their dependents or family members) for “reproductive health decisions.” 
  • AB 1209, which would have required large California companies (500+ California employees) biennially to collect and report data on gender wage differentials relating to their workforces and board members.

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.

© Davis Wright Tremaine LLP | Attorney Advertising

Written by:

Davis Wright Tremaine LLP

Davis Wright Tremaine LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide

JD Supra Privacy Policy

Updated: May 25, 2018:

JD Supra is a legal publishing service that connects experts and their content with broader audiences of professionals, journalists and associations.

This Privacy Policy describes how JD Supra, LLC ("JD Supra" or "we," "us," or "our") collects, uses and shares personal data collected from visitors to our website (located at (our "Website") who view only publicly-available content as well as subscribers to our services (such as our email digests or author tools)(our "Services"). By using our Website and registering for one of our Services, you are agreeing to the terms of this Privacy Policy.

Please note that if you subscribe to one of our Services, you can make choices about how we collect, use and share your information through our Privacy Center under the "My Account" dashboard (available if you are logged into your JD Supra account).

Collection of Information

Registration Information. When you register with JD Supra for our Website and Services, either as an author or as a subscriber, you will be asked to provide identifying information to create your JD Supra account ("Registration Data"), such as your:

  • Email
  • First Name
  • Last Name
  • Company Name
  • Company Industry
  • Title
  • Country

Other Information: We also collect other information you may voluntarily provide. This may include content you provide for publication. We may also receive your communications with others through our Website and Services (such as contacting an author through our Website) or communications directly with us (such as through email, feedback or other forms or social media). If you are a subscribed user, we will also collect your user preferences, such as the types of articles you would like to read.

Information from third parties (such as, from your employer or LinkedIn): We may also receive information about you from third party sources. For example, your employer may provide your information to us, such as in connection with an article submitted by your employer for publication. If you choose to use LinkedIn to subscribe to our Website and Services, we also collect information related to your LinkedIn account and profile.

Your interactions with our Website and Services: As is true of most websites, we gather certain information automatically. This information includes IP addresses, browser type, Internet service provider (ISP), referring/exit pages, operating system, date/time stamp and clickstream data. We use this information to analyze trends, to administer the Website and our Services, to improve the content and performance of our Website and Services, and to track users' movements around the site. We may also link this automatically-collected data to personal information, for example, to inform authors about who has read their articles. Some of this data is collected through information sent by your web browser. We also use cookies and other tracking technologies to collect this information. To learn more about cookies and other tracking technologies that JD Supra may use on our Website and Services please see our "Cookies Guide" page.

How do we use this information?

We use the information and data we collect principally in order to provide our Website and Services. More specifically, we may use your personal information to:

  • Operate our Website and Services and publish content;
  • Distribute content to you in accordance with your preferences as well as to provide other notifications to you (for example, updates about our policies and terms);
  • Measure readership and usage of the Website and Services;
  • Communicate with you regarding your questions and requests;
  • Authenticate users and to provide for the safety and security of our Website and Services;
  • Conduct research and similar activities to improve our Website and Services; and
  • Comply with our legal and regulatory responsibilities and to enforce our rights.

How is your information shared?

  • Content and other public information (such as an author profile) is shared on our Website and Services, including via email digests and social media feeds, and is accessible to the general public.
  • If you choose to use our Website and Services to communicate directly with a company or individual, such communication may be shared accordingly.
  • Readership information is provided to publishing law firms and authors of content to give them insight into their readership and to help them to improve their content.
  • Our Website may offer you the opportunity to share information through our Website, such as through Facebook's "Like" or Twitter's "Tweet" button. We offer this functionality to help generate interest in our Website and content and to permit you to recommend content to your contacts. You should be aware that sharing through such functionality may result in information being collected by the applicable social media network and possibly being made publicly available (for example, through a search engine). Any such information collection would be subject to such third party social media network's privacy policy.
  • Your information may also be shared to parties who support our business, such as professional advisors as well as web-hosting providers, analytics providers and other information technology providers.
  • Any court, governmental authority, law enforcement agency or other third party where we believe disclosure is necessary to comply with a legal or regulatory obligation, or otherwise to protect our rights, the rights of any third party or individuals' personal safety, or to detect, prevent, or otherwise address fraud, security or safety issues.
  • To our affiliated entities and in connection with the sale, assignment or other transfer of our company or our business.

How We Protect Your Information

JD Supra takes reasonable and appropriate precautions to insure that user information is protected from loss, misuse and unauthorized access, disclosure, alteration and destruction. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. You should keep in mind that no Internet transmission is ever 100% secure or error-free. Where you use log-in credentials (usernames, passwords) on our Website, please remember that it is your responsibility to safeguard them. If you believe that your log-in credentials have been compromised, please contact us at

Children's Information

Our Website and Services are not directed at children under the age of 16 and we do not knowingly collect personal information from children under the age of 16 through our Website and/or Services. If you have reason to believe that a child under the age of 16 has provided personal information to us, please contact us, and we will endeavor to delete that information from our databases.

Links to Other Websites

Our Website and Services may contain links to other websites. The operators of such other websites may collect information about you, including through cookies or other technologies. If you are using our Website or Services and click a link to another site, you will leave our Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We are not responsible for the data collection and use practices of such other sites. This Policy applies solely to the information collected in connection with your use of our Website and Services and does not apply to any practices conducted offline or in connection with any other websites.

Information for EU and Swiss Residents

JD Supra's principal place of business is in the United States. By subscribing to our website, you expressly consent to your information being processed in the United States.

  • Our Legal Basis for Processing: Generally, we rely on our legitimate interests in order to process your personal information. For example, we rely on this legal ground if we use your personal information to manage your Registration Data and administer our relationship with you; to deliver our Website and Services; understand and improve our Website and Services; report reader analytics to our authors; to personalize your experience on our Website and Services; and where necessary to protect or defend our or another's rights or property, or to detect, prevent, or otherwise address fraud, security, safety or privacy issues. Please see Article 6(1)(f) of the E.U. General Data Protection Regulation ("GDPR") In addition, there may be other situations where other grounds for processing may exist, such as where processing is a result of legal requirements (GDPR Article 6(1)(c)) or for reasons of public interest (GDPR Article 6(1)(e)). Please see the "Your Rights" section of this Privacy Policy immediately below for more information about how you may request that we limit or refrain from processing your personal information.
  • Your Rights
    • Right of Access/Portability: You can ask to review details about the information we hold about you and how that information has been used and disclosed. Note that we may request to verify your identification before fulfilling your request. You can also request that your personal information is provided to you in a commonly used electronic format so that you can share it with other organizations.
    • Right to Correct Information: You may ask that we make corrections to any information we hold, if you believe such correction to be necessary.
    • Right to Restrict Our Processing or Erasure of Information: You also have the right in certain circumstances to ask us to restrict processing of your personal information or to erase your personal information. Where you have consented to our use of your personal information, you can withdraw your consent at any time.

You can make a request to exercise any of these rights by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

You can also manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard.

We will make all practical efforts to respect your wishes. There may be times, however, where we are not able to fulfill your request, for example, if applicable law prohibits our compliance. Please note that JD Supra does not use "automatic decision making" or "profiling" as those terms are defined in the GDPR.

  • Timeframe for retaining your personal information: We will retain your personal information in a form that identifies you only for as long as it serves the purpose(s) for which it was initially collected as stated in this Privacy Policy, or subsequently authorized. We may continue processing your personal information for longer periods, but only for the time and to the extent such processing reasonably serves the purposes of archiving in the public interest, journalism, literature and art, scientific or historical research and statistical analysis, and subject to the protection of this Privacy Policy. For example, if you are an author, your personal information may continue to be published in connection with your article indefinitely. When we have no ongoing legitimate business need to process your personal information, we will either delete or anonymize it, or, if this is not possible (for example, because your personal information has been stored in backup archives), then we will securely store your personal information and isolate it from any further processing until deletion is possible.
  • Onward Transfer to Third Parties: As noted in the "How We Share Your Data" Section above, JD Supra may share your information with third parties. When JD Supra discloses your personal information to third parties, we have ensured that such third parties have either certified under the EU-U.S. or Swiss Privacy Shield Framework and will process all personal data received from EU member states/Switzerland in reliance on the applicable Privacy Shield Framework or that they have been subjected to strict contractual provisions in their contract with us to guarantee an adequate level of data protection for your data.

California Privacy Rights

Pursuant to Section 1798.83 of the California Civil Code, our customers who are California residents have the right to request certain information regarding our disclosure of personal information to third parties for their direct marketing purposes.

You can make a request for this information by emailing us at or by writing to us at:

Privacy Officer
JD Supra, LLC
10 Liberty Ship Way, Suite 300
Sausalito, California 94965

Some browsers have incorporated a Do Not Track (DNT) feature. These features, when turned on, send a signal that you prefer that the website you are visiting not collect and use data regarding your online searching and browsing activities. As there is not yet a common understanding on how to interpret the DNT signal, we currently do not respond to DNT signals on our site.

Access/Correct/Update/Delete Personal Information

For non-EU/Swiss residents, if you would like to know what personal information we have about you, you can send an e-mail to We will be in contact with you (by mail or otherwise) to verify your identity and provide you the information you request. We will respond within 30 days to your request for access to your personal information. In some cases, we may not be able to remove your personal information, in which case we will let you know if we are unable to do so and why. If you would like to correct or update your personal information, you can manage your profile and subscriptions through our Privacy Center under the "My Account" dashboard. If you would like to delete your account or remove your information from our Website and Services, send an e-mail to

Changes in Our Privacy Policy

We reserve the right to change this Privacy Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our Privacy Policy will become effective upon posting of the revised policy on the Website. By continuing to use our Website and Services following such changes, you will be deemed to have agreed to such changes.

Contacting JD Supra

If you have any questions about this Privacy Policy, the practices of this site, your dealings with our Website or Services, or if you would like to change any of the information you have provided to us, please contact us at:

JD Supra Cookie Guide

As with many websites, JD Supra's website (located at (our "Website") and our services (such as our email article digests)(our "Services") use a standard technology called a "cookie" and other similar technologies (such as, pixels and web beacons), which are small data files that are transferred to your computer when you use our Website and Services. These technologies automatically identify your browser whenever you interact with our Website and Services.

How We Use Cookies and Other Tracking Technologies

We use cookies and other tracking technologies to:

  1. Improve the user experience on our Website and Services;
  2. Store the authorization token that users receive when they login to the private areas of our Website. This token is specific to a user's login session and requires a valid username and password to obtain. It is required to access the user's profile information, subscriptions, and analytics;
  3. Track anonymous site usage; and
  4. Permit connectivity with social media networks to permit content sharing.

There are different types of cookies and other technologies used our Website, notably:

  • "Session cookies" - These cookies only last as long as your online session, and disappear from your computer or device when you close your browser (like Internet Explorer, Google Chrome or Safari).
  • "Persistent cookies" - These cookies stay on your computer or device after your browser has been closed and last for a time specified in the cookie. We use persistent cookies when we need to know who you are for more than one browsing session. For example, we use them to remember your preferences for the next time you visit.
  • "Web Beacons/Pixels" - Some of our web pages and emails may also contain small electronic images known as web beacons, clear GIFs or single-pixel GIFs. These images are placed on a web page or email and typically work in conjunction with cookies to collect data. We use these images to identify our users and user behavior, such as counting the number of users who have visited a web page or acted upon one of our email digests.

JD Supra Cookies. We place our own cookies on your computer to track certain information about you while you are using our Website and Services. For example, we place a session cookie on your computer each time you visit our Website. We use these cookies to allow you to log-in to your subscriber account. In addition, through these cookies we are able to collect information about how you use the Website, including what browser you may be using, your IP address, and the URL address you came from upon visiting our Website and the URL you next visit (even if those URLs are not on our Website). We also utilize email web beacons to monitor whether our emails are being delivered and read. We also use these tools to help deliver reader analytics to our authors to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

Analytics/Performance Cookies. JD Supra also uses the following analytic tools to help us analyze the performance of our Website and Services as well as how visitors use our Website and Services:

  • HubSpot - For more information about HubSpot cookies, please visit
  • New Relic - For more information on New Relic cookies, please visit
  • Google Analytics - For more information on Google Analytics cookies, visit To opt-out of being tracked by Google Analytics across all websites visit This will allow you to download and install a Google Analytics cookie-free web browser.

Facebook, Twitter and other Social Network Cookies. Our content pages allow you to share content appearing on our Website and Services to your social media accounts through the "Like," "Tweet," or similar buttons displayed on such pages. To accomplish this Service, we embed code that such third party social networks provide and that we do not control. These buttons know that you are logged in to your social network account and therefore such social networks could also know that you are viewing the JD Supra Website.

Controlling and Deleting Cookies

If you would like to change how a browser uses cookies, including blocking or deleting cookies from the JD Supra Website and Services you can do so by changing the settings in your web browser. To control cookies, most browsers allow you to either accept or reject all cookies, only accept certain types of cookies, or prompt you every time a site wishes to save a cookie. It's also easy to delete cookies that are already saved on your device by a browser.

The processes for controlling and deleting cookies vary depending on which browser you use. To find out how to do so with a particular browser, you can use your browser's "Help" function or alternatively, you can visit which explains, step-by-step, how to control and delete cookies in most browsers.

Updates to This Policy

We may update this cookie policy and our Privacy Policy from time-to-time, particularly as technology changes. You can always check this page for the latest version. We may also notify you of changes to our privacy policy by email.

Contacting JD Supra

If you have any questions about how we use cookies and other tracking technologies, please contact us at:

- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.